A triple talaq bill has been approved by India’s parliament that makes the Muslim practice of “instant divorce” a criminal offence.
“Triple talaq”, as it’s known, allows a husband to divorce his wife by repeating the word “talaq” (divorce) three times in any form, including email or text message.
The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was introduced in Lok Sabha by the Minister of Law and Justice, Mr Ravi Shankar Prasad on June 21, 2019. It replaces an Ordinance promulgated on February 21, 2019.
The Bill makes all declarations of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce. Talaq-e-biddat refers to the practice under Muslim personal laws where the pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
Offence and penalty: The Bill makes a declaration of talaq a cognizable offence, attracting up to three years imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person without a warrant.) The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.
The Bill provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
The offence may be compounded by the Magistrate upon the woman’s request (against whom talaq has been declared). Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute.
Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the funding will be determined by the Magistrate.
Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The Magistrate will determine the manner of custody.
What is Talaq-e-biddat?
- If a man belonging to the religion of Islam pronounces talaq thrice either orally or in written form to his wife, then the divorce is considered immediate and irrevocable.
- The only way to reconcile the marriage is through the practice of Nikah Halala, which requires the woman to get remarried, consummate the second marriage, get divorced, observe the three-month iddat period and return to her husband.
What are the issues in Triple Talaq Bill?
- Divorce is a civil matter and making Triple Talaq a criminal offence is disproportionate to criminal jurisprudence.
- The Supreme Court declared Triple Talaq invalid and did not ask the government to make it a penal offence.
- The Supreme Court by holding that Triple Talaq is unconstitutional implied that the mere utterance of Talaq thrice does not result in the dissolution of marriage, rather it remains intact.
- However, by criminalizing Triple Talaq the law presumes marriage has ended and for that Muslim man shall be punished.
Thereby criminalizing the Triple Talaq goes against the spirit of the Supreme Court judgement.
- Further, if the husband is imprisoned, how he can pay maintenance allowance to wives and children?
- Also similar to the misuse of Indian Penal Code section 498A (Dowry Harassment) which led to harassment of the affected men, the penal provision in Triple Talaq can be subject to such harassment.