TRIPLE TALAQ: Ordinance
- September 20, 2018, 5:08 pm
The Union cabinet on Wednesday described the practice of instant triple talaq as a “constitutional emergency” and approved the instant triple talaq ordinance in an attempt to position the Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) as furthering its commitment towards women’s rights.
What is instant triple talaq?
Instant triple talaq or talaq-e-biddat is a practice that was challenged in the court. It is different from the practice of “talaq-ul-sunnat”, which is considered to be the ideal form of dissolution of marriage contract among Muslims.
Under the latter form, once the husband pronounces talaq, the wife has to observe a three-month iddat period covering three menstrual cycles during which the husband can arbitrate and re-conciliate with the wife. In case of cohabitation between the couple, during these three months, the talaq is revoked. However, when the period of iddat expires and the husband does not revoke the talaq either expressly or by consummation, the talaq is irrevocable and final.
In the practice of talaq-e-biddat, when a man pronounces talaq thrice in a sitting, or through phone, or writes in a talaqnama or a text message, the divorce is considered immediate and irrevocable, even if the man later wishes to re-conciliate.
1. Triple talaq remains cognizable with a maximum of three years imprisonment and a fine.
2. Triple talaq will be recognised as a crime only when a woman or her blood relative files a complaint with the police.
3. A compromise can be achieved only when the woman is willing and says so to a magistrate. A magistrate can grant bail only after the wife’s consent.
4. The custody of children from the marriage will go to the woman.
5. The mother is entitled to maintenance determined by a magistrate.
6. The law doesn’t affect Jammu and Kashmir.
ANALYSIS OF PASSED BILL
However, the changes to be introduced through the ordinance do address some of the reservations about the original Bill.
The first makes the offence cognisable only if the woman, or one related to her by blood or marriage, against whom triple talaq has been pronounced, files a police complaint.
Second, the offence has been made compoundable, that is, the parties can settle the matter between themselves.
And third, it provides that a magistrate may grant bail to the husband after hearing the wife.
These amendments will not only restrict the scope for misuse by preventing third parties from setting the criminal law in motion against a man pronouncing instant triple talaq against his wife; they will also leave open the possibility of the marriage continuing by allowing bail and settlement.
But the core issue that arises from the proposed law remains: whether a marital wrong, essentially a civil matter, should lead to prosecutions and jail terms. Also, when the law declares instant triple talaq to be invalid, it only means the marriage continues to subsist, and it is somewhat self-contradictory for a law to both allow a marriage to continue and propose a jail term for the offending husband.
SIGN OF UNDUE PATIENCE
This is a matter that required deliberation, especially after serious objections were raised to some provisions of the Bill passed by the Lok Sabha; also, there is an ongoing debate on the desirability of criminalising instant triple talaq.
The Bill made this form of divorce punishable by a three-year prison term and a fine. In the face of Opposition concerns, the government proposed significant changes to water down the provisions relating to the treatment of talaq-e-biddat as a criminal offence. Despite a notice for these amendments being given, the matter was not taken up in the Rajya Sabha in the last session due to a lack of consensus. When the Bill has been deferred to the next session of Parliament, it is not clear what exigency impelled the government to take recourse to the extraordinary power of promulgating an ordinance.
Clearly, the Centre wants to demonstrate that it is espousing the cause of Muslim women. But the mere lack of consensus in the House is not a good enough reason to promulgate an ordinance. It could even amount to subversion of the parliamentary process, as the Bill has been passed in one House and the other is likely to consider it in an amended form.