This compulsion and urgency could have waited for another two-odd month. But the immediate aim of the ordinance on triple talaq is the assembly elections in the four states. – Impatience Move towards Triple Talaq Ordinance
A “crime” originates in government policy, and criminal law, therefore, often reflects the idea of power rather than of justice. The state in its discretion declares certain acts ‘crime’ as per its electoral or diversionary needs. Stating that there was an “overpowering urgency” to bring the measure as instances of this mode of divorce continued unabated despite the Supreme Court striking it down, the Union Cabinet on Wednesday passed the Ordinance to amend provisions of the Triple Talaq Bill. President Ram Nath Kovind signed the Ordinance later the same day. The official name for the law is the Muslim Women (Protection of Rights of Marriage) Ordinance 2018
According to the ordinance, giving instant Triple Talaq has been made illegal and void, and will attract a jail term of three years for the husband. Seeking to allay fears that the law could be misused, the government has included certain safeguards in it such as adding a provision of bail for the accused before trial. These amendments were cleared by the Cabinet on 29 August.
The Ordinance states that even though the Muslim Women (Protection of Rights on Marriage) Bill, 2017 is pending in the Rajya Sabha and despite the Supreme Court has observed that the practice of Triple Talaq is unconstitutional, the practice still carries on.
Key features of the Ordinance:
- The Ordinance is applicable to the whole of India but it is not extended to the State of Jammu and Kashmir
- According to the Ordinance, any pronouncement of ‘talaq’ by a Muslim husband to his wife in any manner, spoken or written, shall be void and illegal.
- Any Muslim husband who communicates the ‘talaq’ orally or in writing may face a punishment up to three years in jail. The punishment may be also extended.
- The Ordinance also states that despite the presence of general laws in force, if a Muslim man pronounces ‘talaq’ to his wife, then the woman and her children are entitled to receive an allowance for subsistence. Such amount can be determined by a Judicial Magistrate of the First Class.
- The Ordinance also states that a Muslim woman is entitled to the custody of her minor children even if her husband has pronounced ‘talaq’ to her.
- The offence is pronouncing talaq is cognizable if the Muslim woman on whom it is pronounced communicates the information to a police officer.
- The offence is also compoundable if the Muslim woman insists for the same and the Magistrates allows certain terms and conditions which he may determine.
- A person accused of this offence cannot be granted bail unless an application is filed by the accused after a hearing in the presence of the Muslim woman (on whom talaq is pronounced) is conducted and the Magistrate is satisfied with the reasonable grounds for granting bail.
What was the issue?
On August 22, 2017 in a landmark judgment of Shayara Bano v. Union of India (Writ Petition (C) No. 118 of 2016), the Supreme Court (SC) held that the Muslim practice of Triple Talaq unconstitutional, striking it down by 3:2 majority. The SC said Triple Talaq violates the fundamental right of Muslim women as it irrevocably ends the marriage and is against the basic tenets of the Quran.
How it all began: Shayara Bano, a 35-year-old woman, challenged the practice in 2016, a marriage of 15 years was dissolved in minutes unilaterally with her husband dispatching a ‘talaqnama’ to her while she was at her parent’s place in Kashipur, Uttarakhand recuperating from an illness. Shaira recounts, “I spoke to him over the phone last year where he said he had left me. Then one day he said he was sending some property papers and that I must accept the post. I did. And when I opened it, there lay before me a divorce deed (talaqnama).” Shaira alleges she went through a harrowing time in the last 15 years of marriage. She was mentally tortured by demands of dowry initially. After she had two children, all subsequent pregnancies were forcefully aborted by her husband. Despite all this, she never protested, just so that she could save her home and not bring disrepute to her family.
Petitions of four other Muslim women- Aafreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri were tagged with Bano’s plea. In February this year, the SC said a Constitution bench would be set up to hear and decide on whether triple talaq is constitutionally valid. The bench reserved its verdict on May 18 after a six-day marathon hearing during the summer vacation.
What SC said: Justices Rohinton Nariman, Uday Lalit and Joseph Kurien ruled that Triple Talaq is unconstitutional. Justice Abdul Nazeer and Chief Justice JS Khehar upheld the validity of Triple Talaq. The bench had asked All India Muslim Personal Law Board (AIMPLB) why a “custom which is theologically sinful” was “part of the practice of a community”. The question was asked after AIMPLB took the stand that Triple Talaq might be sinful yet it was a religious practice dictated by Sharia. The SC said Triple Talaq violates the fundamental right of Muslim women as it irrevocably ends the marriage.
