Activists, civil society tear into Triple Talaq Bill

The Lok Sabha on Thursday, July 26, passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019 which criminalises the so-called ‘instant triple talaq’, or 'talaq-e-biddat', among Muslims and seeks to penalise the husband with a jail term of three years.

The Bill, put by the ruling BJP government in Parliament for the third time in as many years, was cleared after a prolonged debate in the Lower House. It witnessed a walk-out by the Congress and the All India Trinamool Congress and even BJP-ally Nitish Kumar’s Janata Dal (United) [JD(U)] which maintained that such bills create a “lack of trust in the society”.

Tabling the Bill, Union Law Minister Ravi Shankar Prasad said, “The law is not about religion or garnering votes; it is for women empowerment.”

Earlier attempts

The BJP tabled the Bill in Parliament twice earlier, and it was passed by the Lok Sabha on December 28, 2017, and then the following year on December 27, 2018. Since it couldn’t pass muster in the Rajya Sabha, the BJP government also issued an ordinance twice: on September 19, 2018, and then on January 12, 2019.

Criticism of the Bill

The BJP government’s continued insistence on promulgating the Act has come under serious questioning by activists and civil society.

“The Bill is prejudiced and biased. Triple talaq may not be the right way for a man to divorce his wife, but it makes absolutely no sense to make it a criminal offence. If the husband is imprisoned, who will pay for the wife’s maintenance? Also, it leaves no room for any reconciliation process to try save the marriage,” says Deepika Narayan Bhardwaj, a noted social activist whose documentary, Martyrs of Marriage, highlighted how misuse of IPC sections like 498A (Dowry Harassment) led to acute harassment of the affected men, sometimes even driving them to suicide.

“Besides, its very objective - to protect the rights of married Muslim women and prohibit divorce by pronouncing 'talaq' by their husband - has already been achieved by the Supreme Court judgment in August, 2017, which held that the practice of 'talaq-e-biddat' is unconstitutional. Thus, an act that has no legal consequences being made a cognisable and non-bailable criminal offence is arbitrary,” she adds.

“If there is violence within the marriage in addition to the pronouncement of triple talaq, the woman could use the existing provisions of the Protection of Women from Domestic Violence Act, 2005 and Section 498A of the Indian Penal Code. Section 125 of the Code of Criminal Procedure also provides for maintenance for the aggrieved woman,” she says.

“The pronouncement of triple talaq having no legal consequences on the marriage means that such a proclamation by a Muslim man is essentially a desertion of the wife. In any of the personal laws, the desertion of wife by a man is not a criminal offence. Therefore, while the Bill aims to criminalise the pronouncement of talaq, in effect, it is only criminalising the act of desertion of a Muslim wife by her husband,” Kavita Krishnan, Secretary, All India Progressive Women's Association (AIPWA), told National Herald.

“Criminalising desertion by Muslim men, which constitutes only a civil offence for men of all other religions, is discriminatory under the Constitution,” she added.

Speaking to National Herald, senior advocate in Supreme Court Sanjay Hegde opined that since the Supreme Court had already dealt with the issue in question, the Bill simply aimed to give an additional weapon to Muslim women, as well their lawyers, who may not necessarily be Muslims.

“Tomorrow, the government may bring a Bill saying it is a criminal offence to utter the words ‘vegetable biryani’ thrice,” he added in a lighter vein.

Other aspects of the Bill being questioned:

• Branding the husband a criminal may lead to unwanted separation between the couple, against the wishes of the wife in many cases
• Since Muslim marriage is a civil contract between two adults, the procedures to be followed on its breakdown should also be of civil nature
• The Bill allows for the aggrieved woman as well as anyone related to her by blood or marriage to be the complainant. There is no provision for a relative to seek the consent of an aggrieved woman before filing a complaint. The problem becomes particularly acute in the case of inter-religious marriages of Muslim men with a woman of another religion.
• The terms of imprisonment up to three years is arbitrary and excessive. Even serious crimes like causing death by rash or negligent act (IPC Sec 304A), rioting (IPC Sec 147), injuring or defiling place of worship with intent to insult the religion of any class (IPC Sec 295) are punishable by two years in jail or fine or both. Thus, it is violative of Article 14 of the Constitution.