• The Ordinance to criminalise the practise of “triple talaq”- Muslim Women (Protection of Rights on Marriage) Ordinance 2018- has been promulgated by the President of India.
• The Union Cabinet on Wednesday passed the Ordinance to amend provisions of the Triple Talaq Bill. President Ram Nath Kovind signed the Ordinance later the same day.

Background:

• The ordinance move comes after the Triple Talaq bill(‘Muslim Women Protection of Rights on Marriage Bill) got blocked in the Rajya Sabha in the last monsoon session, though the Lok Sabha had cleared it in December 2017.
• There was an “overpowering urgency” to bring the measure as even though the Muslim Women (Protection of Rights on Marriage) Bill, 2017 is pending in the Rajya Sabha and despite the Supreme Court has observed that the practice of Triple Talaq is unconstitutional, the practice still carries on. Since January 2017 till the current month, 430 triple talaq cases have been reported, 229 before the Supreme Court verdict and 201 after that.

Ordinance Vs Bill

The government has made three crucial amendments in the original bill

• The offence will be cognisable only when a complaint is filed by the wife, a relative by blood or by marriage.
• It was compoundable at the instance of wife on appropriate terms and conditions.
• Magistrate will have powers to give bail after hearing the wife because this was a private dispute between husband and wife.

Provisions:

• The Ordinance is applicable to the whole of India but it is not extended to the State of Jammu and Kashmir
• “Talaq” for the purposes of the Ordinance means as “talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband“
• According to the Ordinance, any pronouncement of ‘talaq’ by a Muslim husband to his wife in any manner, spoken or written, shall be void and illegal.
• Any Muslim husband who communicates the ‘talaq’ orally or in writing may face a punishment up to three years in jail. The punishment may be also extended.
• The offence will be cognizable only if the complaint is lodged by the victim wife or her close blood relatives. Also, the offence will be compoundable at the instance of the wife on such terms and conditions as deemed fit by the Magistrate. The offence is also bailable, and Magistrate can grant bail, but only after hearing the wife.
• The Ordinance also states that despite the presence of general laws in force, if a Muslim man pronounces ‘talaq’ to his wife, then the woman and her children are entitled to receive an allowance for subsistence. Such amount can be determined by a Judicial Magistrate of the First Class.
• The Ordinance also states that a Muslim woman is entitled to the custody of her minor children even if her husband has pronounced ‘talaq’ to her.
• The offence is pronouncing talaq is cognizable if the Muslim woman on whom it is pronounced, communicates the information to a police officer.
• The offence is also compoundable, if the Muslim woman insists for the same and the Magistrates allows certain terms and conditions which he may determine.
• A person accused of this offence cannot be granted bail unless an application is filed by the accused after a hearing in the presence of the Muslim woman (on whom talaq is pronounced) is conducted and the Magistrate is satisfied about the reasonable grounds for granting bail.

Merit:

• The proposed law was about “gender justice and gender equity” among Muslim women, Muslim women empowerment would strengthen the social fabric and pave way for development of  familial relations.
• The fact that triple talaq has either been banned or has been regulated in 22 Islamic countries. So the proposed ordinance ins in aligned with global best practise.
• The practice was against Article 14 of the Constitution, which guarantees the right to equality, the Supreme Court has ruled. The chauvinistic and paternalistic practice of husband , as declared by the Supreme court, shall ultra vires not only infringe the right to equality (Article 14) but also is gender discriminatory.

Against :

• The ordinance routeto enact a diluted version of its law making instant triple talaq a criminal offence is a sign of undue impatience. A marital wrong, essentially a civil matter, should lead to prosecutions and jail terms. Many people argued that Abolishing Triple Talaq is not correct idea since it is diversity in change, Interference in religion of person and the power to decide by themselves.
• This is a matter that required deliberation, especially after serious objections were raised to some provisions of the Bill passed by the Lok Sabha.The mere lack of consensus in the House is not a good enough reason to promulgate an ordinance.
• It still leave open the possibility of the marriage continuing by allowing bail and settlement. When the law declares instant triple talaq to be invalid, it only means the marriage continues to subsist, and it is somewhat self-contradictory for a law to both allow a marriage to continue and propose a jail term for the offending husband.
• It is far better to treat triple talaq as a form of domestic violence, under the Domestic Violence Act.
• Even though the ordinance grants Muslim wives the right to an allowance from their husbands in cases of triple talaq, but if  a man imprisoned for three years by the provision of this ordinance, he would not be in a position to earn and provide his wife with the allowance.
• How the law against triple talaq could be implemented in cases where the instantaneous divorce is pronounced orally. If the man denies having pronounced talaq, what evidence would the woman have to prove her case? “How will trials be conducted
• The Ordinance is discriminatory as it prescribes a three-year prison term for a Muslim man, if convicted, while for people of other faiths, the period of conviction per other laws is much lesser. It will amount to targeting Muslim men in the name of Muslim women.
• As legal course for divorce in India is time consuming and expenses, In such instances, he may resort to illegal, criminal ways of murdering or burning her alive.
• Securing separation through court entails that the weaknesses of the opposite party be brought into public domain. Some moral failings are considered more scandalous for women in our society.
• Securing separation through courts takes a long time, this further deters the re-marriage prospects of the parties.