Talaq-e-biddat: Triple talaq is the practice under which a Muslim man can divorce his wife by simply uttering “talaq” three times. It is prevalent among India’s Muslim community majority of whom follow the Hanafi Islamic school of law. This mode of divorce is not universal among Muslims across the world, as many other Islamic schools of thought prefer the divorce process to be deferred, in many cases over a period of three months.
The argument against Ordinance:
The Ordinance has made three changes in The Muslim Women (Protection of Rights on Marriage) Bill, 2017, which was passed by Lok Sabha on December 28, 2017 — the provision of bail, filing of FIR only by the affected wife or her family, and the scope for reconciliation and compromise by the parties — but continues to have problems.
The contingency: Should uttering the word talaq three times in one go be a criminal offence? The English philosopher-jurist Jeremy Bentham (1748-1832) argued against using criminal law in three situations: when there is no evil in the act that legislature endeavours to prevent; where punishment would be inefficacious; and where punishment would be unprofitable, that is, the evil of punishment is greater than the evil of the act. Following Shayara Bano, triple talaq can no longer break the marital tie, and is, therefore, inconsequential. The Italian Enlightenment criminologist Cesare Beccaria wrote that the fundamental principle of good legislation is the art of conducting men to the maximum of happiness, and to the minimum of misery. A principal source of errors and injustice in legislation are false ideas of its utility.
In criminalising any act, the state must demonstrate “compelling state interest”. Ordinances are to be promulgated when there is an immediate need of a law and Parliament is not in session. The Muslim Women (Protection of Rights on Marriage) Bill, 2017 is pending in Rajya Sabha. Political needs do not justify the use of the extraordinary power to promulgate an Ordinance.
The Statement of Objects and Reasons of the Ordinance says the Supreme Court held triple divorce unconstitutional. In fact, the court merely set aside the practice. The Ordinance itself may be struck down as unconstitutional on the grounds of harm theory, and arbitrary and excessive punishment.
Speaking with media persons after the cabinet meeting, Ravi Shankar Prasad talked about “compelling necessity and overpowering urgency” to bring about the ordinance on triple talaq. He said 430 cases of triple talaq have come to the government’s notice from January 2017 to September 13 this year. Of these, 229 cases took place before the Supreme Court delivered a verdict on triple talaq on August 22, 2017. The remaining 201 cases are of the period after the Supreme Court’s judgment on triple talaq, he said.
Talking further about the “compelling necessity and overpowering urgency” to approve the ordinance on triple talaq, Ravi Shankar Prasad claimed that women were facing immense hardship, particularly in Uttar Pradesh where 246 cases of triple talaq had taken place since January 2017. He also said triple talaq has nothing to do with faith or mode of worship or religion “It is purely about gender justice, dignity and equality,” he said.
This compulsion and urgency could have waited for another two-odd month. But the immediate aim of the ordinance on triple talaq is the assembly elections in the four states.
Some female activists also condemned the Cabinet’s decision, calling it a “politicised move” without considering the complications it could pose to Muslim women, The Times of India reported.
According to the report, All India Progressive Women’s Association (AIPWA) secretary Kavita Krishnan asked: “Why are only Muslim men getting punished for abandoning their wives, and not Hindu men?”
PTI quoted her as saying: “Triple Talaq is not an official divorce, it is a form of abandonment. Does a Hindu man get imprisoned for abandoning his wife? We do not agree with the government’s decision to make it a criminal offence.”
As per another report from The Times of India, the National Federation of Indian Women (NFIW) has cautioned that the Ordinance must not be hailed as a panacea for the troubles of women who are victims of Triple Talaq.
“Even after the amendments the fact that after she files an FIR and sends her husband to jail the woman will be left behind to fend for herself and her children,” said NFIW general secretary Annie Raja.
She raised doubts about the “intention and sincerity” of the government and said, “The government has taken this step for political gains in the upcoming elections… If the government is so concerned about the welfare of women, why is it keeping mum on the Women’s Reservation Bill? That would empower them too.”
General secretary of All India Democratic Women’s Association (AIDWA), Mariam Dhawale, said the move would create most problems for Muslim women only. “It would leave them (Muslim women) nowhere. What about property rights of the women and her children after Triple Talaq, there needs to be clarity on that,” Dhawale added.
Student, LL.M. ( Access to Justice)
Tata Institute of Social Sciences, Mumbai
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Author: Durgesh Kumar Shukla
Member, Indian Society for Criminology (ISC)
Student, LL.M. (Access to Justice), Tata Institute of Social Sciences, Mumbai
Interest: Criminology, Victimology and Child Rights