The Parliament passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019, thereby criminalizing the practice of instant Triple Talaq.
The Supreme Court in Shayara Bano case (2017) had declared the practise of Triple Talaq (talaq-e-biddat) as unconstitutional. However, the penal provision of the bill i.e. a Muslim husband declaring instant Triple Talaq can be imprisoned for up to three years is alleged to be disproportionate for a civil offence.
Triple Talaq:
Triple Talaq is a type of Islamic divorce that has been practiced by Muslims in India, particularly the followers of Hanafi Sunni Islamic schools of jurisprudence. t facilitates any Muslim man to divorce his wife legally just by stating the word talaq (the Arabic word for “divorce”) 3 times in oral, written, or more recently, electronic form.
Key Provision:
- Applicability: The Triple Talaq Bill is applicable across the whole of India, excluding the State of Jammu & Kashmir.
- Void and Illegal Pronouncement: Any pronouncement of “talaq” by a Muslim husband to his wife, whether spoken or written, is declared void and illegal.
- Punishment for Pronouncement: Muslim husbands who communicate “talaq” orally or in writing may face punishment, including imprisonment for up to three years.
- Allowance for Subsistence: In case of “talaq” pronouncement, the woman and her children are entitled to receive an allowance for subsistence. The amount can be determined by a Judicial Magistrate of the First Class.
- Custody Rights: A Muslim woman is entitled to the custody of her minor children even if her husband has pronounced “talaq” to her.
- Compoundable Offence: The offence is compoundable, allowing parties to reach a compromise if the Muslim woman insists, subject to terms and conditions determined by the Magistrate.
- Bail Conditions: Accused individuals cannot be granted bail unless an application is filed after a hearing in the presence of the Muslim woman on whom “talaq” is pronounced. The Magistrate must be satisfied with reasonable grounds for granting bail.
Issues in Triple Talaq Bill:
- Civil vs. Criminal Matter: Divorce is traditionally considered a civil matter, and making Triple Talaq a criminal offense is seen as disproportionate to criminal jurisprudence.
- Supreme Court’s Stand: The Supreme Court had declared Triple Talaq invalid but did not mandate its criminalization, questioning the need for a penal provision.
- Unconstitutional Declaration: The Supreme Court’s ruling implied that the mere utterance of Triple Talaq doesn’t dissolve the marriage; criminalizing it presumes the marriage has ended, contradicting the court’s spirit.
- Impact on Maintenance: Criminalizing Triple Talaq raises concerns about the husband’s imprisonment affecting his ability to pay maintenance allowance to wives and children.
- Potential Misuse: Similar to the misuse of IPC section 498A (Dowry Harassment), there are concerns about potential harassment under the penal provision of Triple Talaq.
Government’s Perspective:
- Violations After Supreme Court’s Judgment: The government argued that despite the Supreme Court’s ruling, there were 473 cases of Triple Talaq, leading to the need for a deterrent.
- Comparisons to Past Legislation: The government cited past instances like the enactment of laws to combat untouchability and atrocities against women as precedents for criminalizing social evils.
- Global Ban on Triple Talaq: Highlighting the ban in over 20 Islamic countries, including Pakistan, the government aimed to align India’s stance with global trends.
- Towards Uniform Civil Code: While terming Triple Talaq unconstitutional was a step towards a uniform civil code (Article 44), criminalizing it raised concerns about infringing upon freedom of religion (Articles 25 and 26).
FAQs
Q: What is Triple Talaq?
Triple Talaq, also known as “Talaq-e-Bid’ah” or instant divorce, is a practice in some Muslim communities where a husband can divorce his wife by uttering the word “talaq” (divorce) three times, either in oral, written, or electronic form, often in a single sitting, without any consideration for reconciliation or legal proceedings.
Q: Why is there a Bill to Ban Triple Talaq?
The Bill aims to outlaw the practice of instant triple talaq, considering it discriminatory and unconstitutional. Advocates argue that it violates women’s rights by leaving them economically vulnerable and without legal recourse. Additionally, it’s seen as inconsistent with principles of gender equality and justice.
Q: What are the Key Provisions of the Bill?
The Bill typically proposes criminalizing the pronouncement of triple talaq with imprisonment and fine. It often includes provisions for reconciliation and mediation before divorce proceedings, ensuring due process and protection for women’s rights.
Q: What are the Arguments For the Ban?
Proponents of the ban argue that it’s necessary to protect the rights and dignity of Muslim women. Instant triple talaq can leave women destitute, with no means of financial support or legal protection. Banning it is seen as a step towards gender equality and justice within the Muslim community.
Q: What are the Controversies Surrounding the Bill?
Some critics argue that the Bill could be misused to unfairly target Muslim men and exacerbate communal tensions. Others contend that while banning triple talaq is a positive step, criminalizing it might not be the most effective approach, preferring civil remedies instead. There are also concerns about the effectiveness of implementation and the need for broader societal changes to address gender inequality.
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