Modi Government’s fifth attempt to criminalise ‘Triple Talaq’ may not pass judicial scrutiny

The Modi government seems desperate to have the Triple Talaq Bill passed by Parliament.

It first introduced the Bill in Lok Sabha in December, 2017. Having failed to have the bill passed in the Rajya Sabha where it lacked the numbers, it brought in an ordinance in September 2018 to ban the practice. Before this ordinance could expire, it brought in another ‘improved’ Triple Talaq Bill in the Lok Sabha in December 2018 and got it cleared there. Then having again failed to carry it through in the Rajya Sabha, it again brought in an ordinance in January 2019 to replace the defeated Bill.

Now barely two days after taking oath, the Modi-2 government has again introduced the Triple Talaq Bill on June 20, 2019 in the new Lok Sabha. This is the Modi government’s fifth attempt to push the Bill through Parliament in the last one and half year. This is the first legislation to be tabled in the Lower House by the Modi government in its second term. Such desperation and such concern for the welfare of Muslim women!

During the two journeys of the Bill through the two Houses of Parliament, the government refused to see reason in the arguments put forward by the opposition MPs. Intoxicated by its majority, the Modi government bulldozed the Bill twice through the Lok Sabha. From the demeanour of Union Law Minister Mr Ravi Shankar Prasad, it appeared the Modi government would do the same thing again - push through the legislation using its brute majority. And it did. Before I could complete this write-up, the Lok Sabha cleared the Bill a third time with 184 MPs voting in in its favour and 74 against it.

If the Bill becomes a law as it might if some more opposition MPs in the Rajya Sabha defect and join the BJP for the sake of their ‘conscience’, it would be a bad law indeed. It would be the first law in any civilised country which seeks prison term for a husband pronouncing a divorce on his wife.

The government’s insistence on retaining the criminality clause in the Bill is untenable and would be struck down by the courts during judicial review. The imprisonment of the husband would also defeat the very object that is sought to be achieved by the Bill i.e. the financial security of the wife and children.

The government’s dilemma is that if it removes the criminality clause from the Bill, there would be nothing left in it. The Triple Talaq Bill is a very ill thought out legislation. In fact, the Bill contains just two pronouncements, namely that the utterance of triple talaq by a husband would be void and illegal, and that the husband uttering such words would attract a prison term of up to three years and paradoxically also provide subsistence to the divorced wife. Thus the financial security of the wife is endangered. It may be recalled that while enacting the The Muslim Women (Protection of Rights on Divorce) Act 1986, the Rajiv Gandhi government had ensured that the magistrate would order the State Waqf Board to pay the maintenance to the wife if she was unable to sustain herself.

To me, the Triple Talaq Bill seems to be an unnecessary legislation. The Modi government has made much ado about nothing. The incidence of triple talaq are far fewer than have been made out. The government’s claim that there had been 100 cases of Triple Talaq after the Supreme Court judgment of August 2017 is unreliable. Several Muslim bodies have claimed that there had been a few cases. It is possible these were also resolved by the community. Contrary to popular perception, divorce, let alone instant divorce, is considered abhorrent in Islam. BJP leaders who run this government have no idea of Muslim customs and feel no empathy for the community. Hence their reluctance to see logic in the opposition argument that imprisonment of the husband would rather harm the wife instead of helping her.

The issue could have been resolved by engaging with the Muslim community without any legislation. The government did not do this. Already there were moves afoot in the community to address the issue. There were suggestions like putting a condition in the nikahnama against triple talaq, making for heavy penalty in case a husband pronounced triple talaq, considering the three utterances as one etc. The government ignored these moves by the community. Desperate to play Big Brother, the Modi government wants to legislate on a community of 22 crores whom it does not understand.