Talaq – e –
Biddat or Triple Talaq as it is commonly known is a form of divorce in which a
man may divorce his wife by saying the words Talaq three times. This may be
done by writing or simply by forms of electronic media such as SMS or e-mail. On
22 August 2017, the Supreme Court of India, in a 3:2 majority judgement ruled
that Talaq – e – Biddat is unconstitutional and declared the practice as void.
However,
despite the judgement of the Supreme Court, reports of Triple Talaq being
practiced have been widely circulated in the media. In an attempt to counter
this menace the Government of India came up with the The Muslim Women
(Protection of Rights on Marriage) Bill, 2017.
Before getting
into the need and merits of the Bill, let us briefly have a glance at the
history of interventions with regard to Triple Talaq.
The History
In 1978, a
Muslim Lawyer in Madhya Pradesh divorced his wife Shah Bano, by pronouncing
Triple Talaq due to disputes between Shah Bano’s children and his other wife.
As per Muslim personal law, he paid three thousand rupees to his divorced wife during the period
of iddat. Shah Bano approached the Magistrate seeking
maintenance from her husband.
The Magistrate
ordered the husband to pay Shah Bano twenty-five rupees every month as maintenance. She further
appealed to the Madhya Pradesh High Court in 1979 where the amount was raised
to Rs179.20 per month. This decision was challenged and the case reached the
Supreme Court where a five judge Constitution Bench was set up to hear the
matter.
The Bench
delivered an unanimous judgement upholding the decision of the High Court. The
Court ruled that as per section 125 of Code of Criminal Procedure, the religion
of spouses was wholly irrelevant as the purpose of it is to protect dependents
from vagrancy and destitution.
On 16 October
2015, the Supreme Court questioned whether Muslim personal law practices of
marriage and divorce ‘reduce women to mere chattels’. In a very rare decision,
the Court took suo moto steps to register a Public Interest Litigation (PIL)
titled ‘Muslim Women’s Quest for Equality’. The Constitution Bench decided to
examine the constitutional validity of Triple Talaq. This ultimately led to the
historic judgement of 22 August 2017, where the Court declared the practice of
instant divorce as unconstitutional.
The Muslim Women (Protection of Rights on Marriage) Bill, 2017
The Government
introduced The Muslim Women (Protection of Rights on Marriage) Bill, 2017 in
the winter session of the parliament to give legislative effect to the
judgement of the Court. The main aspects of the bill are:
- Declaration of Triple Talaq as a cognizable offence
- Three year jail term for offenders
- Husband to pay maintenance to the wife in a manner determined by the Court
Let us now
look at each aspect of the bill.
- Declaration of Triple Talaq as cognizable offence
Since the day
Supreme Court declared Triple Talaq as unconstitutional, it ceased to have any
legal recognition. But in this bill, the government revives triple talaq to declare
it void afresh. It is therefore difficult to understand the logic behind
declaring an act which has no legal consequence whatsoever, as an offence.
- Three year jail term for offenders
It is widely
accepted that marriage is a civil contract. In the same sense, termination of
that marriage should also be treated in the same manner. It is best to keep
personal lives of citizens outside the scope of criminal law unless elements
such as physical violence are involved. We must not forget that many grounds of
cruelty are sufficient to seek divorce, but the same grounds do not qualify for
criminal prosecution.
- Husband to pay maintenance to the wife in a manner determined by the Court
Not all
families are well off. If the husband has no fixed asset through which he earns
a regular income, then how would be pay maintenance to his wife while he is in jail?
If he has his parents living with him, who would cater to their needs? These
are some of the questions that have to be addressed as far as maintenance is
concerned.
Conclusion
While no sane
individual would oppose protection of women’s dignity, it is important for
lawmakers not to let that emotion override other aspects while legislating. In
our quest for delivering justice we should not end up creating watchdogs in our
home. It is high time the Government stops being adamant and invites all
stakeholders for thorough discussion on all aspects of this proposed law. While
the intention is commendable, we must not forget that the road to hell is
sometimes paved with good intentions.
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