Need:

• Indian Constitution has guaranteed equality and freedom from discrimination based on gender or religion, but still there are various practices which are based on heartless conservative culture.
• Many social practices that reflect social inequalities hide behind the cover of religion. since the interpreters of “religion” have been mostly men which make female victim to their part.
• As we know a large part of Muslim Personal Law is still unmodified and most of the legal decision pronounces by the courts based on the norms mentioned in Quran and hadith
• The central debate on interpretation of Muslim personal laws has both positive as well as negative aspects. Some Muslim personal laws has given various rights to Muslim women such as choice in marriage, inheritance etc. Whereas, some of the practices which is against the spirit of Indian Constitution.
• There are lots of criticism about All-India Muslim Personal Law board which interpret personal law. Many time this board rejected the proposal to change the Muslim personal law as they believe it will infringe the basic principles of Islam. Further, there are many male members domination in that particular board. Whereas
• Among Muslims, it seems the triple talaq provision has pushed up the share of female divorcees to 5 per 100 compared to 2-3 per thousand for Hindus, Sikhs and Jains according to freshly released Census 2011 data.
• It present practise of Gender Disparities and Inequality in muslim community after talaq, Women are more likely to live in poverty and have low level of standard of living. It is also defamatory and humiliating for a woman to re-marry same man after talaq.

Triple Talaq:

• It is an instant divorce custom being practiced among the Muslim fraternity, conceding the balance of ending the matrimonial alliance, in the favour of their male counterparts, i.e., husbands, by simply pronouncing the word “TALAAQ” three times.
• There are three forms of talaq (divorce) in Islam: Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable but Biddat is irrevocable.
• Triple talaq is a practice mainly prevalent among India’s Muslim community following the Hanafi Islamic school of law.
• Under the practice, a Muslim man can divorce his wife by simply uttering “talaq” three times but women cannot pronounce triple talaq and are required to move a court for getting divorce under the Sharia Act, 1937.
• Triple talaq divorce is banned by many Islamic countries, including Pakistan, Bangladesh and Indonesia.
• In case of Triple Talaq issue, neither does the Quran sanction this form of divorce nor was it legally held permissible by the Constitution.

Other countries:

• Needless to say talaq-i-bidat has devastated the lives of many women and children. Deprived of any opportunity for settlement, this mode of divorce has been subject to criticism in several Muslim countries and have brought about reform through codification.
• Countries like Turkey, Tunisia, Syria, Egypt, Morocco, Iran, Iraq, Malaysia, Indonesia and Pakistan have either reformed the law completely or brought about legally stringent preventive measures in this area.
• If Muslim countries can bring about reform in family laws India must follow suit. In the words of Justice Hidayatullah: “If the lead is coming from Muslim countries, it is hoped that in the course of time the same measures will be applied in India also.”

Triple Talaq and the Indian Constitution:

• Article 25 of the Constitution guarantees religious freedom as Freedom of Practice and Propagation of Religion.
• Like all other Fundamental Rights, it is subject to restrictions and does not protect religious practices that can negatively affect the welfare of citizens.
• Hence, Article 25 is overridden by Article 14, which guarantees the Right to Equalit y as triple talaq denies a Muslim woman’s equality before the law.
• Article 25 is also subject to Article 15 (1) which states that the State “shall not discriminate against any citizen on grounds only of religion, race, caste, sex…” Since triple talaq does not work in the favour of women, it violates Article 15 (1) of the Constitution.
• However, section 2 of the Muslim Personal Law (Shariat) Application Act of 1937 recognises triple talaq as a statutory right, bringing it under the ambit of Article 13 of the Constitution.
• Article 13 defines ‘law’ and says that all laws, framed before or after the Constitution, shall not be violative of the fundamental rights.

