Triple Talaq: The Bill And The Blunders

Posted by Avinash Giri in Human Rights, Politics, Society
January 9, 2018

Last month, when The Muslim Women (Protection of Rights on Marriage) Bill 2017 was tabled and passed in The House of People, many questions were raised by some members of Parliament regarding its legality and intentions. This bill sailed through the Lower House despite the irregularities in it. This much-sought-after bill disappointed many people owing to its poor draft.

The Legal Blunders

This Bill, in its section 3, declares talaq-e-biddat as void and illegal. Having declared it void, it goes on to set the quantum of punishment as imprisonment (which may extend to three years) and a fine, in its section 4. Barely four months ago, the Supreme Court in the Sharaya Bano V. Union of India, etc case declared this practice as invalid and said that it doesn’t dissolve the marriage. If the practice stands invalid and doesn’t dissolve the marriage, how can it end up being a criminal offence that should be severely punished as per section 4 of this Bill?

One more question that sections 3 and 4, if read together, raise is- if it doesn’t break the marriage then what harm does it do to society and the woman (on whom triple talaq has been pronounced), which requires it to be made a criminal offence, punishment of which may extend to three years of imprisonment and a fine? On this issue, M.J. Akbar, Minister of state for foreign affairs, conceded that it (criminality) is an issue and added that “I’m sure the minister (law) is listening.

Marriages in the Muslim community are considered a contract, unlike the Hindu community where they are considered sacred. Any breach of contract – not to be confused with cheating -­ is dealt with through civil laws, not criminal ones, unlike this bill where it is considered a criminal offence.

Section 7 of this Bill makes the offence cognizable and non-bailable. A cognizable offence is one in which the police can arrest the accused without any warrant (according to section 154 of the Code of Criminal Procedure, 1973). When all the other offences relating to marriage – according to the First Schedule of Classification of Offences – have been kept in the category of non-cognizable offence (i.e, a warrant is necessary to make an arrest), this particular offence has been made, despite being an offence relating to marriage, a cognizable one. This amounts to the selective targeting of the people of a particular religion with stringent laws. At a time when minority communities are already suffering from hate crimes like mob lynching, such a legislation will only add to their growing distrust towards the system.

Two more sections that do not make sense are sections 5 and 6. In section 5, this Bill says, “… [the] 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.” The aberration here is, when the marriage is intact even after the pronouncement of triple talaq, where does this idea of ‘subsistence allowance’ – that sounds exactly like alimony – come from? And, when the husband would be in jail, how is he expected to pay the allowance?

A similar contradiction is there in section 6 also, which talks about the custody of children after the pronouncement of triple talaq. Again, when the pronouncement isn’t affecting the marriage, how does the question of ‘custody of children’ arise? The bill nullifies the pronouncement of triple talaq in its initial section and then goes on to presume that it actually results in divorce and brings up the issue of allowance and custody of children.

Keeping in mind all these contradictory positions in the bill, one might see some weight in Asaduddin Owaisi’s remark when he called the Law Minister a poor drafter of law.

Institutional Shortcomings

The bill in its statement of objects and reasons reads, “In spite of Supreme Court setting aside talaq-e-biddat, and the assurance of AIMPLB, there have been reports of divorce by way of talaq-e-biddat from different parts of the country… It is, therefore, felt that there is a need for State action to give legal effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce.” The deterrence policy exercised in this bill is rather retributive than reformative. It talks of giving the Supreme Court’s verdict, on this issue, an effect, but goes rather against its spirit – that was more reformative than retributive. The statement of objects and reasons of this bill might be and should be appreciated for the reason that it talks about redressing the grievances of victims of triple talaq, but that also does not absolve the government of the poor drafting of this proposed legislature, and the extent to which it is trying to go to redress the grievances in the form of retributive justice.

Any noble cause should be noble in its reasoning, vision, means of operation, and implementation. This bill focuses more on an arrangement-focused form of justice for Muslim women by using strict criminal punishment as a deterrent rather than a realization-focused understanding of justice, which could have been achieved had the proponents of the bill involved all the stakeholders in discussion (which is not exclusive in this case and can be found in various other laws also).

What makes a law effective is the process that it follows to achieve a particular consequence. The theory of process-independent view of consequences breeds more trouble for a society. Making Talaq-e-biddat a cognizable and non-bailable offence reminds me of John Rawls’ transcendental institutionalism, which advocates institutional arrangement against all the problems of the society. It doesn’t work when the problems arise from the behavioural transgressions of the individuals in the society.

The government that gives arguments against the recognition of Marital Rape as a criminal offence, like, “criminalizing marital rape may destabilize the institution of marriage apart from being an easy tool for harassing the husbands …” takes a completely different stand on this issue of triple talaq.

The Bill sailed through the House of People owing to the number strength that BJP has in the house. As it has been stalled in the Upper House, this bill needs extensive dialogue, involving all the stakeholders. It is not merely a simple marriage-related issue. The government, while enacting such a law, should reckon with the fact that minorities are already being subjected to different forms of cruelty viz lynching, abuse, etc, and so their step in this direction would appear as adding insult to injury – which, in this case, is the opposite.