Declaring Instant Triple Talaq as void and illegal is enough, no need of criminalization clause

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Bilkulonline.com

By Yusuf Naqi

(Advocate -Delhi High Court)

New Delhi, Jan 8: Instant triple talaq was abused and asking for its ban was just right. Muslim women approached the Supreme Court and prayed for banning of instant triple talaq. The evil practice of talaq-e-biddat was prevalent in India since long and had to be abolished at the earliest. The Supreme Court of India, therefore, felt it imperative to examine the constitutionality of such a practice and by way of its judgment dated 28.08.2017, in the case of Shayara Bano vs Union of India and others. had declared the practice of talaq-e-biddat to be contrary to the principles of constitutional morality, equality, gender justice and hence, unconstitutional. It also asked the government to frame legislation for addressing the misuse of triple talaq.

The government has come up with a Bill i.e. The triple talaq Bill (The Muslim Women (Protection of Rights on Marriage) Bill, 2017), which is claimed as a historical reform for benefit of Muslim women, was hurriedly passed by the Lok Sabha. The present regime has shown its intellectual mediocrity and legislative inefficiency through this poorly-drafted piece of legislation. The highlights of the Bill are:

  • Instant irrevocable talaq will be void and illegal. In simpler words, when a man gives three divorces in one sitting, it will be void and illegal, and the marriage will subsist.
  • If the husband pronounces instant irrevocable talaq, he will be punished and fined. Punishment would be upto 3 years.
  • As triple talaq is illegal and void, the marriage continues to exist and wife is entitled for maintenance for herself and her children just as in any marriage.
  • The offence (instant triple talaq) is cognizable and non-bailable. In simpler words, the wife may or may not make the complaint but the police will have the right to arrest and investigate.

The Law Minister stated in the Lok Sabha that there have been 66 cases of triple talaq after the Shayra Bano judgment of the Supreme Court in July this year. With the Muslim population in India being roughly 172 million, 66 is hardly a number that can cause any legislative exigency. In a data published before the judgment, the percentage of women aggrieved by triple talaq was merely 0.2%. The Bill was not only hurriedly drafted, but also tabled without due consultation and this puts a big question mark on the intention behind the Bill. Further the Union Law Minister referred to various Muslim countries and stated that these countries have abolished triple talaq. The Law Minister was perhaps not properly briefed as he did not inform the Parliament that these countries have given the power of dissolution of marriage to Sharia courts. The question that arises is whether in the light of the same, will the government now strengthen Sharia Courts?.

The major question arises is on the need of such legislation. The protection of section 498A of Indian Penal Code, 125 of Criminal Procedure Code, Domestic Violence Act and Dowry Prohibition Act was always available to Muslim women. So what was the requirement of having an additional law to “protect” Muslim women?. Upon marriage, the couple under Muslim law enters into a contract and this contract is dissolved upon talaq. Whether talaaq, triple talaaq or no talaaq, a Muslim woman like woman of any other faith in India has all her rights protected in abovesaid general laws. Talaq or triple talaq does not hinder any of her rights that she has as a wife or as a divorced woman. The muslim woman has right to maintenance, shelter, custody and protection in 125 CRPC and PWDVA. The present Bill does not provide her any additional benefits in terms of her rights in marriage and divorce. Only addition is that it makes the act of divorce punishable which to my mind is extremely unfair to both men and women.

Unlike Section 498A IPC (provision relating to cruelty against a married women), which prescribes that the complaint to the police can be given only by the person aggrieved by the offence or by any person related to her by blood, marriage or adoption or by any public servant belonging to such class or category as may be notified by the state government in this behalf, in the present bill there is no such prescription. Filing of complaints by third parties even without the knowledge of the wife, thereby causing serious prejudice to domestic harmony and peace, thus, militating against the very purpose and object of the legislation.

A Bill of this seriousness should have been researched, debated and discussed across various platforms and at various levels before presenting and passing it in the Parliament.