The Supreme Court of India, in a majority judgement of 3:2, on August 22, 2017, set aside the practice of instant ‘talaq’ or talaq-e-biddat, which was used by Muslim men to divorce their wives instantaneously. This involved the husband saying the word ‘talaq’ thrice, instantly leading to a divorce.
The Supreme Court then asked the government to come up with a law to tackle this issue. And the government did do this, by introducing the Muslim Women (Protection Of Rights On Marriage) Bill, 2017 to the Lok Sabha. But this wasn’t as straightforward as it seems.
Firstly, while drafting the bill, the government didn’t include any of the women activists, groups or even it’s own Minister for Women and Child Development, Maneka Gandhi. It didn’t even consider Shayara Bano’s opinion, who petitioned the case in the Supreme Court.
This bill was to be introduced on December 29, 2017, and the voting was to be done later in the session.
But then the bill was suddenly changed from just an introduction to the consideration and passing of the same. This is exactly how the tax bill was passed in the US. The Republicans had made last minute decisions to introduce the bill, and it also had a $300 billion error, which showed the negligence of the Senators. The abrupt introduction of the bill, indicated that the government was in a hurry to pass this bill. This also denied the MPs to study the bill in detail.
The government even said that the bill wouldn’t be sent to a committee. Committees are an essential part of Parliamentary democracy, and play a very important role in removing the shortcomings of the bill. The government’s denial to do so has outraged many.
Then comes the bill itself. This bill has many shortcomings.
According to the 3rd clause of the bill,
“Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.”
This doesn’t even make any sense. Section 2(b) defines ‘talaq’ as talaq-e-biddat, any other form of talaq which has ‘instantaneous and irrevocable effect’. After Shayara Bano, those three words uttered together have no such effect. So the entire bill fails.
But let’s move on. The 4th clause states –
“Whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine.”
Let me break it down for you. If a husband says the word ‘talaq’ thrice, he’ll land in jail. This has several problems, and the government or the law minister have issued no response to them.
Who has the burden of proof? How can the wife prove that her husband said the words? Can’t this law be severely misused?
Why three years of punishment for saying ‘talaq’ three times? If saying it has no legal or civil binding, as stated by clause 3, why should it result to send someone to prison?
What is this “fine”? Why be this vague? Who decides what the fine is, and on what basis?
What if the wife doesn’t want to prosecute the husband?
Why does this law bring criminality into a civil matter?
This clause fails to answer any of these questions.
The next clause doesn’t make things any better –
“Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced, shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children as may be determined by the Magistrate”
Some questions need to be answered here –
What if the husband isn’t in a state to give any allowance to the wife?
Can’t the couple reconcile before the Magistrate? Why is the prison term necessary?
The main issue with this bill is that it conflates a civil matter of Triple Talaq with criminality. Just saying ‘talaq’ thrice will land you in jail. Isn’t this a breach of freedom of speech? If saying it has absolutely no meaning, as said by the SC’s judgement, then why is the government criminalizing it? Why can I say ‘divorce’ thrice but not ‘talaq’, when both of them are equally useless according to the law?
And what if the husband abandons the wife without saying these words? So saying ‘talaq’ thrice and not abandoning the wife is a greater crime than leaving your life without a divorce? If after saying ‘talaq’ thrice, the husband leaves the wife, sure put him in jail. But why criminalize just saying the words?
But we do have some hope. The Congress Spokesperson, has said that the government is against criminalizing saying the words itself. Since the government isn’t in a majority in the Rajya Sabha, we can expect some amendments to the bill.
Also, the bill puts no effort into a reconciliation between the husband and the wife. It might simply be the case of the husband say so in anger. He might be sorry now, and apologize, and not leave his wife. But according to law, he’s still a criminal.
And don’t get me started on the misuse of this law. The opposition asked the government various times on whom the burden of proof lies, but neither the government nor the law minister gave any satisfying answer.
The Lok Sabha, thanks to the BJP Majority, rejected all amendments, many of which tried to address these important issues.
But is the BJP really trying to help women? Why only help Muslim women? Why not help those millions of Hindu women who currently are raped by their husbands, and can’t do anything because marital rape is legal?
If anything, this bill proves the BJP’s hidden agenda of communal politics, which is paved with hypocrisy and nothing else.