Insights into Editorial: Beyond talaq: On Muslim divorce bill
Recently, President Ram Nath Kovind gave his assent to the Muslim Women (Protection of Rights on Marriage), Bill, 2019, which criminalises instant ‘triple talaq‘ among Muslims and attracts a jail term of three years for the husband. With the President’s approval, the bill has become an Act.
The Act makes all declarations of instant triple talaq void and illegal. It seeks to make the practice a punishable offence with imprisonment of up to three years
What is instant triple talaq?
Triple talaq is the practice under which a Muslim man can divorce his wife by simply uttering “talaq” three times. It is prevalent among India’s Muslim community majority of whom follow the Hanafi Islamic school of law.
Instant triple talaq or talaq-e-bidat is a practice that was challenged in the court.
This mode of divorce is not universal among Muslims across the world, as many other Islamic schools of thought prefer the divorce process to be deferred, in many cases over a period of three months.
The government has cited the example of many predominantly Muslim countries, including Pakistan, that have banned triple talaq.
Supreme Court on Instant Triple Talaq:
In 1978, a Muslim woman, Shah Bano, filed a petition in court demanding maintenance from her divorced husband which gave her divorced through talaq provision.
Shah Bano filed a claim for maintenance for herself and her children under Section 123 of the Code of Criminal Procedure, 1973.
The Supreme Court has also declared that this practice is unconstitutional and not protected by Article 25 which regards the freedom of religion.
Also, in December 2016, the Allahabad High Court had said that no personal law board was above the constitution.
Important provisions of the Bill:
It claims that despite the court ruling, several instances have been reported.
It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.
Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
Making it an offence, the government says, will deter further resort to triple talaq, and provide redress for women in the form of a subsistence allowance and custody of children, besides getting the erring husband arrested.
The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared).
Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute. The terms and conditions of the compounding of the offence will be determined by the Magistrate.
However, the core question regarding the necessity to criminalise the practice of talaq-e-biddat has not been convincingly answered.
However, the core question regarding the necessity to criminalise the practice of talaq-e-biddat has not been convincingly answered:
- The Opposition parties argued that the proposed law could be misused to harass Muslims and wanted it reviewed by a parliamentary panel.
- There is the practical question of how a man can provide a subsistence allowance while he is imprisoned.
- Opposition described the passage of the bill as a “big jolt” to family laws in India. A civil law has been changed into criminal law. This is a historic mistake.
- It has been argued by the Bill’s proponents that dowry harassment and cruelty towards wives are treated as criminal offences even while the marriage subsists.
- The law now gives a police officer the power to arrest the offender without requiring a warrant, alleged the Opposition.
- To check misuse, the government argued, the police takes cognisance only if the complaint is filed by the aggrieved woman or any of her relation by blood or marriage. The Bill also provides for bail by a magistrate but only after hearing the aggrieved woman.
- The Bill does not provide the victimised woman any additional benefits in terms of her rights in marriage and divorce.
- The aggrieved woman is entitled to demand a maintenance for her and her dependent children under the Act.
A milestone in the quest for gender justice; a moment of satisfaction for the entire country.
The prime minister said this is an occasion to salute the remarkable courage of those Muslim women who have suffered great wrongs due to the practice of triple talaq and added that its abolition will contribute to women empowerment and give them the dignity they deserve.
Despite the gains, gender equality does not permeate all aspects of civil law. This legislation presents an opportunity to put in place a civil code that steeped in equality across faiths and gender.
Having ensured a modicum of gender justice, the government should use this moment to build on the gains to address the gender inequities that persist in civil and personal laws across the board.
Building on the momentum for change, a demand that has come from within the community, the government should ask the Law Commission to review all personal/civil laws to ensure that these do not violate the Fundamental Rights guaranteed to all citizens by the Constitution.
In doing so, paving the way for an honest national dialogue that would take the nation towards a uniform civil code that is steeped in equality and democratic values.