“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 31 July, cleared by the Lok Sabha on 25 July, and finally made into law after the Presidential Assent on 1 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 that has actively captured the imagination of our country’s politics for at least four decades, the others being Article 370, the 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 the historical study of the talk-e-bidder differs from 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.
Muslim Marriage is a civil contract between two adult persons, but the procedure for breaking it by instant triple talaq has been made criminal. The Muslim Women (Protection of Rights on Marriage) Act, 2019 (from now on referred to as the Act) makes instant triple talaq an illegal offence punishable with imprisonment for a term that may extend to three years along with a 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 sound logic, 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 unconstitutional. 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. Still, 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. He will desert her if she does not complain against her husband. If she does complain, then the state would forcefully separate them and put the husband behind bars for a considerable period, leaving the wife alone again. Still, this time, with the social stigma of sending her husband to jail, it isn’t easy to assume that when he comes back, he will just forget everything and live happily with his wife.
Further, in Islam, polygamy is permitted. It is still practised in India, and if a Muslim male who has more than one wife divorces one of his wives through triple talaq and she complains against him and he is put behind bars, then the other wife is separated from her husband without any fault of hers. Further, according to the Act, she is not entitled to any allowance for herself or her dependent child(ren) and is supposed to fend for herself and her child(ren).
It is reasoned that along with the women belonging to the historically oppressed classes, 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 woman 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 behind bars for three years to muster up the funds somehow to pay his wife and dependent child(ren) allowance each month so that they can exist. 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, what if the person cannot do so? 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; However, the Magistrate has been empowered to give bail to the Culprit upon an application for the same filed by him. Under 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 misuse by married Muslim women with sketchy intentions as the Act includes all forms of instant triple talaq, including verbal, in writing or electronic form, through a medium like a text message. Since providing the evidence for talaq-e-biddat in written or electronic form appears to be a straightforward task, proving the genuineness of a verbal triple talaq claim by the Muslim wife, which the Muslim husband opposes, might turn out to be an arduous task as the Act is silent on this part. It might turn out that an innocent man is treated as a criminal and put behind bars for three years, and he is compelled to give an allowance to his wife and children only upon his wife’s word.
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.
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