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Triple Talaq Bill – The Difference Between A Bad Practice And Bad Legislation

Yesterday, the Triple Talaq Bill got passed in the Lok Sabha. Passed is a weak word – bulldozed through sounds better. Not only was the Bill supposed to be introduced on the December 22 (Friday), but, the introduction date was shifted to yesterday and it was under consideration and passed on the same date. If it had been introduced on Friday, the contemplation over the Bill could have been much better, more nuanced and more deliberate. There was no time to properly analyse the legislation until it was too late.

There was absolutely no consultation done with any Muslim women group or any Muslim group at all (see image below).

Lok Sabha answer showing no consultation happened with any Muslim organisation.

Furthermore, the Bill was not sent to any Standing Committee. Standing Committees are the ‘watchdogs of the Parliament’ as one member put it during the discussion on the Bill and with that oversight, they have been excellent at spotting errors and recommending amendments that have gone on to improve Government Bills. Yet, the ruling party did not do that. Even for 15 days as the Opposition suggested.

That was a missed opportunity as the Bill, in its current form, is largely flawed. The basic premise of the bill, to abolish the practice, is good and everyone in the Parliament (with one exception who was against the whole bill) accepted and agreed. I as well as every citizen should welcome that, as did, the country’s highest judicial authority. But this bill is not the way to do it for several reasons.

Critiquing The Bill

The Bill is short and only has seven sections. Neither was it available to the public before nor were there any consultations with any group.

1. The Supreme Court judgement was split 3:2. The two dissenting judges, which included our-then Chief Justice of India JS Khehar, wanted the Parliament to legislate on this Bill. Obviously, for the sake of democracy, dissent notes are extremely important, but, the majority judgement struck down the practice as unilateral, arbitrary and unconstitutional. That was that. They did not ask the Government to do anything. This means that the Government took the view of the minority judgement, not the majority. I am aware that the Government of India has excellent legal counsel, however, I am unsure as to their understanding of this judgement. Why did they need to bring a bill when the judgment did not require them to?

2. Section 4 reads as,

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.

The Government is putting a civil law i.e. divorce, under criminal law. They are criminalising divorce. This will not be the first time that a civil wrong is criminalised, as even defamation, can land you in jail. The response of the Law Minister was that criminalising it will act as a deterrent against a husband arbitrarily declaring divorce. This makes no sense as ‘forceful divorces’ would mean either harassment or abuse of women. We already have IPC 498A for that, along with several other provisions for crimes against women. Why is divorce being criminalised despite this?

3. In law, mens rea means a person’s awareness that what they are doing is a crime. The Bill has no provision for that nor does it clarify the stance of mens rea. This means a person is liable for jail without actually intending to divorce his wife. The actus rea (the action of crime) i.e. saying ‘Talaq, Talaq, Talaq’ will be enough to send him to jail.

4. Section 3 reads as,

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.

If talaq-e-biddat (instant talaq) has been deemed null and void, then why, is the husband liable to pay subsistence (maintenance) to his wife? If divorce is outlawed, then why is the husband paying for something divorced people do? Why are you punishing someone for the same crime that you are decriminalising in the same law?

5. The formula for subsistence is not defined anywhere in the Bill. The Minister mentioned that the magistrate will decide it even if it is not mentioned in the Bill. To leave it to the courts is to make it open to possible arbitrariness. The very thing this law is against. A simple ‘based on the husband’s economic status/income’ would have sufficed. A basic sense of reasonableness must be present in the law itself.

6. No retrospective application of this law meaning no triple talaq cases after this law comes into effect will be under this law. The Minister himself said that there have been 100 cases of triple talaq AFTER the Supreme Court judgement. So why, has he not made the Act retrospective? Do the women who were divorced before this Bill not deserve justice?

A good suggestion by an opposition member was that of creating a corpus fund for Muslim women of ₹1,000 crores. No provision for that. There might be times when the husband is unable to pay, then, it might be that the Government could step in with a reserve fund for these women.

7. The law is also open to misuse. Just sometimes, it could be the case that a husband was falsely accused of this. Under Shia law, two male witnesses are required, however, under Sunni, the talaq is done as soon as the wife receives the message (she doesn’t even have to be present). There will be difficulty in implementing this law as it can be turned into a clear case of ‘he said, she said’.

8. The most important point is the sending of the husband to jail if he is guilty. Not to repeat, but, criminalising a civil wrong is not a smart move. Also, relationships are complicated, would it not be better if the husband is sent to family court rather than jail? Or any other reconciliation avenues? Marriages are where fights happen. In some, a lot. Of course, men who desert their wives should be made to pay for it in every sense, but, he could be a good father and his children being deprived could be traumatic. Even the couple’s differences might be workable. Even a small change could save a marriage and maintain family and that makes all the difference.

For context – marital rape is not criminalised but someone saying the word talaq three times, which has already been annulled by the Supreme Court, is.

9. Even small things like the insanity plea (IPC Section 84) has no provision in the Bill. That can be used by the husband maliciously.

There is a difference between opposing triple talaq and opposing this bill. The practice is abhorrent, but this bill is not good enough to be spectacular. What this bill does is be unnecessarily aggressive, and has various drafting problems which can be a problem in the future. What this Government should have done is send this Bill to a Standing Committee.

I have more hopes for the Rajya Sabha than what happened in the Lok Sabha. I hope they will be more aggressive in opposing this bill and the Vice-President will be gracious enough to send this bill to a Standing Committee.