TRIPLE TALAQ BILL : Civil Services Mentor Magazine: FEBRUARY - 2018


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 children.

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.

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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 maintenance.

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 Magistrate.
  • 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 bailable.

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