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The Controversial Triple Talaq Bill 2018

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What is triple talaq?

Triple Talaq, also known as talaq-e-biddat, is a form of Islamic divorce which has been practised by some in the Muslim community. It allows any Muslim man to legally divorce his wife by stating the word talaq (the Arabic word for “divorce”) three times in oral, written, or more recently, electronic form. It is prevalent among India’s Muslim community majority of whom follow the Hanafi Islamic school of law.

Why triple talaq is opposed?

This mode of divorce is not universal among Muslims across the world, as many other Islamic schools of thought does not accept it. Many predominantly Muslim countries, including Pakistan, that have banned triple talaq.

Many argues that triple talaq violates the following fundamental rights such as right to equality, right to freedom and right against exploitation. The practice of triple talaq violates the right to equality of a woman as it is totally the man’s prerogative to utter talaq and not the woman’s.

Why Supreme Court banned triple talaq?

The Supreme Court on August 22, 2017, held ‘instant triple talaq’ to be unconstitutional in the case of Shayara Bano vs. Union of India.

The five-judge bench headed by J.S.Khehar, in a 3:2 majority, declared the practice of instant divorce by pronouncing talaq thrice at one go as “void, illegal and unconstitutional.” They found instant talaq as a “manifestly arbitrary” practice and is against Article 14 and Article 21 of Indian Constitution.

Supreme Court also instructed the government to ban the practice by enacting a law.

However, this is not the first time the judiciary has questioned this practice. In December 2016, a single bench of the Kerala High Court in Oyoor Nazeer vs. Shameema said that the practice of triple talaq is not valid as per Quran and utterance of the same is punishable under the Indian Penal Code.

What happened to Muslim Women (Protection of Rights on Marriage) Bill, 2017?

The central government introduced The Muslim Women (Protection of Rights on Marriage) Bill, 2017 in the Parliament which was passed on 28 December 2017 by the Lok Sabha. But it was stalled by Rajya Sabha, where N.D.A. does not have majority. On September 19, 2018, the government made instant Triple Talaq punishable through an ordinance. The 2017 Bill is now listed for withdrawal.

What is The Muslim Women (Protection of Rights on Marriage) Bill, 2018?

After the 2017 Bill failed to pass Rajya Sabha, Government introduced The Muslim Women (Protection of Rights on Marriage) Bill, 2018 in Lok Sabha on December 17, 2018. After the Bill got passed in Lok Sabha on December 27, Union Law Minister Ravi Shankar Prasad introduced the Bill on December 31 in the Rajya Sabha.

What are the Provisions of the Muslim Women (Protection of Rights on Marriage) Bill, 2018?

  • It makes the pronouncement of talaq-e-biddat or triple talaq “void and illegal.”
  • The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person without warrant.)
  • The police can lodge an FIR (first information report) only if the complaint is filed by the wife (victim), her blood relations or her relatives by virtue of her marriage. Non-relatives or neighbours cannot lodge a complaint under the proposed law.
  • The Bill provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
  • The offence is compoundable, that is, the parties can settle the matter between themselves. The terms and conditions of the compounding of the offence will be determined by the Magistrate.
  • A Muslim woman, against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the allowance will be determined by the Magistrate.
  • A Muslim woman, against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.

What is happening in Rajya Sabha?

The opposition parties want to refer The Muslim Women (Protection of Rights on Marriage) Bill 2018 to a Select Committee of Rajya Sabha. The government is unwilling to do so. This created a deadlock in Rajya Sabha over this bill.

Why some sections are opposing the new Bill?

Different parties oppose the proposed bill on different grounds.

  • Some says that the not required by Supreme Court to frame triple talaq law as this practice has become null and void from the date of pronouncement of the verdict. It was only the court’s minority judgment that directed the government to bring an “appropriate legislation” on triple talaq. They argue that the majority judgment did not require the government to bring the Muslim Women (Protection of Rights on Marriage) Bill, 2018, making an already extinct triple talaq a crime.
  • Some argues that the Triple Talaq is a marital wrong, and essentially a civil matter. It should not lead to prosecutions and jail terms. The triple talaq may be considered nothing more than the civil contempt of Supreme Court.
  • Since triple talaq no longer dissolves marriage, its pronouncement is inconsequential and in no way adversely affects either the wife or the society and therefore it cannot and should not become a crime. By making triple talaq a penal offence, the Union government is making a grave mistake and moving against natural justice. Also since law makes the husband liable to pay maintenance, how will he do this if he is sent to jail?
  • Many points out those cases of triple talaq are rare and the practice is already on its way out.
  • Some says that there is no need for a fresh criminal provision when existing laws, under Section 498A of the Indian Penal Code or provisions of the Protection of Women from Domestic Violence Act, 2005, already allow the prosecution of a husband for inflicting physical or mental cruelty, emotional and economic abuse, and for deprivation of financial resources.

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