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Significance: A bill seeking to criminalize the practice of instant triple talaq among Muslims is set to be introduced in the Lok Sabha on Thursday. The Muslim Women (Protection of Rights on Marriage) Bill, 2017, is listed for introduction in the Lok Sabha by law minister Ravi Shankar Prasad on 28 December, according to the list of business in the Lower House.

The bill, prepared by an inter-ministerial group headed by home minister Rajnath Singh, makes instant triple talaq in any form- be it through speech, in written form or by electronic means such as email, SMS and WhatsApp- illegal and void.

What is triple talaq and why controversy about it: It is a practice in Islamic law whereby a divorce is effected by the husband’s enunciation of the word ‘talaq’ which is permissible in their law.There are three forms of talaq: Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable. Biddat — pronouncing divorce in one go by the husband — is irrevocable.

The All India Muslim Personal Law Board holds that for the Hanafis(a school of thought within Islam religion), who make up more than 90% Sunnis in India, triple talaq is a matter of faith followed for 1,400 years. The Central government and the All India Muslim Personal Law Board (AIMPLB) have been locked in a fight over the issue of triple talaq.

AIMPLB argue that the practice of triple talaq is a matter concerned with personal law and it cannot be interfered by courts or the legislature on the grounds of violation of fundamental rights.

Milestone incidents of triple talaq issue: 

Shah Bano Case: The case arose because of a conflict between the wife and husband about maintenance fees for the wife during divorce period. Shah Bano appealed to Supreme Court in this case. Husband maintained that under Muslim personal law he was obliged to pay her maintenance for a period of three months only. However, the Madhya Pradesh High Court and later the Supreme Court decided in Shah Bano’s favour, granting her maintenance for life under Section 125 of the CrPC. The Supreme Court said that since the CrPC was common for all citizens she could claim maintenance under it and that Muslim personal law would not be applicable in this matter.

The controversy turned to a major political issue as  Muslims organised protests against the Supreme Court decision. Ultimately the Rajiv Gandhi Government bowed to the pressure and enacted a law exempting Muslim women from the purview of Section 125 of the CrPC. The new law, the Muslim Women (Protection of Rights on Divorce) Act, came into force in 1986. Progressive Muslims and others dubbed this enactment as a great setback for Muslim women. They felt that Section 125 of the CrPC was not essentially un-Islamic. The new Act provided for one-time payment to Muslim women who were divorced under triple talaq.

Shayara Bano case: She was the original petitioner in the case against triple talaq after she approached the court in 2016 demanding that the instant talaq pronounced by her husband be declared as void. She also contended that such unilateral, abrupt and irrevocable form of divorce be declared unconstitutional, arguing that the practice of triple talaq violated the fundamental rights of Muslim women. The Supreme Court struck down the practice of saying talaq or divorce three times in one go as arbitrary and unconstitutional and said it violated women’s right to equality and was against the tenets of Islam.

AIMPLB on Supreme Court Verdict: The AIMPLB welcomed the verdict since it accords protection to Muslim personal law and says that personal laws cannot be tested by courts on the grounds of violation of fundamental rights. They said the judgement ensures the fundamental right of citizens of this country to freely profess and practice their religious faith/beliefs under Article 25 of the Constitution. However, the decision of Supreme Court to strike down triple talaq as unconstitutional is not welcomed by them.

Muslim Women Protection of Rights on Marriage Bill, 2017: Bill prescribes a punishment of three years and fine for any man who resorts to triple talaq, making it a cognizable and non-bailable offence. However, there are some issues with regard to the proposed bill:

  • Non-proportionate punishment: Marriage is a civil matter but the bill tries to criminalise the people who undertake triple talaq which is non-proportionate in nature. Bharatiya Muslim Mahila Andolan, one of the petitioners in the case titled Muslim Women’s Quest for Equality, says that the Bill should be referred to the Standing Committee of the Parliament and amendments should be made.
  • Gender justice not achieved: Bill was tabled to bring about a level playing field between Muslim women and men. It sought to avoid the discriminations against them. However, criminalization in itself cannot serve the objective. The deterrence in this law should be guided by the other progressive laws such as the bigamy law, dowry law or the law against domestic violence.
  • Bill not codified family law: The Muslim women must get legal parity just like Hindu women and Christian women through codified law. A codified Muslim family law based on the Quran and compliant with the Constitutional provisions could bring dignity, equality to them. however, it does not present a codified law.
  • Non-consultative: Bill was prepared without any consultations with the AIMPLB or even with representative organisations of Muslim women. Thus, it is not comprehensive overall. Also, the bill was not referred to any Standing Committee of the Parliament which brings a narrow picture to the legislation tabled in Parliament.