Even if Supreme Court declared triple talaq illegal, what was the remedy available to Muslim women who suffered it anyway?
Barely two years back, a Muslim woman petitioner knocked on the doors of the Hon’ble Supreme Court of India to assail the divorce pronounced by her husband by way of a practice known as talaq-e-biddat, more commonly known as triple talaq. By this practice, the husband had the power to unilaterally, abruptly, and irrevocably, end all marital ties with his wife. After six long days of hearing arguments from both sides, the Honorable Court finally pronounced a split verdict of 3:2 in favour of declaring the act of talaq-e-biddat to be void and illegal, in what will be remembered as the judgment of Shayara Bano v. Union of India.
Once the celebrations for the pathbreaking judgment were over, it was realised that the same was being brazenly flouted and to make matters worse, the victims of such acts, were left with no real remedy. Even if a Muslim woman was armed with a judgment of the highest Court of the country, what could she practically do if her husband pronounced those three fateful words – ‘talaq, talaq, talaq’ and disappeared one day? Nothing really.
To remedy this situation, the Legislature rose to the occasion to come up with the Muslim Women (Protection of Rights on Marriage) Act, 2017. It is a concise Bill with three chapters – a chapter for short title, extent, commencement and definitions, one for declaring talaq to be void and illegal and a third with provisions conferring upon Muslim women, certain rights in case she is subjected to such disparaging behaviour. This sums up the scheme of the Act.
Within hours of the Bill being passed by the Lok Sabha, there was a massive hue and cry about the Bill being unconstitutional, for the lack of more inventive arguments. In the light of such active and colorful misinformation campaigns by prominent lawyers who are also supposedly women’s rights activists, it becomes important to shed light on the immense good that the Bill has set out to achieve.
I will highlight the arguments of one such eminent activist, in representative capacity and in the process discuss the details of the Bill.
In an interview on BloombergQuint, Ms. Karuna Nundy, a Supreme Court advocate and women’s rights activist, clamorously argued against criminalising the act of triple talaq. On being questioned about the remedies available to Muslim women who are subjected to triple talaq in the absence of such an Act however, she ended up giving a peculiar answer – they can resort to the Domestic Violence Act or claim maintenance, she said (she conveniently failed to specify the law). This answer was completely inconsistent with her stand that after the Supreme Court judgment, the act of triple talaq is neither “divorce”(hence no maintenance) and nor does it cause any violence (hence no DV Act).
Ms. Nundy had also taken to Twitter to put forth her analysis of the said Bill. “Hilarious : S. 2(b) defines ‘talaq’ as talaq-e-biddat, any other form of talaq which has ‘instantaneous and irrevocable effect’. After Shayara Bano, those three words uttered together have no such effect. So the whole Bill fails” she tweeted.
Let me break down her argument for you. What she has essentially argued is that, since the Supreme Court has held that pronouncement of the word ‘talaq’ will not result in any instant or irrevocable ending of marriage, and this Bill criminalises the talaq that would have an instantaneous and irrevocable effect, this Bill does not in effect criminalise anything, after the pronouncement of the judgment.
In her zeal to pronounce the ultimate doom that this Bill is headed towards, she has missed out on a few crucial things.
What is taught in elementary lectures on the interpretation of statutes is that a statute must be read as a whole, beginning with the Statement of Objects and reasons (SOR). In this case, the SOR clearly states that despite the Supreme Court’s pronouncement declaring triple talaq to be illegal and void, there have been reported instances of “divorce” by way of such talaq and the judgment has had no deterrence value for those blatantly flouting it. To add teeth to the judgment thus pronounced, this Bill has been proposed. Ms. Nundy’s argument that such a divorce “doesn’t really mean anything because it is void” can not only be said to be thoughtlessly academic but also one that signals a dearth of empathy for many defenceless women.
If her logic is to be accepted then solemnising or permitting child marriage, which is currently an offence punishable with upto 2 years imprisonment and fine under The Prohibition of Child Marriage Act 2006, would also not be a crime. After all, some instances of child marriage are void, or better still, voidable at the instance of the parties!
Even if her argument were to be considered, it is to be noted that she has deliberately or by oversight, missed out on a very important part of the definition of talaq in Section 2(b) of the Act. The definition in the Act is quoted as follows :
(b) "talaq" means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband; “
Match that with her definition and you will find the conjunctive word ‘or’ missing in hers.
Even if her argument was taken to be technically correct, the word ‘or’ clearly separates the two parts of the definition clause and the pronouncement of talaq-e-biddat as it is generally understood and routinely practiced, would still be a criminal offence.
She has also taken to Twitter, to give voice to the stand of Bebaak Collective, a Muslim women’s rights group that has opposed the Bill saying that punitive measures will not act as deterrence. What is fascinating is that an advocate who has thus taken a principled stand that punitive measures do not lead to deterrence of crime commission, is also at the same time keenly arguing a case before the Delhi High Court to criminalise marital rape, and has also assisted in drafting Dr Shashi Tharoor’s private member Bill to make ‘stalking’ a non-bailable offence! If there is no deterrence attached to punitive measures, then why make such valiant efforts on chosen fronts? It is even more interesting to note how, while highlighting the opinion of one Muslim women’s rights group, she has stamped out the voice of the Bharatiya Muslim Mahila Andolan, another Muslim women’s rights group, that has embraced the Bill as a necessary legal protection for Muslim women.
The Bill has not just declared the pronouncement of talaq-e-biddat to be a criminal offence that could attract an imprisonment of up to 3 years and a fine, but has also provided for the payment of an allowance by the man to his wife for her and her dependent children. This provision has been stated to be inconsistent with the rest of the Bill by many who have misread it completely. What is to be appreciated here, is that the Legislature has not used the word “maintenance”. Instead, in its wisdom, it has used the phrase “subsistence allowance”. This provision, coupled with the fact that the offence has been made non-bailable, will give the woman the much necessary courage to file a complaint without being deterred by financial uncertainty.
Amidst a barrage of lengthy Statutes which only lead to commotion and result in the voice of the Legislature being lost in the plethora of twisted interpretations that are offered, this Act is in fact, a perfect specimen, of how a legislation should be drafted – crisp and focused. It was very rewarding to see the Bill being passed by the Lok Sabha. Once it transforms itself into an Act, this legislation will be that one step for the Legislature, that is in fact a giant leap for Muslim womankind.