Triple Talaq Bill: In the guise of justice

Print edition : August 30, 2019

The Lok Sabha passed the Triple Talaq Bill on the Islamic instant divorce on August 25. Photo: PRAKASH SINGH/AFP

There are legitimate concerns not only about the Bill criminalising triple talaq but also about the way the government went about passing it in the Rajya Sabha.

IT was on the anvil for a long time. Yet, it managed to catch the opposition unawares, as the veteran Congress leader Ghulam Nabi Azad conceded after the Muslim Women (Protection of Rights on Marriage) Bill, 2019, was passed in the Rajya Sabha by 99 votes in favour and 84 against. The Bill, which criminalises instant triple talaq, is aimed at providing protection to Muslim women against instant divorce. The accused may suffer both imprisonment up to three years and a fine. It follows the Supreme Court’s decision to hold instant triple talaq invalid in the historic Shayara Bano vs Union of India and Ors judgment in August, 2017. The government claimed that there were complaints of instances of instant triple talaq from affected women even after the Supreme Court verdict. The Bill, it was contented, aimed to ameliorate the lot of women.

“An archaic and medieval practice has finally been confined to the dustbin of history. Parliament abolishes Triple Talaq and corrects a historical wrong done to Muslim women. This is a victory of gender justice and will further equality in society. India rejoices today,” Prime Minister Narendra Modi said in a tweet. Said Law Minister Ravi Shanker Prasad: “This is a matter of gender justice, dignity and equality.”

The Bill makes instant triple talaq in all forms, oral, written or through other means, a cognisable offence. The police can arrest an accused without an arrest warrant. The victim, her family, or her family through marriage, or close relatives can file a case. The accused can approach the magistrate for bail, who may grant it after hearing the victim’s side. The woman is entitled to seek subsistence from her erstwhile husband. A compromise can only be arrived at on the request of the aggrieved woman; the magistrate may decide the compensation amount. He will also decide the custody of minor children.

Ghulam Nabi Azad, Leader of Oppostion in the Rajya Sabha, was not pleased with the hurry with which the Bill was pushed through the Rajya Sabha. He said: “I call this cheating. You cannot run Parliament like this. We have also raised the issue in Parliament. This is undemocratic.” He revealed that the government first asked the opposition to give a list of Bills to be sent to the Select Committee. “On the list, the Triple Talaq Bill was on top priority. The government did not tell the opposition whether the Bill was sent to the Select Committee or not.”

As the opposition still enjoys a numerical edge in the Rajya Sabha, the Bill had earlier not been cleared with the opposition, raising several genuine concerns. All India Majlis-e-Ittehadul Muslimeen (AIMIM) leader Asaduddin Owaisi called it a ruse to break Muslim families. However, the day it was passed, Nitish Kumar’s Janata Dal (United), an ally of the Bharatiya Janata Party (BJP), and the All India Anna Dravida Munnetra Kazhagam (AIADMK), parties which had spoken against the Bill earlier, staged a walkout from the House, making things that much easier for the government. At the same time, Bahujan Samaj Party MPs abstained from voting, as did the six members of the Telangana Rashtra Samithi (TRS). Five members of the Samajwadi Party and some from the Nationalist Congress Party (NCP), the Congress and the Indian Union Muslim League (IUML) were absent. It facilitated smooth sailing for the Bill in the Rajya Sabha.

Explaining the absence of MPs from the so-called secular parties at the time of the voting, Azad said that there was not sufficient time for the parties to issue a whip. “I accuse that on Monday night [July 22], the government had clandestinely sent the Bill to be put up before the Rajya Sabha for discussion. The opposition MPs were informed about it on Tuesday morning. No opposition party got the chance to issue the three-line whip. This is the first time in decades for both the Upper and Lower Houses that a Bill was not sent to the Standing Committee, the Select Committee or the Joint Committee. The reason is that this government does not believe in democracy, Parliament and the judiciary. The government wants to run every institution according to its whims, like a department of a Ministry,” he said.

His viewpoint was echoed by Derek O’Brien of the Trinamool Congress. He said the government was bulldozing Bills in the Upper House. “This is like the stealth mode by the government. Are we passing laws or delivering pizza?” he asked.

“Eighteen Bills have been passed. Only one Bill has gone through scrutiny, 17 didn’t. That is only 5 per cent. Earlier, 71 per cent of Bills underwent scrutiny,” O’Brien said.

