Govt Takes Ordinance Route to Make Triple Talaq a Crime

The Union Cabinet on Wednesday approved an ordinance making triple talaq a punishable offence after the government failed to pass the bill through both houses of the Parliament.

The ordinance would have similar provisions as The Muslim Women Protection of Rights in Marriage Act, popularly known as triple talaq bill, which was cleared by the Lok Sabha in December last year

Though the ordinance has been cleared for now, it must be placed before the Parliament and the bill would still need to be passed because in a January 2017 verdict, the Supreme Court had held that "re-promulgation of ordinances is a fraud on the constitution" and hence not allowed. It cannot become a "parallel source of legislation."

Giving details about the provisions of the ordinance, law minister Ravi Shankar Prasad said the core component is that an offence will be cognizable only when the FIR is filed by the victim wife or her close relations by blood or marriage. 

Secondly, it's compoundable, it can be compromised only at the insistence of the wife upon appropriate terms and conditions as determined by the magistrate. Thirdly, a bail can be granted by the magistrate upon reasonable grounds but only after hearing the victim wife also,” he said. 

He added that the victim wife must get the custody of minor children and would be entitled to a maintenance suitably determined by the magistrate for herself and the children.

The minister also took a swipe at the Congress for blocking the bill from becoming law. Alluding to Sonia Gandhi, he said, "It's my serious charge with full sense of responsibility that a distinguished woman leader is ultimate leader of the Congress, yet barbaric inhuman triple talaq was not allowed to be ended by a Parliamentary law for pure vote bank politics."

The bill had faced a stiff resistance in the Rajya Sabha where several Opposition lawmakers argued that it was drafted "shoddily" and must be sent to a Select Committee for close scrutiny.

The bill makes instant "triple talaq" a criminal offence and proposes a three-year jail term for a Muslim man who divorces his wife by uttering the word "talaq" thrice. It has provisions for imprisonment and fine for anyone invoking it. It also deals with subsistence allowance to a Muslim woman and her children from the estranged man as well as custodial rights of minor children. 

It covers instant triple talaq delivered in any form — whether delivered orally, including telephone or a mobile call, or in writing or through electronic medium like Watsapp or SMS — illegal. 

The bill, however, had become a political flash point as the Congress and certain other opposition parties opposed to certain provisions of the bill, including the three-year jail term. 

Rejecting criticism that it was stonewalling the legislation, the party said putting the bread-winner of a family in jail would not just be injustice to his family, but also to the woman and her children as they would be left to fend for themselves without financial support during that period.

The Congress had told law minister Ravi Shankar Prasad would be ready to support the bill, even with the criminal clause, if the government takes upon itself the responsibility of financially supporting all Muslim women whose husbands are in jail for pronouncing instant triple talaq.

But the government had rejected the proposal. To bolster its case, the Centre had even sought the opinion of all state governments on the subject, and, most of them had supported the bill in its present form.

The ordinance comes just weeks after Prime Minister Narendra Modi promised Muslim women “that the entire nation is there with them and we will ensure that they get justice.”

The Supreme Court had in a verdict in August last year declared instant triple talaq illegal and unconstitutional. Muslim women had petitioned the court, arguing that practice of husbands divorcing them through "Triple Talaq", including by Skype and WhatsApp, not only violated their rights but also left many women destitute.

But even after the Supreme Court declared it illegal, some Muslim men continued with the practice of instant talaq. While there were 177 reported cases of triple talaq before the Supreme Court verdict in August last, 70 such cases instances were reported after the order.

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Triple Talaq -What is Tripple Talaq

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Triple Talaq Essay UPSC/Triple Talaq Essay For UPSC

Triple Talaq is the process of divorce under Sharia Law (Islamic law) where a husband can divorce his wife by pronouncing ‘Talaq’ three times. This is also called oral talaq. There are three types of divorce under Islamic law, namely, Ahsan, Hasan and Talaq-e-Biddat (triple talaq). While the former two are revocable, the last one is irrevocable. It is mainly prevalent among India’s Muslim communities that follow the Hanafi School of Islamic Law.

Under this law, wives cannot divorce husbands by the means of triple talaq. Women have to move a court for divorcing her husband under the Muslim Personal Law (Shariat) Application Act 1937. (This Act was passed to make provisions for the application of Shariat or Islamic personal law to Muslims in India.)

Arguments against triple talaq

• It goes against the rights of equality and women’s empowerment. It propagates the dominance of men over women.
• According to a study, 92% of Muslim women in India wanted the triple talaq to be banned.
• It gave men the right to arbitrarily divorce their wives without any valid reason.
• New-age technology has given birth to new modes of triple talaq such as through skype, text messages and email.
• Many Islamic countries have outlawed this practice including Bangladesh, Pakistan and Indonesia. There is no reason for a democratic and secular India to continue this lopsided practice.
• It goes against the constitutional principles of gender equality, secularism, right to life of dignity, etc. It goes against Article 14 (Right to Equality) and Article 15(1) which states that there shall be no discrimination against any citizen on the basis of gender, race, etc. and this kind of talaq is biased against the interests of women.
• The constitution of the country says that it shall strive to bring a uniform civil code for the entire country. Doing away with triple talaq will definitely be a step closer to the constitution-makers’ dream of having a uniform civil code for all citizens.
• However, the National Commission of Women says that this matter cannot be linked to uniform civil code. Nevertheless, it should be banned in order to protect the interests of Muslim women.
• The Supreme Court has also declared that this practice is unconstitutional and not protected by Article 25 which regards the freedom of religion. Also in December 2016, the Allahabad High Court had said that no personal law board was above the constitution.
• Experts also opine that only the essential or integral features and aspects of a religion are protected by the Constitution. Triple talaq was not an integral feature of Islam.

Challenges in banning triple talaq

• Religious groups infer the banning of a traditional practice sanctified by Sharia as interfering in the religious aspects of minorities.
• The courts should decide two things basically:
  • Whether personal law can be subject to the constitution or not
  • How to view the relationship between triple talaq and Muslim personal law

Past rulings:

• In the Shah Bano case in 1985, the SC granted Shah Bano, a 62-year old woman the right to alimony from her husband.
• But in 1986, the government passed the Muslim Women (Protection of Rights on Divorce) Act which diluted the positive impact created by the Shah Bano case.
• In 2001, in the Danial Latifi & Anr versus Union of India case, the SC upheld the validity of the Shah Bano judgement.
• In August 2017, a five-judge bench of the SC declared the triple talaq as unconstitutional in a majority 3:2 judgement. This was the culmination of a petition filed by Shayara Bano, whose husband of 15 years had divorced her through a letter where he pronounced talaq three times, to declare the divorce as void.

The latest ruling is truly a watershed moment in women empowerment movement in India. The court has given progressive thoughts enshrined in the Constitution precedence over personal law in society.