By Seema Khan
Triple Talaq is the most debated and discussed topic on Indian news Channels and media ever since the bill was introduced in the Indian parliament.
The bill was approved by the cabinet on 15th December 2017.
This bill was prepared under the guidance of Home Minister Mr. Rajnath Singh, which made Talaq-e-Bidat, or 'triple-talaq', meaning the word ‘Talaq’ repeated thrice simultaneously, a legal offence and an unlawful of act, punishable with three years jail term, and non bailable.
The Supreme Court has also declared it as an unlawful act.
This has become a hot and sensitive topic in Indian media, not because it is something unique or new, but more because it’s being used as a political stunt to win votes.
Out of the 55 Muslims Countries around the world, 22 have already banned Talaq-e-Biddet. They have abolished it either explicitly or implicitly.
The importance of this bill is that it is used as a shield by the BJP government at the centre, whenever it gets into trouble for its scams such as Rafale, or absurd decisions such as failures of demonetisation , falling Indian rupee, rising petrol prices, or problems created by the implementation of unplanned GST.
To divert the attention of the people; the specific news channels and the newspapers, controlled by the government, start debating this hot topic. They seem to have found it to be a very effective method for diverting the attention of the people from the core issues, and the failure of the government to tackle them.
There, however, seem to be a problem with ‘triple talaq’ bill and the flaws in its drafting, whereas a civil issue has been made a criminal issue.
The main objective of the bill, it appears, is to create the way for a uniform civil code by diluting personal laws, and to use it as a tool for putting Muslim men in jail.
Another question is whether banning of triple talaq is an encroachment to the fundamental right to religion, that has been granted by the constitution of India.
Giving Talaq is part of a fundamental right according to religious freedom granted by the constitution. So the question; is it a violation of fundamental right, or encroachment of right of a women provided in Sharia.
The main flaw of the bill is that when marriage is a civil contract in Islam, why should there be a criminal punishment for breaking it? Shouldn’t the criminal law be used as a last resort?
Next question being asked relates to the data on which this law is being based on? Divorce ratio among Indian Muslims women is 0.41%, and among Hindus 0.47%. 2011 census says divorce rate among Muslims and Hindus is same.
Consultation process for drafting of this bill is also questionable. It has been drafted without consulting Muslim parties or Muslim women organisation, and without any provision for anticipatory bail. No expert Muslim representatives like Muktar Abbas Naqvi or M.J Akbar were present when the bill was being drafted.
According to Islamic laws marriage is a contract between 2 adults. If the marriage is to be annulled the man has to say Talaq thrice and the marriage is over. If a woman wants divorce she may ask for “Khula”, in which case, the “mehar” or alomny is not required to be paid by the husband.
One of the overlooked flaws of the bill is how can criminal punishment be given in a civil contract.
According to Professor Faizan Mustafa, who has been writing and debating this issue, criminal law should be used as last resort. When the marriage as a civil contract cannot work, divorce becomes essential. Punishing it with a criminal law is unleashing a tyranny of law in India. Every punishment that does not arise from absolute necessity is tyrannical and this bill reflects that.
Without interfering with Islamic law or Sharia law, but as a student of constitutional and criminal law, the bill fails on the fundamental rule of criminal law. It’s excessive as it will be using criminal law in civil matters, says Mustafa.
What the makers of the bill have failed to notice is that there are different schools of thoughts and sects among Muslims. They follow different ways. How can penal provision be implanted, questions Mustafa?
According to Shia Personal law, verbal there simultaneous talaq is wrong. For Shia Muslims, there is no requirement for any witness in Nikah, unlike sunni Muslim Nikah, but there has to be witness during talaq.
According to the Muslim scripture, the Quran, there is an emphasis on 90 days period, for discussions, negotiations and mediations from both husband and wife’s sides to resolve the issue. There are many other verses in Quran calling for reconciliation between husband and wife. Quran also puts the onus of carrying out the procedure on the husband.
When it comes to Shia Muslims; Triple Talaq is not a valid practice across the world.
There has been instances when triple Talaq was communicated via SMS, Whatsapp or postcard etc. This, however, is a violation of Quranic rights and tenets.