All political charges and countercharges aside, the Bill got the President’s signature and is now law, replacing the ordinance issued on February 21 this year. Incidentally, it has been an eventful journey for the Bill since the Supreme Court held instant triple talaq unconstitutional in August 2017. In December the same year, the Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, but it could not be passed in the Rajya Sabha. Similar attempts were made in September 2018 and January, and, finally, in February this year. The government took recourse to the ordinance route to make instant triple talaq a criminal offence.

Not everybody appreciates either the route or the content of the Bill. Among the most vocal critics was Asaduddin Owaisi, who asked in Parliament: “You have said in the Bill that the marriage of a couple would be legal even if a man gives triple talaq to his wife. You have proposed three years in jail for the man if he gives triple talaq to his wife. Who would give maintenance to the woman when her husband is in jail? Should she still wait for her husband to come out of jail?”

On the same lines, Congress MP Shashi Tharoor said he was opposing the Bill because of its “text, draft and thrust”, without defending instant triple talaq itself.

Others, including members of the Jamaat-e-Islami, raised several questions. One of them asked: “If the marriage is intact after pronouncement of instant triple talaq, where is the crime? The marriage subsists. According to some schools of Islam, instant triple talaq amounts to a single divorce. It can be annulled through word or action. A simple cohabitation between husband and wife can lead to cancellation of divorce. Now, if the husband is in jail, how can cohabitation between the spouses be resumed? And even for that annulment to take place, there is a provision of a month in Islam. Not to forget the period of waiting during which a patch-up is possible. If the man is in jail for three years, the marriage will automatically collapse.”

Muslims not consulted

The president of the Jamiat Ulama-i-Hind, Arshad Madani, asked: “Why did the government not consult Muslims? Some 99 per cent Muslim men and women would have voted against the Bill. For 1,400 years, we have lived life according to the Quran. Islam wants that a man and a woman who are together should stay together till the end. After pronouncement of talaq, a man gets three months to attempt reconciliation. Even if a man gives talaq twice, he has a chance to atone and come to a compromise with his wife. The Bill makes a mockery of Muslim sentiment. It will break many families, which could have been averted. When husbands and wives fight, children are affected. If the husband is in jail, who will give maintenance, or the children’s school fees? We have certain safeguards provided by the Constitution and will take recourse to the courts.”

Other Islamic scholars, too, called the Bill an infringement of their rights guaranteed under the Constitution. “The Bill goes against the tenets of the Quran. A Muslim man is allowed by the Quran to pronounce divorce twice. After that he can either live peacefully with his wife or give her a final divorce. After pronouncement of divorce, a husband is not allowed to throw out his wife. They are supposed to live together to increase the chance of reconciliation. With the cooling down of tempers, the spouses often realise their follies, and resume their marital relationship.

“The Supreme Court made instant triple talaq invalid. That means a marriage continues even if a man pronounces multiple divorces. There is a Hadith according to which the Prophet is said to have allowed a man who had said multiple talaq at one sitting to go back to his wife. Now such a law takes away that chance. In fact, in many ways, it is contradictory to the Supreme Court’s invalidation of talaq. With criminalisation of a civil issue, it makes sure that no husband and wife can attempt a patch-up,” said Sharf Hussain, a Delhi-based Islamic scholar who has worked for the primacy of the Quran and Hadith in the life of believers.

Sajida Rehman, a women’s rights activist who had earlier played an important part in rallying Muslim women against instant triple talaq, said: “After Talaq-e-Biddat was held invalid by the court, a man and a woman continue to be spouses even after pronouncement of instant triple talaq. Now, if the man is sought to be jailed for uttering the words on merely the complaint of the wife, it could lead to desertion of women. Remember, the government has made instant talaq a crime, but desertion is not a crime. Earlier, women could be at least free after instant triple talaq and try to resume their life. They can now be deserted and they will not be able to resume their married life with a new partner. Nor will they be able to go back to their erstwhile husband. Which husband will take back his wife after spending three years in jail following her complaint?”

Even as Arshad Madani was planning to move the apex court, Kerala’s Samastha Kerala Jamiyyathul Ulama challenged the Bill within hours of it getting the President’s assent. It requested the court to declare it “unconstitutional” and contended that the Bill allowed for penal action on a specific class of people based on their religion. It thus violated the fundamental right to equality as two citizens cannot be given different punishment for the same offence. The petitioner said the Act violated fundamental rights under Articles 14, 15 and 21 of the Constitution.

On the same day, an advocate, Shahid Ali, challenged the law in the Delhi High Court, dubbing it “unconstitutional”. Ali said the Bill was not only against fundamental rights enshrined in the Constitution but also against the principle of natural justice and the Directive Principles of State Policy.