::TRIPLE TALAQ BILL::
The Supreme Court in the matter of Shayara Bano Vs. Union of India and others
and other connected matters, on 22nd August, 2017, in a majority judgement of
3:2, set aside the practice of talaq-e-biddat (three pronouncements of talaq, at
one and the same time) practiced by certain Muslim husbands to divorce their
wives. This judgement gave a boost to liberate Indian Muslim women from the
age-old practice of capricious and whimsical method of divorce, by some Muslim
men, leaving no room for reconciliation. The petitioner in the above said case
challenged, inter alia, talaq-e-biddat on the ground that the said practice is
discriminatory and against dignity of women. The judgement vindicated the
position taken by the Government that talaq-e-biddat is against constitutional
morality, dignity of women and the principles of gender equality, as also
against gender equity guaranteed under the Constitution.
The All India Muslim Personal Law Board (AIMPLB), which was the 7th
respondent in the above case, in their affidavit, inter alia, contended that it
was not for the judiciary to decide matters of religious practices such as
talaq-e-biddat, but for the legislature to make any law on the same. They had
also submitted in the Supreme Court that they would issue advisories to the
members of the community against this practice.
In spite of the Supreme Court setting aside talaq-e-biddat, and the assurance
of AIMPLB, there have been reports of divorce by way of talaq-e-biddat from
different parts of the country. It is seen that setting aside talaq-e-biddat by
the Supreme Court has not worked as any deterrent in bringing down the number of
divorces by this practice among certain Muslims. It is, therefore, felt that
there is a need for State action to give effect to the order of the Supreme
Court and to redress the grievances of victims of illegal divorce.
In order to prevent the continued harassment being meted out to the hapless
married Muslim women due to talaq-e-biddat, urgent suitable legislation is
necessary to give some relief to them. The Bill proposes to declare
pronouncement of talaq-e-biddat by Muslim husbands void and illegal in view of
the Supreme Court verdict. Further, the illegal act of pronouncing
talaq-e-biddat shall be a punishable offence. This is essential to prevent this
form of divorce, wherein the wife does not have any say in severing the marital
relationship. It is also proposed to provide for matters such as subsistence
allowance from the husband for the livelihood and daily supporting needs of the
wife, in the event of husband pronouncing talaq-e-biddat, and, also of the
dependent children. The wife would also be entitled to custody of minor
The legislation would help in ensuring the larger Constitutional goals of
gender justice and gender equality of married Muslim women and help subserve
their fundamental rights of non-discrimination and empowerment.
The Centre’s proposal to make instant triple talaq an offence punishable with
three-year imprisonment and a fine is an unnecessary attempt to convert a civil
wrong into a criminal act. By a three-two majority, the Supreme Court has
already declared, and correctly, that the practice of talaq-e-biddat, or instant
divorce of a Muslim woman by uttering the word ‘talaq’ thrice, is illegal and
unenforceable. While two judges in the majority said the practice was arbitrary
and, therefore, unconstitutional, the third judge ruled that it was illegal
because it was contrary to Islamic tenets. Its consequence is that the husband’s
marital obligations remain, regardless of his intention in pronouncing it.
Proposed Muslim Women (Protection of Rights on Marriage) Bill, 2017, have
provisions for maintenance or subsistence allowance to the wife and children in
the event of triple talaq being pronounced. It seeks to preserve the woman’s
entitlement to custody of her children. While these are welcome and necessary
features of a law aimed to protect the rights of Muslim women against arbitrary
divorce, it hardly requires iteration that the civil character of these aspects
of marital law must be preserved.
Instant triple talaq is viewed as sinful and improper by a large section of
the community itself. Therefore, there can be no dispute about the need to
protect Muslim women against the practice. But it is also well established that
criminalising something does not have any deterrent effect on its practice.
Also, the fine amount under consideration could as well be awarded as
maintenance or subsistence allowance. Existing laws, under Section 498A of the
Indian Penal Code or provisions of the Protection of Women from Domestic
Violence Act, 2005, already allow the prosecution of a husband for inflicting
physical or mental cruelty, emotional and economic abuse, and for deprivation of
financial resources. Regardless of whether instant talaq would fall under any of
these forms of cruelty or domestic violence, criminalising it risks defeating
the objective of preserving the husband’s legal obligations, and the payment of
Important provisions in bill include:
- Any pronouncement of talaq by a person upon his wife, by words, either spoken
or written or in electronic form or in any other manner whatsoever, shall be
void and illegal.
- Whoever pronounces talaq referred to in section 3 upon his wife shall be
punished with imprisonment for a term which may extend to three years and fine.
- Without prejudice to the generality of the provisions contained in any other
law for the time being in force, a married Muslim woman upon whom talaq is
pronounced, shall be entitled to receive from her husband such amount of
subsistence allowance for her and dependent children as may be determined by the
- Notwithstanding anything contained in any other law for the time being in
force, a married Muslim woman shall be entitled to custody of her minor children
in the event of pronouncement of talaq by her husband, in such manner as may be
determined by the Magistrate.
- Notwithstanding anything contained in the Code of Criminal Procedure, 1973,
an offence punishable under this Act shall be cognizable and non-bailable within
the meaning of the said Code. Definitions. 21 of 2000.
- Talaq to be void and illegal. Punishment for pronouncing talaq. Custody of
minor children. Subsistence allowance. Offences to be cognizable and non