The issue of Triple Talaq traces back to 2016, when the Supreme Court had sought assistance from the then Attorney-General of India, Mukul Rohatgi, on pleas challenging the constitutional validity of triple talaq, nikah halala, and polygamy, to assess whether Muslim women face gender discrimination in cases of divorce.
Opposing the practice of triple talaq, the Centre told the top court that there is a need to re-look at these practices on the grounds that they are in conflict with gender equality and secularism. The Supreme Court set up a five-judge constitutional bench to hear and deliberate on the challenges against these three practices.
The issue gained political momentum on March 2017 when the All India Muslim Personal Law Board (AIMPLB) told the Supreme Court that the issue of triple talaq falls outside the judiciary’s realm, and that these issues should not be touched by the court. However, on August 22, 2018, the Supreme Court set aside the decade-old practice of instant triple talaq saying it violated Article 14 and 21 of the Indian Constitution. The apex court asked the parliament to draft a law on the issue. Consequently, a bill was introduced by the NDA government in the Lok Sabha as The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018.
The Bill had a number of things which were not quite right in the context of law of the land.
As per Jeremy Bentham, “offences must be classified solely on the basis of the harm perpetrated, and there must be an appropriate proportion between crimes and punishments.” And utilitarian calculation underlies not only human actions in general but legal punishment in particular. Marriage in Islam is a contract. Based upon this it will be a civil wrong and that too when there is a breach like non-payment of mahr (dowry) amount etc. But the mere act of triple talaq does not constitute breach per se. J. S. Mill’s Harm Principle says “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” The act of triple talaq does not harm the wife, as the Supreme court in its judgment has already said that triple talaq does not invalidate the marriage and does not result in divorce. The acts which were done in furtherance of triple talaq should be made punishable instead of the mere act itself.
In the era where homosexuality and adultery are decriminalised, acts like desertion are not. Offences like bigamy are non-cognisable, while Section 7 of this Bill says “Notwithstanding anything contained in the Code of Criminal Procedure, 1973, —(a) an offence punishable under this Act shall be cognisable”. Criminalising triple talaq would be against this ongoing jurisprudence.
The extent and applicability section says that “It shall be deemed to have come into force on the 19th September”. A man can be punished for the act which he didn’t know was a crime at the time he committed it. Criminalising some act with retrospective effect is a gross injustice as against Article 20(1) of the Constitution and also against the Criminal Justice System.
Further, Section 3 of the Bill says “Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.” It is very difficult to determine the act when it is done in spoken form and it may lead to gross misuse of the law.
The bill is in violation of Article 26 of the Constitution which says freedom “to manage its own affairs in matters of religion”. It is against Article 14 as divorce in every religion should be made punishable. Also taking into consideration what the preamble of the Constitution of India, which says “LIBERTY of thought, expression, belief, faith and worship”, the Bill is, once again, against the Constitution.
The Bill seems useless, as the acts under this law could easily be incorporated under the Domestic Violence Act, 2005, wherein it could have been categorised as verbal and emotional abuse.
The name is The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018, but when the purpose is to protect Muslim women, how can this be made possible by sending the husband to jail after which he can’t even pay the maintenance and provide other benefits to his ex-wife?
Now the contentious Bill is set to be tabled in Rajya Sabha. The bill was passed by the Lower House with 245 voting in favour and 11 opposing it. However, the opposition walked out of the session. Now Law Minister Ravi Shankar Prasad will table the Bill in Rajya Sabha. The opposition is all set to oppose the Bill as the BJP-led NDA lacks numbers in Rajya Sabha.