Triple Talaq Bill aimed at ensuring social justice

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.

What is Triple Talaq?

1. There are three forms of talaq (divorce) in Islam: Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable but Biddat is irrevocable. 
2. Triple talaq is a practice mainly prevalent among India's Muslim community following the Hanafi Islamic school of law. 
3. Under the practice, a Muslim man can divorce his wife by simply uttering "talaq" three times but women cannot pronounce triple talaq and are required to move a court for getting divorce under the Sharia Act, 1937.
4. Triple talaq divorce is banned by many Islamic countries, including Pakistan, Bangladesh and Indonesia.

Background

1. 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.
2. 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.
3. 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.
4. 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.

Triple Talaq and the Indian Constitution

1. Article 25 of the Constitution guarantees religious freedom as Freedom of Practice and Propagation of Religion.
2. Like all other Fundamental Rights, it is subject to restrictions and does not protect religious practices that can negatively affect the welfare of citizens. 
3. Hence, Article 25 is overridden by Article 14, which guarantees the Right to Equality as triple talaq denies a Muslim woman’s equality before the law.
4. Article 25 is also subject to Article 15 (1) which states that the State “shall not discriminate against any citizen on grounds only of religion, race, caste, sex…” Since triple talaq does not work in the favour of women, it violates Article 15 (1) of the Constitution.
5. However, section 2 of the Muslim Personal Law (Shariat) Application Act of 1937 recognises triple talaq as a statutory right, bringing it under the ambit of Article 13 of the Constitution. Article 13 defines 'law' and says that all laws, framed before or after the Constitution, shall not be violative of the fundamental rights.

Earlier Supreme Court set aside instant ‘talaq’

1. 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.
2. 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.
3. 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.
4. 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. 
5. 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.

SC’s Verdict on Triple Talaq

1. The Bill was prepared following the Supreme Court’s verdict on 22 August 2017, which held the Islamic practice of ‘instant’ triple talaq’ as unconstitutional.
2. The verdict was delivered by a 5-judge bench led by the then Chief Justice J S Kehar. All the 5 judges belonged to 5 different religions.
3. The verdict came out in a ratio of 3:2, as two judges including the Chief Justice voted to uphold the practice saying that it cannot be declared illegal, while others called it unconstitutional and banned it for a period of 6 months till the government introduced a new law.
4. The court also held that the practice of instant triple talaq was violative of Article 14 and Article 21 of the Indian Constitution.
5. It also goes against Shariat and the basic tenets of the Quran
6. There is a difference between civil law and criminal law. Only acts that cause injury and harm to others, such as murder, theft and assault constitute criminal law. Marriage and divorce are not part of criminal law.
7.Non-criminal acts such as talaq must remain within civil law. Since22 August, talaq-e-biddat remains illegal. Violations of civil law must be punished, possibly with a fine. We have witnessed large-scale criminalising of Indian society under Section 498A. If the government’s bill becomes law, any aggrieved Muslim wife can accuse her husband of uttering triple talaq, landing him in jail for three years.

What does the new Bill say?

1. The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was passed by the Lok Sabha.
2. 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.”

Features of Bill

1. The Bill makes all declaration of talaq, including in written or electronic form (text message, email etc) to be void and illegal i.e. not enforceable law. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by Muslim husband resulting in instant and irrevocable divorce to his wife
2. Offence and penalty It makes declaration of  talaq a cognizable and non-bailable offence i.e. offence for which police officer may arrest an accused person without warrant. Moreover, if Muslim husband declaring triple talaq can be imprisoned for up to 3 years along with a fine.
3. Allowance It entitles Muslim woman against whom triple talaq has been declared to seek subsistence allowance from her husband for herself and for husband for herself and for her dependent children. First Class Magistrate will decide this allowance amount.
4. Custody of minor children Muslim woman, against whom triple talaq has been declared, is entitled to seek custody of her minor children. First Class Magistrate will make determination of custody of her minor children.
Provisions of the Muslim Women (Protection of Rights on Marriage) Bill, 2017
5. The bill was prepared by an inter-ministerial group headed by Union Home Minister Rajnath Singh.
6. It makes instant triple talaq or talaq-e-biddat illegal and void, be it in any form- spoken form, in writing or by electronic means such as email, SMS and WhatsApp or in any other manner whatsoever.
7. It defines ‘talaq’ as ‘talaq-e-biddat’ 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.
8. It makes declaration of talaq a cognizable and non-bailable offence. A husband declaring talaq can be imprisoned for up to three years along with a fine.
9. Any offence committed under the Code of Criminal Procedure, 1973 will be treated as cognizable and non-bailable.
10. It envisages entitling divorcee Muslim women for maintenance. It gives power to wife, upon whom talaq is pronounced, to approach a magistrate seeking subsistence allowance for herself and her minor children.
11. A married Muslim woman will be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, which will be determined by the Magistrate.
12. The Bill will help in ensuring gender justice and gender equality of married Muslim women and will help them in practising their fundamental rights of non-discrimination and empowerment.

Muslim countries where triple Talaq is banned

1. Pakistan  It was abolished after recommendations by a 7-member commission on marriage and family laws in 1956 and framed the legislation of marriage and divorce similar to Egypt, the husband must pronounce Talaq in three successive menstrual cycles.
2. Egypt It was the first country to reform its divorce system in 1929 according to the Quranic interpretation.
3. Tunisia As per Tunisian Code of Personal Status 1956, it enshrine that the institution of the marriage comes under the ambit of state and judiciary which cannot allow husband unilaterally to verbal divorce his wife without explanation of reason.
4. Bangladesh  The process of divorce is very simple in Bangladesh just in three steps to divorce for both Husband and Wife (When power of giving Divorce has been delegated in the Kabin) wanting separation: 1. Give Notice in writing; 2. Face the Arbitration Board (Appeared or not don’t matter); and 3. After expiry of 90 days take a registration certificate from a registered Nikah Registrar (Kaji).
5. Turkey The process of Talaq in Turkey can began only if the marriage was registered at the Vital Statistics Office. Then the entire process of Talaq will done in civil court.
6. Iraq It was the first Arab country to replace Sharia court from the government-run personal status court.
7. Indonesia  It is regulated under Law No. 1 of 1974 concerning Marriage (“Marriage Law”) which also further regulated under Government Regulation No. 9 of 1975 concerning The Implementation of Law No. 1 of 1974 concerning Marriage (“Marriage Regulation”).

What is the punitive measure mentioned in the Bill?

1. 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.
2. 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?

1. 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.
2. 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.