This Article is written by Shambhavi Srivastava, a third-year law student of National University of Study and Research in Law pursuing B.A.LLB (Hons.) She analyses the discrepancies in the triple Talaq bill.

Introduction

Ever since The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was tabled in the Lok Sabha criminalising triple talaq, there had been a wave of uproar in the country especially among the Muslim Community. The justification of the Bill was that due to the presence of instant triple talaq or Talaq-e-bidat, Muslim women are oppressed, discriminated against and ‘left with nothing’.
Following the verdict by the Supreme Court in 2017 in Shah Bano case, the Loksabha tabled the triple talaq bill in December that sought to criminalise the act of pronouncing divorce thrice. The Muslim Women (Protection of Rights of Marriage) Bill, 2017, made instant triple talaq illegal and void and awarding a jail term of up to three years to the husband.

Calling it a historic step, Union Law Minister Ravi Shankar Prasad said the Bill “The Muslim women (Protection of Rights on Marriage) Bill 2017 — can act as a deterrent since there are one hundred cases of triple talaq even when the landmark judgment of the Supreme Court delivered in August last year.” He further added that “whereas twenty two Islamic countries, together with Pakistan and East Pakistan, had regulated instant triple talaq, there was no effective law in the Asian country.”

Triple talaq bill sought to criminalise the act of divorcing by pronouncing “talaq” thrice in an instance. The bill made it a non-bailable offence with imprisonment up to 3 years. The draft bill said, “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”. In addition to this, the bill provided for maintenance by the Muslim man to his wife and custody of minor children to the woman.

While introducing the Bill in the Lok Sabha, Law Minister Ravi Shankar Prasad boasted: “Ye siyasat nahi, insaniyat hai (This is not politics, this is humanity)”. The bill, however, is nothing more than sheer politics in the name of women empowerment and humanity.

A Political Gimmick

The Triple Talaq Bill apparently. which was actively advocated by the right-wing current government seeks to bring relief to the Muslim women.

To understand how this bill was not pro-women, one needs to look at the lives of women under the prevalence of Triple Talaq on the ground, and analyse what would have happened had the bill been passed in Rajya Sabha as well.

It is inevitable to note that the women all over the community are in a detrimental condition and the triple talaq was merely a salt to injury. Criminalising Triple Talaq further led to these women being exposed to the risk of increased polygamy, domestic violence, abandonment and in the worse of worst case, murder.

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This in no way implies that the existence of Triple Talaq would have been better but this bill in no way provides for a logical answer because the conditions of women are going to remain the same. It’s the Muslim men who would have been affected by the same.

The bill sought to criminalise an act that is already void in the eyes of law. It is pertinent to note that when an act has no legal consequence, it could not have been criminalised. If pronouncing triple talaq does not lead to anything, what logic lies behind criminalising it? There is no point in comparing the pronouncing of triple talaq with other criminal acts because in each such case there is a consequence. Whereas, after the Supreme Court judgment there is no consequence of pronouncing talaq three times at the same time. The judgement had not even hinted that a statute criminalising triple talaq be enacted. Moreover, a Muslim Marriage is of the nature of the civil contract and the liability imposed is of criminal nature, which again is inexplicable.

Demonising Muslim men either as jihadis (terrorists) or love jihadis, beef eaters or cow baiters or as being ‘anti-national’, has been an important political plank for the government in power. Incarcerating Muslim men for pronouncing triple talaq fits in perfectly with this master plan. To arrest the Muslim men,  that is the only thing that can be sensibly drawn from the bill highlighting the fact there had been grave gender disparity in the name of women empowerment.

BJP MP, Meenakshi Lekhi sent assurances to all Muslim women during the discussion in this regard; she said, “When they have a brother like Narendra Modi, they need not be afraid of anyone.” Indeed, they shouldn’t. The might government in power is with Muslim woman when she is seeking protection against her husband and not otherwise. What the government failed to realise was that a snake is more ferocious when hurt. Once released, the husband would certainly retort to other ways of divorce and even worse, he may not exercise any divorce at all but simply get violent towards his wife.

As a matter of sound public policy, criminal law must not intrude into the personal lives of citizens unless there is a pressing ground for it such as physical violence. Many grounds of cruelty within marriage are sufficient for divorce but certainly, do not qualify for criminal prosecution. The rationale behind this is that no civilised society approves of watchdogs in the family home. With triple talaq gone, it was merely a waste of time to decry people for being sympathetic to triple talaq or seek punishment for those who foolishly utter it despite its ineffectiveness. Shorn of the noise and harangue the problem isn’t really regarding the empowerment of women, because in this case, the govt ought to are looking at enhancing the benefit and protection granted by the Muslim women (Protection of Rights on Divorce) Act 1986 and different protecting legislation. Ironically the current legislation is titled the Muslim women (Protection of Rights on Marriage) Bill 2017.

In addition, Section 5 of the bill provided for the maintenance of the woman and the children. But if the divorce hasn’t concluded, the use of providing for the maintenance of the woman and the children was again, questionable. If this was maintenance that can be ordered by a magistrate for neglecting a wife, then that’s already provided for in Section 125 of the Code of Criminal Procedure, 1973. This was a reflection of the juvenile and superficial efforts of the drafters.

In addition to the above provisions, the bill further said that the custody of the children would be handed over to the wife. The courts, during the matter of custody, are bound by one principle alone- the best interest of the child. The custody, by default, goes to the wife, ignoring any circumstance whatsoever. The same is absurd to even think of because again, the divorce never took place in the first instance.

Conclusion

Triple talaq is a sin perpetrated just on an Indian woman. It is not practised anywhere in the world except, ironically, the world’s largest democracy in the name of personal law that has no justification — moral, legal or religious. Adding further to the grief, the provisions of the bill did more harm than good. The bill gave an unjustified reason to victimise the Muslim men by putting him behind the bars thereby strengthening the political image of the government in power, who clothed politics as humanity and protector of muslim women. What the government failed to realise that the bill would merely add salt to injury since it will do nothing but make a woman more prone to being “punished” by the husband. Also, any person who wanted to create a rift between the couple would be able to do so without much ado. It could have been misused by the wife as well since there needn’t be any conclusive proof regarding the same. There was no such need for the bill since triple talaq has been declared to be void in the eyes of law and even after this if a man proclaims it, there would be no divorce to that effect. If a man forces his wife out, she can lean on the various provisions as mentioned above under the Indian Penal Code and Code of Criminal Procedure.  

Fortunately, the bill was not passed in the Rajyasabha. Instead of government trying to polish the already existing law, it should focus on more pertinent problems for which no legislation has been passed and calls for one. If the government continues with such acts of negligence, acche din would continue to remain a distant dream.

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