The Rajya Sabha on July 30 approved a Bill that makes instant triple talaq a criminal offence, by 99 votes in favour and 84 against. The Lok Sabha had passed the Muslim Women (Protection of Rights on Marriage) Bill last week and with the Rajya Sabha now approving it, the practice of instant divorce by Muslim men will be punishable by a jail term of up to three years.

The Bill has been passed thrice by the Lok Sabha over the past 19 months.

Once granted assent by the president, the Bill will replace an ordinance promulgated on February 21 to the same effect as the Bill.

‘Victory of gender justice’

Replying after a debate on the Bill, Law Minister Ravi Shankar Prasad cited jail provisions in the legislations that ban dowry and multiple marriages by Hindu men to justify the three-year jail term for Muslim men who practice triple talaq.

Prasad said the Bill should not be seen through a political prism as it is a matter of humanity, women’s empowerment and gender equality.

Hailing the Bill’s passage, Prime Minister Narendra Modi said that a historic wrong done to Muslim women has been corrected and an “archaic and medieval practice” confined to the dustbin of history. “This is a victory of gender justice and will further equality in society,” he said.

How did the critics react?

The All India Muslim Personal Law Board called it a “black day” in Indian democracy and said it would challenge the passage of the Bill in the Supreme Court.

Opposition parties say in its current form, the proposed law could be misused to harass Muslims and wanted it to be reviewed by a parliamentary committee.

Leader of Opposition in Rajya Sabha Ghulam Nabi Azad hit out at the BJP saying the Bill was “politically motivated” and its sole aim was the destruction of Muslim families by making them fight legal cases and go bankrupt.

In Islam, marriage is a civil contract and the government is trying to give it a “criminal face” through the proposed legislation, he said.

According to the Supreme Court, triple talaq is null and void, he said, wondering how Muslim men after staying in jail for three years will go home and live peacefully with their wives.

AIMIM president Asauddin Owaisi claimed that the triple talaq Bill is against Muslim women and marginalises them even more.

Background

In a landmark decision, a five-judge inter-faith constitution bench of the SC struck down the practice of triple talaq as unconstitutional with a 3:2 majority ruling. The practice of talaq-e-biddat was deemed to be unconstitutional and violative of Articles 14 and 15.

Three judges called it unconstitutional; the other two dissented but wanted it banned for six months till the government introduces a new law. After deciding that the practice is not integral to Islam, the apex court struck down that part of the 1937 sharia law that gave legal sanctity to triple talaq.

Banned in many countries

Many countries, including Pakistan and Egypt, have abolished the practice. The Arab states that have abolished triple talaq include Algeria, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Sudan, Syria, Tunisia, UAE and Yemen, along with Southeast Asian countries such as Indonesia, Malaysia and the Philippines.

Arguments in favour of the Bill

The Bill has attracted criticism that marriage is a civil contract and breaches therein should not invite penal consequences.

However, the fact remains that instant triple talaq was held to be violative of Article 14, the right to equality, with the SC saying it was “manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it”.

Cruelty in a matrimonial home could be without physical assault, as the SC ruled in several cases making verbal abuse and mental torture part of cruelty. To eradicate social evils, Parliament has taken steps from time to time and prescribed penal consequences.

To eradicate the evil of dowry, Parliament enacted the Dowry Prohibition Act in 1961, and later went on to add Section 498A in the Indian Penal Code (IPC), which jails a husband and his relatives on a mere complaint from a woman about cruelty.

Untouchability was abolished by the Constitution when it came into force in 1950. Yet, the practice continued, forcing Parliament to enact the Untouchability (Offences) Act in 1955, renamed as Protection of Civil Rights Act in 1976. It punished those practising untouchability, directly or indirectly, with a jail term of six months.

Arguments against the Bill

* Branding the husband a criminal may lead to unwanted separation between the couple, against the wishes of the wife in many cases.

* Since Muslim marriage is a civil contract between two adults, the procedures to be followed on its breakdown should also be of civil nature.

* The Bill allows for the aggrieved woman as well as anyone related to her by blood or marriage to be the complainant. There is no provision for a relative to seek the consent of an aggrieved woman before filing a complaint. The problem becomes particularly acute in the case of inter-religious marriages of Muslim men with a woman of another religion.

* The term of imprisonment up to three years is arbitrary and excessive. Even serious crimes like causing death by rash or negligent act (IPC Section 304A), rioting (IPC Section 147), injuring or defiling a place of worship with intent to insult the religion of any class (IPC Section 295) are punishable by two years in jail or fine or both. Thus, it is violative of Article 14 of the Constitution.

* A true reformatory law should have had a fresh look at family laws in Islam and allowed both men and women a court-driven solution when it comes to divorce.

As per the Dissolution of Muslim Marriage Act, Muslim women are allowed to seek divorce by approaching the courts. On the other hand, a Muslim man must turn to the clergy. Also, the talaq in Islam is unilateral - only the man can pronounce it. Even the so-called benign forms of talaq are not available to women.

So, a Muslim man just has to wait for three months, in keeping with Sharia, instead of taking the triple talaq route, and he would have achieved the same ends - that is, had his marriage dissolved, with the wife having no say in the matter.

It may be noted here that the Muslim Family Laws Ordinance does prescribe, in Section 7(2), a simple imprisonment of one year. But this is not for the mere “pronouncement” of talaq, as envisaged in the Centre’s draft law. The husband will incur this punishment only when he pronounces talaq with an intention to divorce but fails to inform the chairman and the wife (in writing) about his pronouncement.

The question now is whether the government will move towards a Uniform Civil Code.