IT is little more than a year since Supreme Court’s five-judge bench invalidated in August 2017 instant triple talaq by a Muslim husband, but talaq-e-biddat refuses to fade away from public memory. Rather, it continues to exercise even the mind of the government. Even as the Muslim Women (Protection of Rights on Marriage) Bill, 2017, to make instant triple talaq a non-bailable offence was pending before the Rajya Sabha, the Union Cabinet convinced the President to promulgate the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018, in order to make talaq-e-biddat a crime.
The Cabinet did not cite any figures to substantiate the claims of a sudden increase in the prevalence of the practice after the apex court had rendered it null and void although Union Law Minister Ravi Shankar Prasad did talk of an “overpowering urgency and compelling necessity” for the promulgation of the Ordinance.
The Ordinance is a watered down version of the Bill, which was passed by the Lok Sabha. In what may be seen as a concession to the demand raised by the opposition, the Ordinance states that in case of talaq-e-biddat only the woman or her family members can lodge a complaint with the police. Earlier, any third party could do so. Instant talaq has been made a cognisable offence. Section 4 of the Ordinance makes pronouncement of instant talaq by a Muslim husband punishable with imprisonment of up to three years and a fine. Also, the errant husband will have to pay maintenance to his wife and children. A district magistrate is empowered to grant bail after hearing the wife. Also, the offence has been made compoundable, wherein the parties concerned can settle the matter between themselves. It is done to enable the marriage to continue if the spouses so desire.
However, the Ordinance is silent on how the jailed husband can be expected to provide for the maintenance of his wife or the welfare of his children. The provision in the Ordinance is weaker than what a Muslim woman or her children are entitled to from her husband/father in Islam. Islam gives a maintenance right to a divorced woman and makes it incumbent upon the father to provide for his children’s food, clothing and education. Even for suckling a little child, the wife is entitled to compensation. The Ordinance, however, seeks to reduce her right to merely a token, as the jailed husband is unlikely to have avenues for continued earning.
The cosmetic changes fail to address the serious concerns of the Muslim community in particular and all justice-loving people in general. No wonder, around five crore Muslim women participated in a campaign against the proposed Bill that preceded the Ordinance. Agitating under the auspices of the All India Muslim Personal Law Board’s (AIMPLB) women’s wing, they argued that after the Supreme Court had invalidated instant triple talaq, the marriage subsists even after the pronouncement of such talaq. “When the marriage continues and both husband and wife continue to enjoy marital rights, where is the offence?” the women asked. They were participating in a rally at Ram Lila Maidan in New Delhi in August.
“If the motive was to protect a Muslim wife in an unhappy marriage, no reasonable person can believe that the means to ensure it is by putting an errant husband in jail for three years and creating a non-bailable offence for merely saying talaq, talaq, talaq. The motive is not to help the women in distress but to punish Muslim men, and thereby break up Muslim families,” said a participant from Ahmedabad.
Asma Zehra, an AIMPLB women’s wing member, said: “The government made no effort to interact with Muslim intellectuals or even women’s groups. It ignored nearly five crore signatures against the proposed Bill making triple talaq a criminal offence. What was the hurry when the Rajya Sabha was due to deliberate on the Bill in the next session?”
Islamic women activists from the south, notably, Kerala, Andhra Pradesh and Telengana, raised similar objections. The Samastha Kerala Jamiathul, one of the biggest religious organisations of Sunni Muslims in Kerala, moved the Supreme Court challenging the constitutionality of the Ordinance. It argued that the only objective of the Ordinance was perhaps to “punish Muslim husbands”. “Even if we were to accept the government’s stance, the Ordinance is riddled with contradictions. If the marriage subsists after the triple talaq announcement, where is the crime? If it is a wrong committed by the husband, it is a civil matter. Why bring criminal provisions to what is essentially a civil matter? Isn’t nikkah a civil agreement which can be dissolved accordingly?” they asked.
