By Sunidhi Singh, Army Institute of Law, Mohali.
“Justice consists not in being neutral between right and wrong but in finding out the right and upholding it, wherever found, against the wrong.”-Theodore Roosevelt
In the case of Shayara Bano v. Union of India and others, it was held by the honorable Supreme Court of India that the practice of triple talaq is unconstitutional in nature as it renders the Muslim women of our country bereft of the fundamental rights vested in them by the Indian Constitution, such as right to equality (Article 14) and right to live with dignity (Article 21).
It isn’t the first time when a Muslim woman had protested against this evil practice, also known as talaq-e-biddat, but this was the first instance when a Muslim woman had actually challenged the practice of instant talaq, raising the contention regarding its interference with her fundamental rights.
Under Islam, there are three ways following which, a man and a woman can be held divorced, namely talaq-e-ahsan, talaq-e-hasan and talaq-e-biddat, of which only the first two have the sacred sanction of the Holy Quran. Triple talaq, under which method, the married Muslim woman does not even have a say in severing the marital relationships, is a loathsome irrevocable practice of the instant pronouncement of the word ‘talaq’ three times in a row leaving the Muslim wife distressed, broke and destitute.
Hence, on 22nd August, 2017, the abominable practice of triple talaq was declared to be arbitrary and unconstitutional by the Five Judge Bench consisting of the then Chief Justice of India, J.S. Khehar, Justice Abdul Nazeer, Justice U.U. Lalit, Justice R.F. Nariman and Justice Kurien Joseph. For the purpose of keeping in mind the views of all major religions that exist in our country, this five judge bench was constituted by the Justices of five different religions including a Hindu, a Muslim, a Sikh, a Parsi and a Christian.
While former CJI Khehar and Justice Nazeer directed the government to pass a legislation keeping in mind the significant changes in the Muslim Personal Law ‘Shariat’, Justice Nariman, Justice Lalit and Justice Joseph declared the act of triple talaq to be illegal and they favored the injunction of Muslim husbands for the use of instant talaq for six months or until a firm and well equipped legislation is passed.
“Justice has nothing to do with what goes on in a courtroom; justice is what comes out of a courtroom.” –Clarence Darrow
Therefore, after about five months of the historical judgment, the Muslim Women Bill (Protection of Rights on Marriage), 2017 was introduced in the Lower House of our bicameral Parliament, where it got passed, while still facing a little bit of criticism from a few members.
This Bill was formulated by our External Affairs Minister Sushma Swaraj, Finance Minister Arun Jaitley, Law Minister Ravi Shankar Prasad and Minister of State for Law PP Chaudhary under the leadership of our Home Minister Rajnath Singh.
THE MUSLIM WOMEN BILL (PROTECTION OF RIGHTS ON MARRIAGE), 2017
The Preamble of the Bill reads as follows-
“A bill to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.”
Sections 3 and 4 of Chapter Two of the Bill state that the pronouncement of talaq by a person upon his wife by words either spoken or written or in electronic form or in any other manner whatsoever shall be void and illegal and that whoever pronounces talaq referred to in Section 3 shall be punished with imprisonment for a term which may extend to three years and a fine.
Section 5 in Chapter 3 of the Bill asserts 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 the dependent children as may be determined by the Magistrate.
However, the Bill fails to clearly mention and demarcate between the various modes through which such an allowance is to be paid or delivered as it is currently silent on that issue, thereby leaving everyone in a state of ambiguity regarding the payable alimony, since the accused husband will be serving a jail term extending up to three years at that time.
Although Section 6 of this Bill provides the custody of minor children to the wife, the discretion has been left to the Courts to decide on the issue, thus leaving the future of such children uncertain. Hence, this section needs to be specific about the grounds on which the custody of the minor is to be decided, rather than resorting to arbitrary methods for the same.
Section 7 of the Bill postulates that the act of triple talaq shall be treated as a cognizable offence (wherein a police officer has the powers to arrest or investigate into such matters without any warrant) and a non-bailable offence (wherein bail is granted at the discretion of the Court).
This is a strong step which will definitely slim down the occurrences of triple talaq, owing to the fear of being accused, created in the mind of the perpetrator. Since everything is laden with both positive and a negative aspects, this Section also gives room for its malicious use, as has already been observed in the cases of domestic violence and dowry prevailing throughout the country.
“Men and women have roles – their roles are different, but their rights are equal.” –Harri Holkeri
Although this Bill got passed in the Lok Sabha, it faced a plethora of challenges when it reached the Upper House of the Parliament, and it could not be passed in the last Winter Session. The Bill thereafter had to face greater dissent and defiance, as the members of opposition were reluctant to let the Bill pass, urging for it to be sent to a Select Committee, which was not possible, as such an action was available only for the Bills which were essentially introduced in the Rajya Sabha.
Thereafter, the Triple Talaq Bill could not be passed through the Upper House of the Parliament and the Winter Session of the Parliament got over, leaving the citizens of India, especially the Muslim women of our nation, in an equivocal state.
The reasons for the defiance faced by this Bill, are manifold. We, however, need to bear in mind the fact that various political parties need to set aside their ulterior motives and agenda, for this particular matter, as as the Bill deals with the prestige and glory of women without whom the world cannot exist.
The Bill certainly needs to be amended and made more precise before getting sanctioned from the Parliament, as accuracy and not speed shall be the objective of the government for the betterment of the society. You can afterall not rush upon matters you wish for, to last forever.
“We must accept finite disappointment, but never lose infinite hope.” –Dr. Martin Luther King Jr.