In almost all the Muslim countries, however; notice is to be given to arbitration council. In Arab countries they have to go through prescribed procedure or else it is punishable.
According to Professor Faizan Mustafa, giving the example of Arab Countries is not very good because there criminal legal system is very regressive.
Going back to the question; whether the banning of triple talaq is encroaching the fundamental right to religion that has been guaranteed by the constitution of India. Giving talaq is a fundamental right according to religion. Is it a violation of fundamental right of a woman?
The Supreme Court bench, studying this case had 5 Judges from all religions, Justice Kurian Joseph a Christian, Chief Justice Jagdish Singh Khehar a Sikh, Justice Rohinton Fali Nariman a Zoroastrain, Justice Uday Umesh Lalit a Hindu and Justice Abdul Nazeem a Muslim. The bench declared triple Talaq as void and illegal by a 2-3 majority judgement. Three of the five Judges said it is unconstitutional and would be banned for 6 months till government brought a new legislation. The Majority opinion held that ‘triple talaq’ is not integralto religious practice and a violation constitutional morally.
There of the five judges held that triple talaq violates the tenets of Quran. Their violation of the tenets assessment, however, need to be reviewed:-
- Right to equally: - Article 14 permissible practice but it is retrograde and unworthy, does not consider women equal.
- Since triple talaq is instant it is irrevocable and marital ties get broken.
- It is violative of article 14, the right to equally.
The main argument against the bill is that when the Supreme Court has declared triple talaq illegal and void then what is the punishment for?
Congress opposed it with the argument that if the husband is sent to jail who will support the children, and there will be no scope for reconciliation with husband in jail.
There three issues that the congress party highlighted were; explain how should Muslim men divorce there wife, and who is the blood relation of the women who can file the complaint, and if husband is sent to jail, who will provide maintenance and expenses of the children.
Except BJP and Akali Dal, all the political parties were opposed to the bill. Congress along with eighteen other parties opposed the bill, hence it could not be passed in Rajya Sabha.
All India, Muslim personal law board, which is opposing the bill, say it is an encroachment of the rights of Muslim women and against the Sharia. There is controversy on whether it will be misused or not and whom does the burden of proof lie.
The AIMPLB says there is a provision for personal law for all religious communities and Muslim personal law board is there to take care of it. This is a non-governmental organisation to educate and to protest these laws. The board is of the opinion that divorce should be mutual and marriage and inheritance should be with mutual consent.
Professor Faizan Mustafa also presents the same argument. According to him, if triple talaq is invalid as per supreme court verdict, then what is the punishment for? There is no crime that can be committed. Then why is this criminal law? This is a text book case of over criminalisation, says Professor Mustafa .
Mr. Asaduddin Owasi of AMIMS says there are enough laws in Indian Penal code to protect women. Section 498 of 14 IPC section 20, 24 domestic violence act, 125 CRPC Muslim women marriage act of 1996 are sufficient to protect women.
Another flaw of the bill is that it violates article 14 of IPC, because if a Muslim commits the offence he is given 3 years imprisonment and if a non Muslim commits the same crime he is given one year imprisonment. The question being asked if there is a conspiracy here, and this law is being being created to legally persecute the followers of a specific religion.
Another valid question is; what is the guarantee that this law will curb the evil of divorce? Have the laws for rape after Nirbhaya incident had any impact on the number of rapes? Rapes are taking place at the same rate, if not faster. Domestic violence act did not serve as a deterrent for domestic violence. Sharda act against child marriage was made long back but child marriage is rampant in India.
An important observation made by Justice Kurian may have been ignored completely by the government, the media and the public. Justice Kurian, suggested “an alternative that a Muslim bride, at the time of the wedding, should be allowed to lay down a condition in the nikah nama that she would not be subjected to instant talaq in case the marriage hits a rough patch. This option is part of Islamic Sharia, and is available to the girl getting married, though not a common practice in the subcontinent, mainly due to a lack of knowledge.
If the Modi government is so much interested in solving the problem of Muslim women, it should solve their problem of education, health and unemployment. By passing this bill Modi government has done more disservice to Muslim women because no man would like to marry a Muslim woman after returning from jail.
