(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 4 January 2018.)
There was chaos in the Rajya Sabha after Minister of Law & Justice Ravi Shankar Prasad tabled the Muslim Women (Protection of Rights on Marriage) Bill 2017. The ‘Triple Talaq Bill’, as it’s come to be known, was introduced and passed in the Lok Sabha last week.
Members of the Opposition moved a notice asking for the Bill to be referred to a Select Committee of the Rajya Sabha, to properly analyse it and suggest amendments to it. This was vociferously contested by Finance Minister Arun Jaitley, who argued in favour of the Bill.
As the debate raged on and caused the House to be adjourned, here’s a quick check on the arguments raised today for and against the Bill.
NOTE: All references to triple talaq should be read as references to instant triple talaq (talaq-e-biddat).
Did the Supreme Court actually only temporarily ban triple talaq and ask the government to make a law on it?
According to both Arun Jaitley and Ravi Shankar Prasad, the reason why the Bill can’t be sent to a Select Committee is because the Supreme Court ban on triple talaq was only for 6 months, and will expire on 22 February 2018. According to them, the Supreme Court had directed that Parliament should frame a new law banning triple talaq, which is why they brought in the Triple Talaq Bill.
Unfortunately, as pointed out by Congress MP Kapil Sibal, this is not true.
It was the minority judgment of ex-CJI Khehar and Justice Abdul Nazeer in the Shayara Bano case that suspended triple talaq for 6 months and instructed the government to form a new law. The majority of the judges, however, struck it down with immediate effect and on a permanent basis.
It’s the majority judgment that becomes law in such situations, not the minority judgment. This justification for moving the Bill so quickly, without consultation, and without reference to a Select Committee, is therefore entirely invalid. It should also be noted that not even the minority judgment recommended that the practice should be criminalised.
Why are opponents of the Bill saying that it will not benefit the wife?
The chief opposition to the Bill has focussed on the fact that it makes the pronouncement of triple talaq punishable with imprisonment for up to three years. The entire point of fighting against triple talaq is to prevent the break-up of a marriage and family, and ensure that the wife in such circumstances is not left without money and the means to survive.
However, if the husband is sent to jail, this not only means that the marriage is in effect broken up, but it also makes it more difficult for the wife to be provided for. Supporters of the Bill point out that the wife is entitled to receive a “subsistence allowance” from her husband if he pronounces triple talaq on her. But this ignores the fact that triple talaq tends to be used as a form of divorce in poorer parts of the community, meaning that the husband is unlikely to have sufficient wealth to provide for his wife during his term in prison.
The Bill includes no measures for reconciliation – despite the false claims of some supporters of the Bill that it provides for reconciliation measures before the husband is arrested. Any such measures are up to the discretion of the police and Magistrates, reliance on which is extremely misguided, especially since the offence is cognisable and non-bailable.
Why doesn’t this argument apply to dowry harassment and cruelty cases?
Comparing the two situations is like apples and oranges, because it ignores why the particular activity is unlawful in the first place. As pointed out earlier, triple talaq being illegal is meant to keep the family together. Since the Supreme Court has already declared the practice to be unlawful, the focus on any law needs to be on reconciliation, and protection of the wife’s interests.
In dowry harassment and cruelty cases, the issue isn’t reconciliation, but stopping the commission of the mental and/or physical harm to the wife, and punishing the actions which led to that harm. Any comparison of triple talaq with other crimes needs to keep this distinction in mind, or becomes irrelevant whataboutery.
Is it true that the Congress supported the Bill in the Lok Sabha and are only raising objections in the Rajya Sabha, in a hypocritical way? What about other Opposition MPs?
Congress MPs present in the Lok Sabha debate did vote in favour of the Bill. Even in the Lok Sabha, Leader of the Congress Mallikarjun Kharge had asked for the Bill to be referred to the Parliamentary Standing Committee on Law and Justice, despite eventually voting in favour. This is therefore not divergent from the stance in the Rajya Sabha where the Congress has asked for the Bill to first be referred to a Select Committee.
As for other Opposition parties, the RJD, CPI(M), AIADMK and BJD had all opposed the Bill in the Lok Sabha, and supported the Congress motion in the Rajya Sabha. The TMC, DMK, and others who had supported the Bill in the Lok Sabha also supported the proposal to refer the Bill to a Select Committee, on the basis that the Bill was faulty and required suggestions from different stakeholders.
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