The criminalization of Instant Triple Talaq is complete

The criminalization of Instant Triple Talaq is complete

After three failed attempts in the last two years, the government of India has finally passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019 in the Rajya Sabha, which clears the final hurdle for criminalizing the practice of instant Triple Talaq. The Supreme Court had declared the practice unconstitutional in 2017. A husband declaring instant triple talaq can be imprisoned for up to three years, a punishment critics say is disproportionate for a civil offence

What is the big victory for the government of India?

The Parliament of India on July 30 approved the bill that makes instant triple talaq a criminal offence, after the contentious legislation was passed by Rajya Sabha following non-aligned BJD extending support and NDA constituents JD(U) and AIADMK walking out. The Triple Talaq bill had been passed thrice by the Lok Sabha over the last 19 months.

The Upper House passed the bill by 99 votes in favour and 84 against it. Lok Sabha had passed the Muslim Women (Protection of Rights on Marriage) Bill last week and with Rajya Sabha now approving it, the practice of instant divorce by Muslim men will be punishable by jail term of up to three years.

This is a massive victory for the NDA government, whose bills usually get stuck in the upper house, where it lacks a clear majority. The Rajya Sabha had earlier rejected an opposition sponsored motion to send the bill to a Select Committee with 100 votes against it as compared to 84 in favour. While BJD supported the legislation, JD-U and AIADMK walked out, lowering the majority mark which normally stands at 121. The ruling NDA has 107 members in the 242-member Rajya Sabha.

The NDA was also helped by the absence of some members of SP and BSP as well as those of Telangana Rashtra Samithi (TRS) and YSR-Congress. The same strategy had helped the government push through the contentious amendment to the Right To Information (RTI) Act last week despite lacking numbers in the Upper House.

Prime Minister Narendra Modi hailed the passage of the Muslim Women (Protection of Rights on Marriage) Bill, 2019 by Parliament and said it was a victory of gender justice and would further equality in the society. Minutes after the Rajya Sabha passed the triple talaq bill, PM Modi tweeted, “ An archaic and medieval practice has finally been confined to the dustbin of history! Parliament abolishes Triple Talaq and corrects a historical wrong done to Muslim women. This is a victory of gender justice and will further equality in society. India rejoices today.”

Once granted assent by the President, the bill will replace an ordinance promulgated last on February 21 to the same effect as the bill.

Why is this Bill controversial?

The Muslim Women (Protection of Rights on Marriage) Bill had been back and forth in the Lok Sabha and the Rajya Sabha – with the government passing it in the Lower House and the Congress-led Opposition, which is still in majority in the Upper House, rejecting it.

While the ruling NDA government believes the abolition of talaq-e-biddat or instantaneous talaq, as a practice which discriminates against women, will be facilitated by criminalizing it, the Opposition is of the opinion that it impinges on the religious freedom of the Muslim community bestowed in Article 25 and 26 of the Indian Constitution.

Further, while the government asserts that the bill stands for women empowerment, the Opposition rebuts the claim saying the imprisonment of the husband will be detrimental for the wife and the family as he would not be able to provide for the maintenance (as promised in the nikaahnama) when he is in jail.

The government says this law became necessary as even after the landmark Supreme Court verdict on August 22, 2017 that banned instant triple talaq, the social malaise continued unabated. The top court in its verdict had put a six month ban on the practice and had asked the government to frame a law on it. Unable to pass the law, the government had since then issued ordinances to ensure continuity of the ban.

Muslim League's ET Mohammed Bashir, debating the bill in 2017, said the proposed law was violative of personal laws and was a politically motivated move. He said that given the population of Muslims in the country, triple talaq cases were negligible. "You are unnecessarily taking a gun to kill the mosquito," he said.

The Supreme Court verdict

In a landmark decision, a five-judge inter-faith constitution bench of the Supreme Court by 3:2 majority struck down triple talaq, or instant divorce, practice as unconstitutional. The practice of instant Triple Talaq (talaq-e-bidat) was deemed to be unconstitutional and violative of Articles 14 and 15.

