The intent is thus clearly to make triple talaq a criminal offence with imprisonment up to three years in addition to a fine.
The practice of triple talaq, where pronouncement of the word “talaq” thrice in one sitting by a Muslim man to his wife results in instant and irrevocable divorce, is abhorrent. It needs to go, and has indeed been abolished in many Islamic countries. The Supreme Court (SC) has done the right and progressive thing by banning the practice. In law now, triple talaq is ab initio null and void and unenforceable.
While the SC has done what it needed to do, the Parliament has the right to pass a law to ensure compliance. What shape and form this law should take is at the crux of the controversy witnessed in Parliament when the Muslim Women (Protection of Rights on Marriage) Bill, 2019, was introduced this week in the Lok Sabha by law minister Ravi Shankar Prasad. There were objections raised by Opposition members even at the stage of introduction, but given the overwhelming majority enjoyed by the ruling party, this bill was introduced, though only after a vote.
There are provisions in the new bill that need careful consideration. Article 3 rightly declares that “any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”. This article is entirely in consonance with the judgment of the honourable SC. However, the very next clause, Article 4, is what is seriously debatable. It says that “any Muslim husband who 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 shall also be liable to fine".
Further, the bill stipulates in Article 7 (a) that the offence shall be cognisable, which means that a police officer can arrest an accused without a warrant. Such an arrest without warrant can be made not only on a complaint by the married woman on whom talaq is pronounced but by any person related to her by blood or marriage. Such wide punitive powers on a complaint, not by the direct victim but by her extended family, certainly opens the way to misuse. This is particularly relevant since Article 7 (c) states that “no person accused of an offence punishable under this ordinance shall be released on bail unless the magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such a person”. Bail, which is the inherent right of an accused in such a category of offence, has thereby been made stringently conditional.
The intent is thus clearly to make triple talaq a criminal offence with imprisonment up to three years in addition to a fine. The valid question is: Is this necessary, and does it amount to discrimination? First, there are practical difficulties. Article 5 of the proposed Bill states - rightly - that “a married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children as may be determined by the magistrate”. But, if the accused husband is in jail, and is unable to earn, how would this subsistence be paid? Second, not enough reasons have been given as to why this offence cannot be punishable under the existing provisions of civil law. It must be remembered that the SC has already banned the practice of triple talaq. If the practice itself can no longer exist, the question boils down to the willful desertion of a wife and children by a husband. But this offence is not specific only to the Muslim community. It happens in all religious communities. Why must then we single out Muslim husbands for a punishment that is specifically more stringent and draconian that that meted out for a similar offence to members of other religious communities? There is merit, therefore, in the argument that doing so militates directly against Article 14 of the Constitution which guarantees to all citizens “equality before the law or the equal protection of the laws within the territory of India”.
The fundamental question then is: While personal law needs, on occasion, to be reformed, what is the best way to do this, so that the reform is enduring, equitable and viable? In this context, it is instructive to reflect upon the response of Nitish Kumar, in his capacity both as chief minister of Bihar and the president of the Janata Dal (United), to the questionnaire sent by Justice B.S. Chouhan, chairman of the Law Commission, on the question of the uniform civil code (UCC).
In his reply Mr Kumar wrote: “While the state must endeavour to bring in the UCC, such an effort, in order to be enduring and sustainable, must be based on a broad consensus in favour of such a move, rather than be imposed by fiat from above. It is important to always remember that ours is a nation based on a delicate balance in respect of laws and governing principles for different religions and ethnic groups. Any attempt, therefore, to impose a UCC, without obtaining through substantive consultations the concurrence of various religious groups, especially the minorities, could lead to social friction in the constitutional guarantee of freedom or religion.” “In our view”, Mr Kumar further writes, “the UCC must be seen as a measure of reform for the welfare of the people, and not a political instrumentality to be hurriedly imposed against their wishes and without consultations with them… The JD(U) is of the firm view that democracy is based on the foundational principle of a constructive dialogue.”
In the light of these sound observations, the BJP must be asked why it is in a tearing hurry to bring this bill immediately, without the necessary deliberation and widespread consultations that such a measure requires. There is no harm in referring the proposed legislation to a select committee of the Parliament so that its content and intent is thoroughly deliberated and the necessary wider consultations are held in order to have a law that is fair and truly in response to what is good for Muslim women and the Muslim community as a whole.