Laws For Women: How Empowering Are Triple Talaq & Other Bills?

Most amendments in women-centric laws are governed by the same patriarchal outlook that they claim to dispel.

Most amendments in laws claiming to protect women are governed by the same patriarchal outlook that they claim to dispel.(Photo: The Quint)

On 30th July 2019, the Upper House of Parliament (Rajya Sabha) passed The Muslim Women (Protection of Rights on Marriage) Bill, 2019 (triple talaq Bill). The Bill calls for criminalization of pronouncing triple talaq as a cognizable, non-bailable offence with imprisonment up to three years along with fine.

Notably, the Bill was the first legislation proposed by the Modi government in the Lok Sabha during its second term. The government is hailing it as a legislation aiming for gender justice and equality. The opposition has criticized the Bill for being a political agenda; a class legislation; an irrelevant intervention since the Supreme Court has already declared triple talaq as unconstitutional; over-regulation; unnecessarily conflating civil law with criminal law; among many others.

However, the Bill to me, (apart from probably being all these things or being none) points towards a much deeper problem of patriarchy, situated at the very core of our governance model.

Recent ‘Women-Friendly’ Laws

The present Bill is one of the many ‘legal protections’ being extended to women in recent times, by either the State, or state agencies such as the judiciary. Some of these changes. Some of these are:

• the 2017 amendment to the Maternity Benefit Act, extending the paid maternity leave for women;
• the judgment in Joseph Shine v Union of India – decriminalizing adultery under Section 497 of the Indian Penal Code;
• the Supreme Court judgment permitting entry to women of all ages to the Sabrimala temple;
• the judgment in Anurag Soni v State of Chhattisgarh, asserting that sex on the false promise of marriage is rape.

Most of these changes along with the proposed triple talaq bill have been well received by a large segment of the population as being progressive decisions intended to uplift the social position of women and defeating the patriarchal mindset that has been deciding and defining the role of women in India for centuries.

Most of the changes demonstrate an underlying assumption where women are the victim of the regressive nature of our society and need a saviour.

However, on closer examination it appears that in the hindsight most of, if not all, these reforms are governed by the same patriarchal outlook that they claim to dispel.

The State as the ‘Knight in Shining Armour’

Most of the changes demonstrate an underlying assumption where women are the victim of the regressive nature of our society and need a saviour. The State in these cases in some way tends to act as the typical ‘knight in the shining armour’ we read about in fairy-tales, who rescues the princess from the torments of her surroundings and lives happily ever after with her by his side. Through its policies, instead of actually working towards the goal of women empowerment and gender justice, the State tries to secure its position as the protector, often entering the private spaces of its people (particularly women) and depriving them of their agency.

The argument can be better understood by analyzing some of these women-centric reforms individually.

Maternity Act And Policing of Women’s Fertility

Taking into account, the Maternity Benefit (Amendment) Act of 2017, although it has laudably increased the duration of paid maternity leave from 12 weeks to 26 weeks; the benefit is limited to women having less than two surviving children. For expecting women who already have two surviving children, the period of paid leave shall be limited to 12 weeks. By keeping the discriminatory provision, the State is trying to intrude into the personal spheres of women’s lives, thereby forcing them to restrict the number of their progeny through back-handed measures.

By enforcing discriminatory benefits, the State is in itself acting as a patriarch who through its policies is governing the decision of the woman about whether to have children or not.

Considering the rising population and the problems associated with it, the State’s desire to impose a two-child norm is understandable. However, the solution should not be found in stealthily manipulating the number of children one is having. Apart from this, it should also be considered that in spite of a two-child policy, there could always be cases of accidental pregnancies where the women would not want to terminate the said pregnancy.

However by enforcing discriminatory benefits, the State is in itself acting as a patriarch who through its policies is governing the decision of the woman about whether to have children or not.

Similarly, when one looks at the Sabarimala judgment, it can be seen that in the name of equality, the difference amongst women was ignored. The case saw a large number of women devotees of Lord Ayyappa coming out in support of the age-old practice of restricting women of certain age from entering the temple. The judgment in the desire of ensuring gender justice and equality not only failed to ensure that the rights of those particularly impacted are protected; but also failed to take into account their lived experience.

Anurag Soni Case and Strengthening of Sexual Security Regime

Somewhere on the same lines, the judgment by Justices L Nageshwara Rao and MR Shah in the Anurag Soni case, apart from various other flaws, also diminishes the women’s right to agency. The judgment super-imposes a state-centric approach working towards establishing a sexual security regime.

Ratna Kapur demonstrates it well in her paper on Gender and Security in International Law and Post-colonial India, by making a study of the Delhi rape case. The State tends to use violence and wrongs against women to enforce stringent sentencing and strengthening its sexual security regime, rather than to enhance gender justice and status of women in the society.

The Anurag Soni judgment in one way reinforces the State’s idea of sexual security which prescribes that sexual intercourse should end in marriages. It also underpins the idea of patriarchy which presumes women to be naïve, susceptible and in need of protection.

If the idea had not been to selectively use women-related agenda for a larger state-centric objective, the State and its agencies would not have shied away from criminalizing marital rape and similar instances; especially when they are counting as rape, offences which do not qualify as such.

Skewed Focus on Issues that Establish the State as a Protector

Moving back to the triple talaq bill, the government is once again acting as a patriarch when it talks about conviction of a Muslim male who has pronounced triple talaq on his wife. Considering that triple talaq is no longer a form of divorce, a man pronouncing the same is essentially a case of desertion – a civil/matrimonial matter for other religion. Criminalizing triple talaq or other forms of desertion (as demanded by few), is a reductive way of looking at the issue at hand.

Instead of securing the rights of women, criminalisation has the possibility of rendering many women without any means of sustenance. Through criminal punishment, the State believes that it has essentially protected women from an inevitable doom, they could have otherwise suffered.

However, criminalisation not only takes away sustenance from various dependent women; it also tries to coercively enforce a mechanism of civil life the State deems correct. Yet again, the State fails to take into account certain other problems such as nikah halala which have been deemed to be dehumanizing by numerous women; and focuses on issues which it feels would help in furthering its identity as a protector with limited socio-political cost.

It needs to be realized that patriarchy has its tentacles deep down in the Indian society, including the legal order. It is pertinent to tackle rudimentary and archaic set of laws and regulation, both social and legal. Equality does not imply mere formal equality; rather it is essential to understand and appreciate the difference amongst women of different strata and different class. And this can only happen when the State pays attention to the lived experiences of more and more women and involves them in its decision-making in the true sense.

(The author is a research scholar (law) at IIT Kharagpur. This is a personal blog and the views expressed above are the author’s own. The Quintneither endorses nor is responsible for the same.)