This view is shared by a number of Muslim ulemmas. They question the government’s hurry in bringing in an Ordinance when no pressing instances of instant talaq had been brought to public attention. The New Delhi unit of the Jamaat-e-Islami Hind asked pertinent questions regarding the various sections and subsections of the Ordinance. “Leaving aside the possible political motive, Section 2 (b) of the Ordinance signed by the President defines talaq-e-biddat as any form of talaq “having the effect of instantaneous and irrevocable divorce”. Yet in the next section it is said that such a pronouncement “shall be void and illegal”. If Section 2 considers it an irrevocable divorce, how come Section 3 renders such a divorce null and void?”
Jamaat’s president Maulana Syed Jalaluddin Umari said that if the government was sincere about the welfare of Muslim women, it should hold discussions with ulemma s and experts of Islamic jurisprudence over the entire triple talaq issue. “If pronouncement of instant triple talaq does not dissolve marriage, where is the need to bring about a law in a tearing hurry? Any woman who faces the same can approach the court and get justice. The Ordinance is against the spirit of the Constitution of India, which gives every citizen the right to practice his or her own religion and personal laws. The Ordinance contravenes the Shariah laws, too.”
Umari is right. The Ordinance goes against the Fundamental Rights enshrined in the Constitution. By seeking to arbitrarily curtail the personal liberty of a citizen who has not committed an offence, and whose marriage subsists, the move to jail him goes against Article 21 of the Constitution, which clearly states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
At another level, the Ordinance goes against the letter and spirit of the Quran, which was quoted by the Supreme Court when it set aside instant triple talaq. Indeed, the Quran provides for both a revocable and an irrevocable divorce. The procedure is outlined in two separate chapters, namely, “Surah Baqarah”, the longest chapter in the Quran, and “Surah Talaq”. A single pronouncement of divorce—or even multiple pronouncements at the same time—has the effect of a revocable divorce, which the husband can take back either through word or action within the period of iddat (waiting). Simple cohabitation between the spouses renders the divorce null. It is under the light of these verses that the Ordinance takes away the right of the sparring couple to sort out their differences or annul divorce through simple cohabitation in bed. In a hadith, the Prophet Muhammad says he was confronted by a woman in a similar situation. The woman complained to the Prophet that her husband had divorced her. Upon this, he asked whether her husband had said talaq in three separate sittings across three months or at one go. When the woman revealed that her husband had made multiple pronouncements at one sitting, he considered it only a single divorce, hence revocable. He allowed the woman to go back to her husband. Incidentally, there are eight ways that are legally sanctioned or allowed by the scriptures through which a Muslim marriage may end; talaq-e-biddat is not one of them.
An interesting anomaly in the Ordinance was pointed out by Maulana Mahmood Madani of the Jamiatul Ulemma-e-Hind who responded to Ravi Shankar Prasad’s claim of dire need for the Ordinance by saying: “According to the latest figures available, there have been 201 incidents of talaq in two years, or 100 cases per annum, in the 16-crore Muslim community. It does not warrant such a hasty Ordinance. It is a clear instance of dictatorship. The government did not even feel the need to consult the community.”
Another Jamiat member pointed out that the Ordinance was self-contradictory: “The Ordinance’s Section 4 mandates a three-year imprisonment and fine. But Section 7 declares it a cognisable and non-bailable offence. Which Section operates?”
Not surprisingly, the All India Muslim Majlis-e-Mushawarat (AIMMM), an umbrella organisation of Muslim bodies, believes the Ordinance is likely to fall under the weight of its contradictions. “It is at best a diversionary tactic,” stated AIMMM president Navaid Hamid. “The government wants to deflect attention from its failures and burning issues such as rising fuel prices and corruption. I believe the government’s sole aim is to incite the community to give it a communal colour. If the government is sincere about the welfare of Muslim women, it should tell us the steps it has taken for Muslim widows whose husbands have been killed in lynching cases in the past four years.”
Zehra said: “Protection of wives cannot be achieved with incarceration of husbands.”