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(An ordinance on triple talaq has received Cabinet approval. In light of this, The Quint is republishing this article from its archives. It was originally published on 5 January 2018.)
The Muslim Women (Protection of Rights on Marriage) Bill, 2017 popularly known as the Triple Talaq Bill, was introduced and passed in the Lok Sabha within a day. In the Lok Sabha, both at the stage of introduction and the stage of consideration, there were repeated demands for stakeholder consultation and reference to a Standing Committee.
The government did not yield to these demands and emphatically stated that it was a simple seven-clause Bill, punishing a social evil that had already been declared unconstitutional.
Pursuant to the declaration of triple talaq as unconstitutional by the Supreme Court, it was incumbent upon the legislature to create a framework for the protection and empowerment of women. As per the government, a civil legislation would not suffice. There was a need to criminalise triple talaq because despite the Supreme Court judgement striking it down as unconstitutional, the practice continued.
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The rationale behind this was provided by Law Minister Ravi Shankar Prasad in his Lok Sabha speech where he said that “the obligation to maintain the wife and children is a continuous social and moral obligation of the husband all over”.
It seems to be the case of the government that the pronouncement of ‘talaq’ by a husband in an instantaneous manner amounts to arbitrary abandonment of his wife and must be treated as a cognisable and non-bailable offence.
However, criminalisation is not necessarily at loggerheads with reconciliation.
Undoubtedly, the practice of triple talaq is derogatory to women and needs a legislative framework to protect their rights, but such a Bill should consider a civil remedy alongside criminal prosecution.
Reconciliation, the Crux of Marriage
Indian society holds the institution of marriage as a sacrosanct union. Presently, the broad structure of all divorce laws in India is to:
- provide manner of giving notice of a desire to separate
- provide procedure for approaching a court regarding the separation
- provide specific grounds for divorce such as cruelty, desertion etc
- provide a period for reconciliation
- make suitable provisions for maintenance, custody, etc
Irrespective of religion, the laws governing marriage and divorce have always focused on reconciliation of marriage as a priority. Under Hindu law, for example, even in case of an uncontested divorce where the husband and wife approach the court together seeking peaceful dissolution of marriage, the court provides a minimum of 6 months for reconsideration or reconciliation.
In fact, notably, most Muslim countries where triple talaq is regulated, also require that a notice is given to the wife and a divorce decree is obtained by a court of law. Some of these countries, like Algeria, Egypt and Bangladesh, provide for a mandatory period of conciliation as well.
Criminalisation Over Reconciliation
Unlike other divorce laws in India, the focus here is on deterrence of the practice of triple talaq through criminalisation rather than the reconciliation of marriage. The Bill does not contain any provisions on any of the above listed aspects except for maintenance and custody.
The Bill, in its present form, fails to provide clarity about the status of marriage during the pendency of such proceedings against the husband.
It is interesting to note that the Bill remains silent on the effect of the criminal proceedings on the marriage – while triple talaq itself is void, do the proceedings and possible jail term provide grounds for divorce or separation?
If this is the case, then this Bill inadvertently legitimises the pronouncement of divorce through triple talaq. If this is not the case, the Bill is inept in dealing with the manner in which a divorce would be obtained – what are the options for the wife now that the husband is in jail?
Loopholes in Triple Talaq Bill
A similar procedural irregularity exists in Hindu law in as much as the criminal offence of cruelty by the husband under the Indian Penal Code (IPC) does not automatically lead to initiation of divorce proceedings. Over the years the judiciary has come down on the provision in question and has highlighted the potential of its abuse. In fact, in 2017 itself the Supreme Court has issued guidelines to water down arrests under this provision.
Especially given that as per National Judicial Data Grid, about 2.57 crore cases are pending before district courts across India. Almost 69 percent of these are criminal cases and 56 percent have been pending for more than 2 years. Taking a cue from this, we must ensure that the power to arrest someone under this Bill (when enacted) is not abused.
Having said that, it would be incorrect to assume that the Bill is unjustly favouring women. The Bill stipulates that once the words ‘talaq’ are uttered, it amounts to a cognisable and non-bailable offence. The Bill currently has not made corresponding changes in evidentiary law as a result of which it will be upon the married Muslim women to prove that the husband made a declaration of talaq and intended to follow through on it.
Provisions for Conciliation Needed
Meanwhile, the husband may readily use the defence of “lack of intention” and claim to be carried away in the heat of the moment. It may be beneficial to first ensure that the husband uttering such words is counselled and a conciliation effort is made for the marriage to strengthen the case of a married Muslim woman.
This is likely to result in a low conviction rate. There is a need to consider provisions with regard to conciliation as such a provision would provide alternate remedies to Muslim women.
Lastly, as of now, the fate of the Bill seems uncertain in the Rajya Sabha as a vote to refer it to a Select Committee is pending.
(The author is a lawyer and a public policy professional. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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