Hyderabad: The triple talaq Bill, which criminalises instant divorce in the Muslim community , was passed by the Rajya Sabha on Tuesday, with 99 members voting in favour and 84 against it. It was passed by the Lok Sabha last week.
What is Triple Talaq?
There are three forms of talaq (divorce): Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable. Biddat — pronouncing divorce in one go by the husband — is irrevocable.
Biddat is considered ‘sinful,’ but permissible in Islamic law.
The All India Muslim Personal Law Board (AIMPLB) holds that for the Hanafis, who make up more than 90% Sunnis in India, triple talaq is a matter of faith followed for 1,400 years.
How did it come about?
The Supreme Court questioned whether Muslim personal law practices of marriage and divorce reduce women to mere chattels on 16, October 2015. In a rare move, it registered a suo motu public interest litigation (PIL) petition titled ‘In Re: Muslim Women’s Quest for Equality’ to examine whether arbitrary divorce, polygamy and Nikah Halala (where a Muslim divorcee marries a man and divorces him to get re-married to her former husband) violate women’s dignity.
The court rued missing the opportunity to address the question of gender inequality in both the Shah Bano and Danial Latifi cases. In the Shah Bano case, the court merely goaded the government to frame the Uniform Civil Code. In the Latifi case, it upheld the right of Muslim women to maintenance until Re-Marriage.
Many Muslim women and organisations backed the court’s initiative. However, a Constitution Bench decided to confine itself to examining triple talaq and not polygamy and Nikah Halala.
Why does it matter?
This has been an issue of concern for over 65 years for Muslim women, who comprise approximately 8% of the population as per the 2011 census. “Muslim women want to have a life equal to that of another woman, say a Christian or Hindu wife,” the government argued in court.
The Centre claimed that instant talaq is not fundamental to Islam. It promised to bring in new divorce law for Muslim men in case the court strikes down the three forms of talaq.
The government argued that Muslim marriage and divorce is codified under Section 2 of the Shariat Act of 1937 and came within the ambit of ‘law’ under Article 13 of the Constitution. Hence, they should abide by the principles of dignity and non-discrimination.
The AIMPLB countered that triple talaq is a matter of faith like the Hindu belief that Ayodhya is Ram’s birthplace.
The courts and the government should leave reforming of the law to the community, it said, quoting the Bombay High Court’s unchallenged decision in the Narasu Appa Mali case that personal law should not be tinkered with. Where will Muslim men go for divorce if you (the court) strike down talaq and Parliament refuses to pass a new law, the AIMPLB asked.
What next?
Justice Kurian Joseph, a judge on the Constitution Bench, ignited a spark by suggesting an alternative that a Muslim bride, at the time of the wedding, should be allowed to lay down a condition in the 'Nikahnama' that she would not be subjected to instant talaq in case the marriage hits a rough patch.
Days after the court reserved the case for judgment, the AIMPLB filed an affidavit saying that it would issue a public advisory to qazis to advise bridegrooms against instant talaq and also add a condition in the 'Nikahnama' to exclude instant talaq.
The AIMPLB even threatened the social boycott of Muslim men who resort to instant talaq.
Starting of the controversy
A campaign to end the practice of unilateral instant "triple talaq" began in India several decades ago. But it picked up steam when a 35-year-old mother-of-two approached the Supreme Court seeking justice.
In 2016, Shayara Bano filed a petition stating that she received a divorce letter (Talaqnama) from her husband when she visited her parents home for medical treatment. Her attempts to meet her husband and children were unsuccessful.
SHAYARA BANO CONTROVERSY:
Why this fight?
Shayara Bano was the original petitioner in the case after she approached the court in 2016 demanding that the Talaq-e-Biddat pronounced by her husband be declared as void.
She also contended that such unilateral, abrupt and irrevocable form of divorce be declared unconstitutional, arguing that the practice of triple talaq violated the fundamental rights of Muslim women.
