**This is the third issue of Laws for Laymen, an article series analysing the recent legislations that have been passed in the Parliament. Find a link to the second issue here: Laws for Laymen: Article 370 to Jammu and Kashmir Reorganisation Bill– From Unification to Bifurcation . For updates on the next issue, visit our Facebook or Instagram page.**
The Annual Budget Session (2019) of the Indian Parliament brought forth several bold and unanticipated policy decisions of the BJP government for deliberation in the apex legislative institution of the country. The entire session had very active stance, be it with regard to the record productivity demonstrated in law-making or as evident in the extension of the session’s duration. Among the numerous legislations that were passed, one of the crucial Bills was The Muslim Women (Protections of Rights on Marriage) Bill, 2019, popularly referred to as the Triple Talaq Bill.
Triple Talaq or talaq-e-biddat pertains to a practice in the Muslim community that involves an instant and irrevocable divorce if the husband states the word talaq (Arab word for divorce) three times in oral, written or more recently, electronic form. This practice has been a subject of debate and controversy in the country for decades, with critics raising issues of justice, gender equality, human rights and secularism.
The constitutional response to triple talaq first came into national focus with the Shah Bano Case of 1985. The Supreme Court decided in favour of the destitute woman, determining punishment for the husband. However, the Congress Party upturned the decision after popular protests by Muslim men in the country. Having remained largely within the realms of the Judiciary for three decades, the Supreme Court of India, on 22nd August 2017, declared instant triple talaq unconstitutional by a 3-2 majority. The two judges who declared the practice to be constitutional simultaneously asked the government to ban the practice by enacting a law.
However, when the then NDA government noted over a few hundred cases of triple talaq being recorded even after the verdict of the Apex Court, it took up the issue for legislation and formulated a Bill called The Muslim Women (Protection of Rights on Marriage) Bill, 2017. The Bill was introduced in the Lok Sabha and was passed on 28th December. It received stiff resistance in the Upper Chamber though, where the ruling party did not have a majority. The Bill lapsed at the end of the 16th Lok Sabha as it failed to gain support of both the Houses.
Meanwhile, an Ordinance was passed in this regard in February 2019. The Triple Talaq Bill was the first draft legislation to have been passed by the NDA-II cabinet after their massive victory in May 2019. It was finally successful in garnering the support of the majority in both Houses in this Budget session. The Bill was, thus, passed by the Parliament on 30th July and received President Ram Nath Kovind’s assent on August 1st. The Law makes triple talaq a non-bailable offence with up to three years of imprisonment for offenders. Custody of children, which was earlier mostly reserved for the man, will now be granted to the women.
The fundamental criticisms of the practice had been in correspondence to the extremes of gender discrimination and a consequent gender hierarchy being observed. A Muslim woman usually remained under this constant fear of being divorced by the man on whom she was largely dependent, emotionally as well as financially. Although talaq-e-biddat provides that a certain time period be observed between the three pronouncements of talaq to allow scope for reconciliation, the popular practice had become to finalise it instantly. Divorce was a unilateral decision made by the exclusive discretion of the man and could be granted instantly. According to the All India Muslim Personal Law Board (AIMPLB), “Sharia grants the right to divorce to husbands because men have greater power of decision-making.”
This practice reduced women to being mere subjects in a marriage bond, establishing unending negative implications for the nature of the relationship between a husband and a wife even in the best of circumstances. The government criticised the practice for being an endorsement of the active perpetuation of inequality in civil associations. Another significant angle to the debate was the notion of secularism inscribed in the Indian Constitution. The BJP had been expressing displeasure at the fact that the previous Congress governments had engaged in minority appeasement by allowing discriminatory practices in the personal laws of the Muslim community to continue, even as Muslim women were pleading for help. In this regard, the idea of a Uniform Civil Code (as suggested in Article 44 of the Directive Principles of State Policy) has been proposed, that could apply indiscriminately to all citizens irrespective of their religious affiliation.
The chief opponents (the INC, RJD, AIMIM, RSP, AIADMK, BJD, IUML, etc) of the Triple Talaq Bill fought their case on three primary arguments. Firstly, divorce is a civil concern and matters related to it should not be dragged under criminal categories. Secondly, when the Supreme Court had already given its verdict in the matter, there wasn’t any need for a distinct law from the government. Thirdly, once the husband is sent to serve a jail term, the concern arose as to where the wife was supposed to derive her economic subsistence from. It has also repeatedly been projected as an attempt on part of the government to infringe upon the freedom of minority communities to practice their religious traditions. The concerns around an apparent threat to secularism has constantly been a major claim from the Opposition. A strong response on this came from Law Minister Ravi Shankar Prasad, who questioned the Opposition’s vociferous protests, stating that when 20 Muslim countries around the world, including Pakistan and Malaysia had banned the practice, why was it a problem if a secular country like India wanted to deem it illegal?
Even as the Lok Sabha was deliberating upon the rights of women and how the Triple Talaq Bill intends to assure them of those rights, the House witnessed for itself some reflections of very unfortunate mentalities of the members. One of these incidents was when Samajwadi Party MP Azam Khan hurled a sexist remark at the Deputy Speaker Rama Devi. What was further shocking to see was the SP Chief Akhilesh Yadav smirking throughout the course of affairs and later coming to defend the intentions of Mr. Azam Khan.
Another occurrence that gained limelight for the wrong reasons was when All India Majlis-e-Ittehadul Muslimeen (AIMIM) MP Asaduddin Owaisi, in his Parliamentary address criticising the Bill, made a controversial remark in saying that when all ‘serious offences’ such as homosexuality were being decriminalised, why were the rights of a Muslim man being taken away?
On the economic front
Certain women’s rights activists have pointed out that the provisions of the Bill are economically disadvantageous for Muslim women, for the simple reason that a majority of the women who undergo such problems are those who are not qualified or economically stable enough to sustain themselves and their children. Therefore, a maintenance allowance from the former husband is a mandatory requirement. In such circumstances when the husband is serving a jail term, it is impractical to expect the in-laws to provide for sustenance allowances to the wife. In a traditional society like that of India, it is further less likely in most cases that the woman will receive a warm welcome in her maternal household and will be able to lead a dignified life there. An economic gap is thus created for the woman. The government must make certain provisions to accommodate this very serious concern.
However, a more long-term but fundamental way would be to ensure a radical transformation in the society where education for girls is prioritised as much as for siblings of the opposite gender. Economic self-reliance for women is of utmost importance not just in the post-divorce situation, but to change the role of women in households to begin with. There is a need to consolidate women’s dignity and shift the thrust of the discussion from maintenance allowances to allowing girls the chance to make a bright future for themselves. At the moment, however, even as the country celebrates the move, there is a need to effectively address the grievances of women pertaining to these economic aspects.