Past supreme court Rulings:

• In the Shah Bano Case (1985), the SC gave 62-year-old Shah Bano the right to alimony from her husband by invoking a provision in the Criminal Procedure Code, 1973, a legislation for compensation that is to be given by the husband as maintenance to his divorced wife.
• However, The Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed was the then Central government which was seen as an attempt to dilute the effect of Shah Bano Case judgement.
• In 2001, Danial Latifi & Anr v. Union of India case, SC reiterated the validity of the Shah Bano case judgement upholding Muslim women’s rights.
• The Supreme Court in June 2016 decided to examine if Islamic laws governing marriage and inheritance violated the fundamental rights of women and take a call on how far it can intervene to modify the existing laws.
• Recent Supreme Court Verdict On 22nd August 2017, a five-judge bench of the Supreme Court in a split verdict ruled that the practice of instant triple talaq in the Muslim community is unconstitutional. The bench set aside the practice by a majority of 3:2.

Key Points of the SC Ruling:

• Three judges of the bench said that triple talaq must be struck down as it goes against the constitution and is unacceptable.
• They said that the Muslim Personal Law (Shariat) Application Act of 1937 recognised and enforced triple talaq, therefore, it should not be considered a personal law but a statutory law. Hence it comes under the ambit of Article 13(1) of the constitution.
• Article 13 mandates that any law, framed before or after the Constitution, should not be violative of the fundamental rights.
• Triple Talaq is manifestly arbitrary and was violative of Article 14 (the Right to Equality) and did not enjoy the protection of Article 25(1) of the Constitution.

Way forward:

• In reality rights of Muslim women are being subverted in the name of rights guaranteed to minorities by the Constitution. The issue is not whether a religious community has the right to live by its holy laws but whether any community has the right to live by rules that subvert the rights guaranteed to every citizen in the Constitution.
• The idea is not to essentialise Islam or any other faith but to remove the orthodoxy of all religions and cultures which are tilted against women, girls and often children.
• Policies on women’s empowerment exist at the national, state, and local (Panchayats) levels in many sectors, including health, education, economic opportunities, gender-based violence, and political participation. However, there are significant gaps between policy advancements and actual practice at the community level.
• So the main effort of the state and all the law-making bodies should be to fill this gap between ideology and practice of law making. They should try to abandon all those laws (like Triple Talaq, polygamy etc.) which are against constitutional ethos.
• Codification of the Muslim Personal Law: The process of codification of Muslim Law is an imperative and now must be seriously undertaken by a group of legal experts, liberal ulema and scholars in the field. Gender-just laws must be the common denominator. Alongside Muslim women, Muslim men’s organizations must push for change.
• Role of the State: Parliament should step in with measures not for a Hindu code or a Muslim Code but a secular code, drawn from basic principles of personal freedom, human rights and justice in the country. Strict measures must be taken against if the Muslim Personal Law (Shariat) Application Act violates democratic rights guaranteed to the individuals by the Constitution.
• Encouraging the Idea of A Uniform Civil Code: It will help the cause of national integration by removing the contradictions based on ideologies and traditions. It will also help in eradicating many evils, unjust and irrational practices prevalent across the communities, and will also strengthen the unity and integrity of the country. These norms have to be observed in all human transactions in any civilized society.
• Introduction of Gender Just Personal Laws: Since most personal laws reflect the hierarchical notions of society and thereby accord secondary status to women. So what we need are gender just personal laws. The gender just code in turn has to be the same for all the communities and hence, it will be uniform. Gender justice has to be the basis of uniformity; blind uniformity may turn out to be most unjust for women.
• Prioritisation of Gender Equality: Priority must be given to the equality between men and women in terms of their fundamental rights over conservative interpretations of religious scholars. This can be done by saying a big no to triple talaq and polygamy. The personal law question needs to be understood in the context of patriarchy and laws that accord secondary status to women need to be reformed.
• Supporting All Reform Movements That Challenge Patriarchy: Every citizen should join hands with the government to eradicate the injustice against women which will lead to the overall growth and development of entire nation. We have to try to lead traditions out of darkness into light and not allow them to lead us into darkness.

Conclusion:

• Thus, the rights of women should be respected across nations which are denied through power structures and social customs like Triple Talaq and polygamy. The women should not be deprived of their basic dignity of life which they deserve. Introduction of a secular code drawn from the principles of personal freedom, human rights and justice will not only strengthen secularism but will reinforce women empowerment.