Insights into Editorial: Unseemly haste

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Insights into Editorial: Unseemly haste


 

Context:

On December 28, the Lok Sabha passed the ‘triple talaq’ Bill — the Muslim Women (Protection of Rights on Marriage) Bill — following a day of engaging discussion. It will soon be tabled in the Rajya Sabha. The legislation was mooted in the aftermath of the Supreme Court’s judgment in August declaring that the practice of instant triple talaq was not constitutionally protected and would have no legal effect.

However, in Rajya Sabha Opposition demanded to send the controversial triple talaq legislation criminalising instant triple talaq, or talaq-e-biddat, to a select committee.

Background:

The egregious practice that many Muslim men employ to divorce their wives instantaneously and without their consent, merely by uttering the word talaq thrice, was rendered legally invalid by the Shamim Ara vs State of UP judgment of 2002 and subsequent orders from various High Courts. But this has not stopped the practice; many Muslim women are unaware of the judgments or have had to accept such pronouncements owing to pressure from conservative sections.

Many women have undergone severe trauma after being thrown out of their homes. Shayara Bano, one such victim of this arbitrary custom — not to speak of years of domestic violence — has filed public interest litigation in the Supreme Court seeking a ban on the practice. The conservative All India Muslim Personal Law Board that seeks to wield influence on questions of Muslim personal law has found it an occasion to air its regressive views on the issue.

Earlier Supreme Court set aside instant ‘talaq’

In a majority 3:2 judgment, a five-judge Bench of the Supreme Court set aside ‘talaq-e-biddat’ — instant and irrevocable ‘talaq’ — as a “manifestly arbitrary” practice.

By declaring the discriminatory practice of instant triple talaq as unconstitutional, the Supreme Court has sent out a clear message that personal law can no longer be privileged over fundamental rights. Three of the five judges on the Constitution Bench have not accepted the argument that instant talaq, or talaq-e-biddat, is essential to Islam and, therefore, deserves constitutional protection under Article 25. Two judges in the minority favoured imposing a six-month injunction to enable Parliament to enact legislation on the subject; the judges in the majority specifically chose not to do so. 

The purpose of the court’s judgment was disarmingly simple: to deprive talaq-e-biddat of recognition in the eyes of the law. That remains the case irrespective of the frequency with which it is exercised.

What does the new Bill say?

The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was passed by the Lok Sabha.

It makes the pronouncement of talaq-e-biddat “void and illegal.” According to clause 3 of the Bill, “Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.”

What is the punitive measure mentioned in the bill?

A man who pronounces talaq on his wife will be punished with a jail term and a fine. This Bill also makes the mentioned of talaq-e-biddat a non-bailable offence and shall be punished with imprisonment for a term which may extend to three years and fine.

This Bill puts men at the centre of legislative policy, by triggering a number of legal consequences upon the utterance of those words.

How does this protect Muslim women’s rights?

The woman upon whom talaq is pronounced will have to receive an allowance from her husband, and she retains custody of her children and shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband.

Law Minister says that this legislation will, help in ensuring the larger Constitutional goals of gender justice and gender equality of married Muslim women and help sub serve their fundamental rights of non-discrimination and empowerment.