Three judges said it is unconstitutional; the other two dissented but wanted it banned for six months till the government introduces new law. After deciding that the practice is not integral to Islam, the apex court struck down that part of the 1937 Sharia Law that gave legal sanctity to Triple Talaq.

When does the Bill seem logically flawed?

The fundamental flaw in the criminalization of the mere utterance of triple talaq is the fact that if pronouncement by the man does not eventually dissolve the marriage, why then criminalise an offence that did not even take place?

The SC judgment effectively meant that even after the pronouncements of talaq three times at one go, the marriage in still intact and the man and the woman remain husband and wife. The new law, if implemented, will take away the husband of the Muslim woman and end all possibilities of any reconciliation, making her socially and financially insecure.

Looking at it from the other end of the gender debate, criminalizing Muslim men for a civil wrong is an outright abuse of human rights. Another glaring internal contradiction is found in Sections 5 and 6 which discuss post-divorce issues such as a “subsistence allowance” for the woman upon whom instant talaq “is pronounced” and the “custody of her minor children” as if her marriage is dissolved by the mere pronouncement of talaq-e-biddat. How could the authors of this Bill talk of post-divorce matters ignoring the fact that the pronouncement (instant talaq) has already been voided in Section 3 and cannot result in a divorce?

Then there is the case of a civil offence being treated as a criminal one

The NDA government’s continued insistence on promulgating the Act has come under serious questioning by activists and civil society. “The Bill is prejudiced and biased. Triple talaq may not be the right way for a man to divorce his wife, but it makes absolutely no sense to make it a criminal offence. If the husband is imprisoned, who will pay for the wife’s maintenance? Also, it leaves no room for any reconciliation process to try save the marriage,” says Deepika Narayan Bhardwaj, a noted social activist whose documentary, Martyrs of Marriage, highlighted how misuse of Indian Penal Code sections like 498A (Dowry Harassment) led to acute harassment of the affected men, sometimes even driving them to suicide.

“Besides, its very objective - to protect the rights of married Muslim women and prohibit divorce by pronouncing 'talaq' by their husband - has already been achieved by the Supreme Court judgment in August, 2017, which held that the practice of 'talaq-e-biddat' is unconstitutional. Thus, an act that has no legal consequences being made a cognisable [arrest without a warrant] and non-bailable criminal offence is arbitrary,” she adds.

Where does the defence of the Bill come from?

The Centre's bill to make instant triple talaq a criminal offence has attracted criticism that marriage is a civil contract and breaches therein should not invite penal consequences.

However, the fact remains that instantaneous triple talaq was held to be violative of Article 14, the right to equality, with the SC saying it was "manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it".

Cruelty in a matrimonial home could be without physical assault, as the SC ruled in several cases making verbal abuse and mental torture part of cruelty. To eradicate social evils, Parliament has taken steps from time to time and prescribed penal consequences. The bid to punish those who may wish to take recourse to instantaneous triple talaq even after the SC order has parallels too.

To eradicate the evil of dowry, Parliament enacted the Dowry Prohibition Act in 1961, and later went on to add Section 498A in the Indian Penal Code, which jails a husband and his relatives on a mere complaint from a woman about cruelty.

Untouchability was abolished by the Constitution when it came into force in 1950. Yet, the practice continued, forcing Parliament to enact the Untouchability (Offences) Act in 1955, renamed as Protection of Civil Rights Act in 1976. It punished those practicing untouchability, directly or indirectly, with imprisonment of six months.

The practice would have continued as if the Supreme Court does not exist in the absence of penal consequences.

Who said what about the bill?

Replying to a four-and-half-hour debate on the Bill, Law Minister Ravi Shankar Prasad cited jail provisions in the legislations that ban dowry and multiple marriages by Hindu men to justify the three-year jail term for Muslim men practices triple talaq.

To Leader of the Opposition Ghulam Nabi Azad, who termed the bill as a politically motivated move to destroy Muslim households with domestic fights, the minister said the Congress leader should think of why his party could never win majority following the peak of 400-plus seats it won in 1984. He saw the 1986 Shah Bano case, where the Congress did not stick its neck out to support women rights, as the main reason for the downfall of the party.