“Since my student life, I didn’t like the anti-women social traditions like triple talaq and Halala. But when it happened to me... it [the dislike] grew. Normally, these things do not happen, but when it hits you, you realize how bad this practice really is,” said Bano.
What happened to her?
Her battle against triple talaq was spurred by her own experience. In April 2001, she was married to the Allahabad-based property dealer Rizwan Ahmed, who allegedly demanded additional dowry and a car from her parents.
She endured domestic violence and physical torture from her husband and in-laws. As per her claim, she was often beaten and kept hungry in a closed room for days.
On October 2015, her husband sent her a divorce note claiming instant Triple Talaq by speed post. The custody of her two children was kept by her husband. When something “so wrong” happened, she thought that there must be a law to prevent this.
Did she face challenges?
It was not easy for Bano and the other women's to garner support from the community as they were seen challenging the male dominance of Shariat laws.
It was suspected by a section of anti-BJP groups and male Muslim intelligentsia of playing into the saffron party’s strategy to communalise the discourse ahead of the 2017 Assembly elections in Uttar Pradesh.
She faced several challenges during the course of her fight. The biggest came in the form of mental harassment. A member of the AIMPLB asked her to withdraw her case, stating that she was going against Islam.
Did she think of quitting?
Though she felt discouraged, the thought of giving up the fight didn’t occur to her even once. She was thankful to the women activists who supported the cause, her lawyers and the media for highlighting her experience.
However, the biggest source of support came from her family, especially her father and brother.
Her legal battle received more coverage after other victims of triple talaq also approached the court, though she was the first petitioner.
What does it mean to women?
Describing the judgement as historic, women activists believed it as step forward in the empowerment of Muslim women in India.
Shayara said, "Though the ruling will be beneficial to Muslim women and help them avail maintenance, the real change will come only when a law is enacted making arbitrary talaq illegal."
She asserted on the fact that the fight is against the social customs that give men the power to abandon women on a whim, sometimes through a flimsy text message or a phone call.
Women who received triple talaq lived worse than dogs and without maintenance, she points out.
She has appealed to the BJP government not to take undue credit for the decision or politicise it. “It was a social fight, not a political one. It should not be made into a political agenda, ”Bano insisted.
What is the instant triple talaq Bill?
The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was earlier introduced in the Lok Sabha. This bill, which makes instant triple talaq or talaq-e-biddat a punishable offence, follows the Supreme Court judgment on August 22, 2017, in the case of Shayara Bano vs. Union of India.
In a majority 3:2 judgment the apex court set aside instant talaq as a "manifestly arbitrary" practice.
It also said, "Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place."
What does the Bill say?
It makes the pronouncement of talaq-e-biddat "void and illegal." According to clause 3 of the Bill, "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."
What is the proposed punitive measure?
A man who pronounces talaq to his wife will be punished with a jail term and a fine. Clause 4 of the bill states, "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."
This Bill also makes the pronouncement of talaq-e-biddat a non-bailable offence. Clause 7 says, "An offence punishable under this Act shall be cognizable and non-bailable within the meaning of the Code." (The Code of Criminal Procedure, 1973)
How does this protect Muslim women's rights?
The woman upon whom talaq is pronounced will have to receive an allowance from her husband, and she retains custody of her children.
Law Minister Ravi Shankar Prasad, in the statement of objects and reasons attached to the Bill says that this legislation will, "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."
Offence and penalty: The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine.
The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.
The Bill provides that the Magistrate may grant bail to the accused.
The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the allowance will be determined by the Magistrate.
Clauses 5 and 6 of the Bill say, "A married Muslim woman upon whom talaq is pronounced, shall be entitled to receive from her husband amount of subsistence allowance for her and dependent children," and "shall be entitled custody of her minor children in the event of pronouncement of talaq by her husband."
Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.
Also Read: Triple Talaq Bill: Chronology of events
