All powers in India have entered into a ‘unholy’ alliance to exorcise a spectre called ‘The Muslim Women (Protection of Rights on Marriage) Bill, 2017’ including major opposition parties led by Congress, All India Muslim Personal Law Board (AIMPLB), left-wing women’s organisations, legal eagles, media and academia. Ten days prior to the introduction of the bill in Lok Sabha, The Hindu wrote an editorial, terming the action of the Union government as ‘unnecessary and possibly counter-productive’.
There are two broad sections within this alliance. In May 2017, Communist Party of India (Marxist) general secretary Sitaram Yechury had criticised Prime Minister Narendra Modi’s stand on triple talaq as communal. Yechury did not change his position even after the apex court ruling. Senior Supreme Court lawyer Indira Jaising went a step further by criticising the triple talaq ruling of the top court on the ground that it fails to address the real sufferings of Muslim women. Criticism springing from these corners has been consistent from the very beginning, and is, thus, definitely discernible, if not acceptable. The Congress, which welcomed the triple talaq ruling as historic victory to women, and supported the bill in theLok Sabha (with certain caveats), has now wholly opposed it in the Rajya Sabha.
At the outset, the opponents have branded the bill as a pure penal code aimed at criminalising Muslim men without any measures for alleviation of the plight of Muslim women.
The bill, introduced by the in Lok Sabha by Minister of Law and Justice Ravi Shankar Prasad on 28 December 2017, provides that talaq-e-biddat or instant triple talaq, including in written or electronic form, to be void – not enforceable by law. A Muslim woman, against whom instant triple talaq has been declared, is entitled to seek subsistence allowance for herself and her dependent children from her husband. The amount of the allowance and entitlement and determination of custody of her minor children will be decided by a judicial magistrate of first class.
One of the most common criticisms against the bill has been that it criminalises a civil wrong.
Violence on women has never been dismissed as a civil wrong. The first law commission of India established in 1834 under the Charter Act of 1833 with Thomas Babington Macaulay as its chairman had recommended severe punishment for bigamy and that is how, the Indian Penal Code (IPC) 1861 made bigamy a punishable offence. Even to this date, bigamy is punishable with jail term extendable up to seven years as per section 494 of the IPC. Almost all civilised nations have prescribed severe punishment for bigamy. Domestic violence is also a punishable offence in India ever since the Congress government enacted the Protection of Women from Domestic Violence Act, 2005. There is, thus, no infirmity in prescribing punishment for instant triple talaq.
Prescribing punishment for instant triple talaq has been contemplated not just in India but across the world, particularly the Muslim majority nations.
Recently, Arif Mohammed Khan, who had resigned from Rajiv Gandhi cabinet over the Shah Bano issue, is reported to have said that Umar Caliph had inflicted the punishment of flogging on the men who had divorced their wives by way of triple talaq.
In fact, the triple talaq judgement by the apex court thus cites the legal position, on talaq in Pakistan and Bangladesh as contained in their respective Muslim family law ordinances:
- Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.
- Whoever contravenes the provision of Sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees (In Pakistan and ten thousand Takas in Bangladesh), or with both
On 21 January 2015, the Council of Islamic Ideology (CII), a constitutional body of the Islamic Republic of Pakistan, responsible for giving legal advice on Islamic issues to the government and the parliament, has strongly favoured strict punishment for instant triple talaq. This was again reiterated by it on 10 February 2018.
The second criticism, associated with that of the first, is that punishment prescribed for instant triple talaq is an overkill. It is argued that by prescribing stringent punishment, the lawmakers are introducing the strict liability for a criminal offence and that will reduce the conviction rates. The very same argument was advanced during the Hindu Code Bill, Dowry Prohibition Act and Nirbahya Act. However, the Congress government went ahead with its laudable endeavour of enacting these laws that prescribe strict punishment for offender under these laws.
It is argued further that many penal laws in India are hardly implemented effectively. As such, given our philosophy governing criminal jurisprudence, the conviction rate is far from being satisfactory. However, this is no ground for scrapping of criminal laws. The Supreme Court has time and again held that non-effective implementation of a law is no ground for its annulment.
One other interesting legal argument advanced against the bill is that once instant triple talaq has been declared to be a nullity in the eyes of law, where is the scope and need for punishing the ‘offenders’?
Jamiat Ulema-e-Hind, considered to be the largest representative Muslim body in India, having considerable influence across wide sections of Muslims across states, has declared that it will not accept Supreme Court’s ruling. In fact, Siddiqullah Chowdhury, president of the Jamiat Ulema-e-Hind's West Bengal unit and a minister in Mamata Banerjee’s government is on record saying that Supreme Court’s ruling is unconstitutional.
Consider this very interesting case that was reported in Pakistan in 2013. One Tahira was married to Naseer Khan on 1 August 2000. Naseer divorced Tahira by way of instant triple talaq. However, neither party filed any necessary documents before the Pakistani courts, as required under the family laws of Pakistan. In 2003, Tahira married one Hamid Moghal in the US. But following a domestic altercation, they separated in 2009 and Tahira filed a suit for maintenance against Moghal. In the meantime, Moghal had discovered that Tahira’s marriage was not legal ended and based on the earlier certificate of marriage of Tahira and Naseer Khan, Moghal filed a case for annulment of marriage. Finally, the Court of Appeals of Virginia in the US favoured Moghal and ordered for the return of every single penny that Tahira had received as interim maintenance from Moghal.
Tahira was wronged twice – once as victim of illegal triple talaq for which her errant husband was never punished. Adding insult to injury, her ‘second’ husband managed to secure annulment of marriage without having to part with a single penny.
If no legal action is taken against this practice, the Supreme Court ruling will be reduced to a funny nullity, if not already reduced to one by the likes of Jamiat.
Shridhar Prabhu is the Managing Partner of Navayana Law Offices, a Bengaluru-based niche law firm, specialising in Energy Laws. Mr Prabhu is based out of Bengaluru but practices across various High Courts and Tribunals across India.
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