"I am a minister of Narendra Modi government and not Rajiv Gandhi government," he said citing the Shah Bano case. The Congress government, headed by then Prime Minister Rajiv Gandhi, overturned Supreme Court’s landmark judgment in 1986 by passing the Muslim Women (Protection on Divorce Act). The Act said maintenance is only liable for the iddat period and that the courts only had the power to direct the Waqf Board for providing alimony to an aggrieving wife who is not able to fend for herself. Shah Bano later withdrew the maintenance claim she had filed.

Prasad said the bill should not be seen through a political prism as it is a matter of humanity, woman empowerment and gender equality. "More than 20 Islamic nations have regulated triple talaq," he said. Azad said the opposition has been forced to vote against the bill after the government did not accept their demand to send it to a select committee and make triple talaq a civil offence.

Many in the civil society failed to be convinced that ‘illegal divorce’ is a criminal offence punishable with a harsh jail sentence

“The pronouncement of triple talaq having no legal consequences on the marriage means that such a proclamation by a Muslim man is essentially a desertion of the wife. In any of the personal laws, the desertion of wife by a man is not a criminal offence. Therefore, while the Bill aims to criminalise the pronouncement of talaq, in effect, it is only criminalising the act of desertion of a Muslim wife by her husband,” Kavita Krishnan, Secretary, All India Progressive Women's Association(AIPWA), told. “Criminalising desertion by Muslim men, which constitutes only a civil offence for men of all other religions, is discriminatory under the Constitution,” she added.

Speaking to National Herald, senior advocate in Supreme Court Sanjay Hegde opined that since the Supreme Court had already dealt with the issue in question, the Bill simply aimed to give an additional weapon to Muslim women, as well their lawyers, who may not necessarily be Muslims. “Tomorrow, the government may bring a Bill saying it is a criminal offence to utter the words ‘vegetable biryani’ thrice,” he added in a lighter vein.

How valid is the criticism of this law?

The aspects of the Bill being questioned are:

Branding the husband a criminal may lead to unwanted separation between the couple, against the wishes of the wife in many cases

Since Muslim marriage is a civil contract between two adults, the procedures to be followed on its breakdown should also be of civil nature

The Bill allows for the aggrieved woman as well as anyone related to her by blood or marriage to be the complainant. There is no provision for a relative to seek the consent of an aggrieved woman before filing a complaint. The problem becomes particularly acute in the case of inter-religious marriages of Muslim men with a woman of another religion.

The term of imprisonment up to three years is arbitrary and excessive. Even serious crimes like causing death by rash or negligent act (IPC Sec 304A), rioting (IPC Sec 147), injuring or defiling place of worship with intent to insult the religion of any class (IPC Sec 295) are punishable by two years in jail or fine or both. Thus, it is violative of Article 14 of the Constitution.

A true reformatory law should have relooked family laws in Islam and allowed both men and women a court-driven solution when it comes to divorce.

Muslim women are allowed, as per the Dissolution of Muslim Marriage Act, to seek divorce by approaching the court. A Muslim man, on the other hand, must turn to the clergy. Also, the talaq in Islam is unilateral — only the man can pronounce it. Even the so-called benign forms of talaq are not available to women.

So, a Muslim man just has to wait for a period of three months, in keeping with the Sharia, instead of taking the triple talaq route, and he would have achieved the same ends — that is, had his marriage dissolved with the wife having no say in the matter.

It may be noted here that the Muslim Family Laws Ordinance does prescribe, in Section 7(2), a simple imprisonment of one year. But this is not for the mere “pronouncement” of talaq, as envisaged in the Centre’s draft law. The husband will incur this punishment only when he pronounces talaq with an intention to divorce but fails to inform the chairman and the wife (in writing) about his pronouncement.

There was a better way to frame the law. But then, there is always a better way to do anything. It is important to keep in mind that the government has a role to nudge communities on the path of reform, by forming enabling laws — many a reform in the Hindu society would have been half-baked had they not received support from policy.