Marriages maybe made in heaven but divorces are made on earth. The saying that what God has put together, man should not put asunder does not hold good in today’s context. Divorce has become inevitable when there is an irretrievable breakdown of the marriage and one such form of divorce in Muslim Law has come under the scanner
The Triple Talaq issue has become a burning issue and a bone of contention between the ruling BJP and the Opposition parties. Triple Talaq called talaq- e biddat or instant divorce is used by Muslims in India. Talaq means divorce in Arabic. By this form of talaq, any Muslim man can divorce his wife by uttering the word talaq three times, either orally, or written or in any electronic form.
The Supreme Court in the case of Shahyara Bano and Others Vs Union of India had on 22.8.2017 reported in (2017) 9 Supreme Court Cases declared instant triple talaq as unconstitutional. In a majority of 3 out of 5 judges, it was held that this provision is violative of Articles 14 and 21 of the Indian Constitution and it was struck down and considered to be invalid and illegal. This form of Talaq is banned in 22 countries of the world. Several women’s rights groups have spoken out against this practice and its ill effects.
The Union Minister for Law and Justice, Ravi Shankar Prasad said that triple talaq was rampant even though the Supreme Court declared it to be void and 345 cases were reported after the Supreme Court passed its verdict in 2017. Hence the government took steps to pass a bill to this effect.
The Lok Sabha passed the Bill on July 25th with a majority of 303 voting for it and 82 voting against the Bill. The BSP, TRS, TDP,JD and the AIADMK abstained from voting. The Bill then went to the Upper House for its assent. It was passed on the 30th of July with 99 voting in favour and 89 voting against it. The Bill was then sent to President Ram Nath Govind to put his stamp on it. Accordingly, the President gave his assent on the 1st of August 2019. This makes giving of instant oral triple talaq a criminal offence with provisions of a jail term upto 3 years.
The Triple Talaq Law or the Muslim Women (Protection of Rights on Marriage) Act 2019 has come into effect retrospectively from September 19th 2018. The Ministry of Law and Justice has notified the Bill in the Official Gazette of India. The new law says that if a husband pronounces instant triple talaq upon his wife by words, spoken or written, through SMS or WhatsApp or in any other form shall be held to be void and illegal. The husband is punishable with imprisonment which can extend upto three years and is also liable to pay fine. The offence has also been made cognizable and non bailable.
The Opposition parties are crying hoarse that the proposed law was passed only to be misused and harass Muslim men and want it to be reviewed by a Parliamentary Committee. The Leader of the Opposition in the Rajya Sabha, Ghulam Nabi Azad felt that the government instead of framing an unconstitutional law should concentrate on providing women with 33% reservation in Legislatures for their empowerment as the Congress had done in Panchayats, Corporations and in local bodies.
The Law enables a Police Officer to arrest the offender without a Warrant. The complaint however has to be filed only by the aggrieved woman or by her relatives by blood or through marriage. The Magistrate can grant bail only after hearing the aggrieved woman.
The government is justifying the passage of the Bill and has said that the Bill is to deter men to resort to triple talaq and to provide redress to women, grant them subsistence allowance as well as enable women to get the custody of their children. The BJP has projected the passage of the Bill as a historic milestone towards gender justice.
Meanwhile, Samastha Kerala Jamaithul Ulama, which is a religious organisation of the Sunni Muslim scholars and clerics in Kerala has filed a petition in the Supreme Court challenging the constitutionality of the law on the ground that the Act has introduced penal legislation specific to a class of persons based on religious identity which would cause grave public mischief and if unchecked would lead to polarization and disharmony in society.
A petition has also been filed in the Delhi High Court by a Delhi based Advocate Shahid Ali on the ground that the Act is violative of Articles 14, 15 and 21 of the Constitution and is therefore liable to be struck down as it violates the fundamental rights of Muslim husbands.
Opinion of experts on the issue: Advocate Mrs,Sudha Ramalingam who is a human rights activist and an expert in Family law opines that “After the Supreme Court has struck down Triple Talaq, this law is not necessary to prohibit the practice.” She feels that the Act does not further the rights of Muslim women. She goes on to say that” criminalising the utterance of triple talaq will have severe ramifications. It may result in the wife being abandoned while the husband languishes in jail.”
On the other hand, Advocate and human rights activist Mrs. Badar Sayeed welcomes the new law. According to her, it is the need of the hour and a step in the right direction though she feels that the punishment is disproportionate. This law would serve as a deterrant and men cannot go scot-free just by uttering the word “Talaq” and escape from their responsibilities. In her opinion, any talaq should go through the court of law where there is scope for reconciliation and arbitration. She does not think that it is an interference in the Muslim Personal law. She strongly feels that this law will benefit women and society at large.
It is left to be seen whether this law will be a boon or a bane to society. Only time will tell.