The triple talaq Bill — the Muslim Women (Protection of Rights on Marriage) Bill — has come to the Rajya Sabha for consideration after a smooth sailing in the Lok Sabha on December 28. This is an ill-thought-out, hastily conceived legislation, exposing the dubious intentions of the BJP.
What the court said
Let us first consider what the Supreme Court decided. Three separate judgments were rendered. Justice R.F. Nariman and Justice U.U. Lalit held that talaq-e-biddat (triple talaq) as a practice was arbitrary and declared it to be unconstitutional and consequently void. Justice J.S. Khehar and Justice Abdul Nazeer held that being a 1,400-year-old practice, this had become an integral part of the faith of Muslims and could not be struck down as being violative of fundamental rights. They, however, stated that since such a practice is otherwise abhorrent and considered illegal in various Muslim countries around the world and, taking note of the stand of the Muslim Personal Law Board deprecating the practice, it should be discontinued.
Consequently, they granted an injunction against the practice of triple talaq for a period of six months from the date of judgment, enabling Parliament to legislate on the subject. If such legislation were to be initiated, the injunction would continue till the legislation bore fruition. Justice Kurian Joseph held, disagreeing with Justice Nariman and Justice Lalit, that provisions of Muslim personal law cannot be struck down as arbitrary and unconstitutional. He held, however, that this particular practice, being sinful and not sanctified by the Koran, was consequently not part of personal law, disagreeing with Justice Khehar and Justice Nazeer to this extent. In essence, therefore, three of the five judges of the Court held this practice to be void, albeit for different reasons. The government chose to take notice of that part of the judgment of Justice Khehar and Justice Nazeer on which they were in a minority and initiated this legislation.
This legislation has three essential features: (1) that triple talaq or any form of instantaneous and irrevocable divorce pronounced by a Muslim is void; (2) that a Muslim husband pronouncing triple talaq is criminally culpable; (3) that the offence is non-cognisable and non-bailable. That the government is not applying its mind is clear from the fact that it seeks to declare void a practice that has already been declared void by the Supreme Court. Had this legislation not been initiated, the practice would still be void. Therefore, the legislation to this extent does no more than restate an existing statement of law. This is inexplicable. The sole intent of the legislation, therefore, is to criminalise the act of triple talaq.
Areas of concern
Criminalisation of this act does not emanate from any part of any of the three judgments rendered by the Supreme Court. This is why in proposing this legislation the government has exposed its dubious intent of targeting Muslim men, who are now liable to be prosecuted for breaching a civil contract, a Muslim marriage being a contract of a civil nature.
The other aspect, which is of concern, is that there is no provision in this legislation which states that the wife alone can file a complaint alleging that an offence of triple talaq has been committed. A third person can file such a complaint on the basis of which the husband alleged to have pronounced triple talaq can be arrested forthwith. Being non-bailable, only a court is entitled to grant bail. This has several implications: (1) the wife who may not wish to complain, her marriage being intact, has to suffer the consequences of her husband being sent to jail. That affects her husband’s capacity to provide for the family; (2) the complaint may be based on a lie, yet the husband may land in jail; and (3) it is not understood why the husband needs to go to jail when the marriage is subsisting and valid.
Further, the concept of subsistence allowance and the right of a woman to custody of her minor children in the event of pronouncement of talaq by her husband are both alien to a marriage which is subsisting and intact. Subsistence allowance or maintenance and child custody are issues which become relevant if there is a proceeding for divorce and the husband chooses not to maintain the family. That cannot be the case here.
The government claims that this legislation has nothing to do with religion and seeks to serve the cause of gender justice. If that is the case, why does this government not shed any tears for our Hindu sisters who are frequently thrown out of the house and have to run from pillar to post to seek their remedies in court? Such proceedings take years while our Hindu sisters languish without support. The same logic applies to our sisters belonging to all other religions who are frequently abandoned by their husbands. Service to the cause of gender justice must not be selective.
This seems to be yet another act of political opportunism by the government to seek electoral benefits. Yet another ‘jumla’. It is time for us to expose the machinations of this government, which seeks to tear asunder families, whose marriages are intact and whose husbands may land in jail despite that.
This article is published in TheHindu on dated 05/Jan/18
Kapil Sibal is a Congress leader, former Union Minister and lawyer