“We have always stated that triple talaq is neither an issue of religion nor of prayer nor of any other communal consideration. It is an issue of women empowerment.” – Ravi Shankar Prasad
The now historic words were spoken by the Union Minister of Law and Justice in the Parliament while debating the Controversial “Muslim Women (Protection of Rights on Marriage) Bill” which was passed by the Rajya Sabha on 31st July, after being cleared by the Lok Sabha on 25th July and finally made into law after the Presidential Assent on 1st August.
The issue of the Islamic practice of Triple talaq is not a recent one. In fact, it is one of the select few socio/religious issues which has actively captured the imagination of the Politics of our country for a period of at least four decades, the others being the Artcile 370, Uniform Civil Code and the construction of a Grand Ram Mandir.
Starting from the decision of the apex court in Shah Bano [AIR 1985 SC 945] in 1985,followed by the Muslim Women (Protection of Rights on Divorce) Act, 1986 passed by the Rajiv Gandhi government in 1986, to the judgement of the Supreme Court in Shayara Bano [(2017) 9 SCC 1] in 2017 and finally to the passing of the Muslim Women (Protection of Rights on Marriage) Bill, 2019 in 2019. The practice has had a very eventful but mostly controversial past; but historical study of the talak-e-biddat is not what this piece aims to do, the sole purpose of this article is to find out the legal shortcomings and contradictions of the 2019 Act.
The Muslim Marriage is a civil contract between two adult persons but the procedure that is followed in its breakdown by the instant triple talaq has been made criminal, The Muslim Women (Protection of Rights on Marriage) Act, 2019 (hereinafter referred to as the Act) makes the instant triple talaq an illegal offence punishable with imprisonment for a term which may extend to three years along with fine.
The rationale provided by the government while explaining the need to make the offence punishable with imprisonment is to deter the Muslim husband from committing the offence which is in the interest of the wife. Although, it might seem a sound logic but that is a very myopic view of the circumstances considering the realities. The Supreme Court vide its judgement in Shayara Bano declared the instant triple talaq as unconstitutional and hence the wife of the Muslim man would legally have all the rights and interests over her husband and his property according to the Muslim Personal law even after her husband has propounded triple talaq on her; but the government while making incarceration compulsory declares the husband a criminal for uttering words which hold no legal value. Further by imprisoning the husband the state will be separating the legally married couple thus violating the rights of conjugality between the two persons. Hence the position of the Muslim wife is no better than before as, if she does not complain against her husband then he would desert her and if she does complain then the state would forcefully separate them and put the husband behind the bars for a considerable period of time making the wife alone again but this time with a social stigma of sending her husband to jail, and it is very difficult to assume that when he comes back he would just forget everything and live happily with his wife.
Further in Islam polygamy is permitted and it is still practiced in India and if a Muslim male who has more than one wife, divorces one of his wives through triple talaq and she complaints against him and he is put behind bars then the other wife is separated from her husband without any fault of hers, further she is not entitled to any allowance for herself or her dependent child(ren) according to the Act and is supposed to fend for her and her child(ren).
It is reasoned that along with the women belonging to the historically oppressed classes, the Muslim women are the most deprived group presently in India, considering this fact, another contentious point is what happens to the wife after her husband has pronounced triple talaq on her and is behind bars upon her or any person related to her by blood or marriage’s complaint. The Act, under Section 5 provides that a married Muslim women on whom the husband has pronounced triple talaq merits subsistence allowance from her husband. The provision although well intentioned lacks a seemingly glare logic, the Government expects a person who is behind the bars for a period of three years to somehow muster up the funds to pay to his wife and dependent child(ren) allowance each month so that they can subsist. Even if it is assumed that the onus is on the Muslim husband to arrange the funds for he was the culprit in the first place but what if the person is just unable to do so and the Muslim wife is left alone to fend for herself and her dependent child(ren)as the Act does not provide for any other socio/economic assistance to the women from the government. Further, she cannot remarry as her marriage is legally intact.
Another issue with the Act is that it makes the offence of triple talaq non-bailable, although the Magistrate has been empowered under the Act to give bail to the Culprit upon an application for the same filed by him and pursuant to listening to his wife, the magistrate is satisfied that there are reasonable grounds for granting bail to such person. But this provision will undeniably be subjected to misused by married muslim women with sketchy intentions as the act includes all forms of instant triple talaq, including verbally, in writing or electronic form, through a medium like text message.Since providing the evidence for talaq-e-biddat in written or electronic form appear to be a straightforward task but proving the genuineness of a verbal triple talaq claim by the Muslim wife which opposed by the Muslim husband might turn out to be a herculean task as the Act is silent on this part and it might turn out be that an innocent man is treated as a criminal and put behind bars for three years and is compelled to give allowance to his wife and children only upon the word of his wife.
Finally, since the 2017 judgement of the apex court the act of instant triple talaq is null and void hence it does not have any effect on the legality of the Muslim Nikah and any man who substantially pronounces it on his wife and leaves her does nothing but desserts her wife. It is to be noted that other personal laws do not treat desertion as a criminal offence therefore the Act, in essence imprisons the Muslim man for deserting her wife; criminalising desertion by Muslim men, which constitutes only a civil offence for men of all other religions, seems to be a clear discrimination under the Constitution.
Thus, the claim of the Union Minister of Law and Justice that the issue of triple talaq and its criminalisation by the Act of the Parliament will act as a mode of women empowerment seems misplaced, as creating an evil to kill an evil cannot be in the interest of the society at large. The Act although wiping out the travesty that is the instant triple talaq has left many reasonable socio-economic-religious questions unanswered, the only Ram-ban, so to speak, appears to be the withdrawal of personal laws based on religion and ushering in a Uniform Civil Code as we are Indians, firstly and lastly.
You may contact me for consultation or advice by visiting Contact Us