Context: The Supreme Court has issued notice to the Centre on a set of PILs challenging the recent Muslim Women (Protection of Rights on Marriage) Act 2019, more popularly known as the triple talaq criminalisation.

What’s the issue?

1. The pleas have alleged that the Act is unconstitutional, as it criminalises the “mere pronouncement of triple talaq, which had already been declared unconstitutional and void” by the Supreme Court.
2. The pleas have also alleged that the law “unjustly and unfairly” criminalises the act of one community, even as desertion of the wife by other communities is not a crime.

Background:

Parliament, last month, passed the Muslim Women(Protection of Rights on Marriage) Bill, 2019criminalising triple talaq. After President Kovind signs the bill, it will become the law and will replace the 1986 Muslim Women (Protection of Rights on Divorce) Act.

The Supreme Court’s judgment in the Shayara Bano case held that the practice of talaq-e-biddat (or triple talaq) unconstitutional. After the judgement, government passed Muslim protection Bill also known as, Triple Talaq Bill in Lok Sabha but there have been criticism about the legal and procedural aspects of the bill.

Significance of the bill:

The proposed Bill will protect the rights of married Muslim women and prevent divorce by the practice of instantaneous and irrevocable ‘talaq-e-biddat’ by their husbands.

It provides the rights of subsistence allowance, custody of minor children to victims of triple talaq i.e. talaq-e-biddat.

Key provisions of the Bill:

1. The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
2. Definition: It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.  Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
3. Offence and penalty: The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine.  (A cognizable offence is one for which a police officer may arrest an accused person without warrant.) 
4. The offence will be cognizable only if information relating to the offence is given by:(i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.
5. The Bill provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
6. The offence may be compounded by the Magistrate upon the request of the woman(against whom talaq has been declared). Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute.  The terms and conditions of the compounding of the offence will be determined by the Magistrate.
7. Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the allowance will be determined by the Magistrate.
8. Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.

Issues with the bill:

1. The bill introduced in Parliament proposes a three-year jail term for a man divorcing his wife through triple talaq. Although most Muslim women feel it is time to end the practice, they are wary of the slipshod manner in which the government has passed the bill in the Lok Sabha.
2. If the aim of the law is to protect the rights of women, how is that possible with their husbands in prison? If they have children under the age of 18, who will take care of their education, health, financial and other needs? The woman will not be protected but instead be vulnerable to more abuse.
3. The Bill does not provide the victimised woman any additional benefits in terms of her rights in marriage and divorce.
4. Since the Bill says that triple talaq is cognizable and non-bailable, married Muslim man become vulnerable target as policemen  can arrest and investigate the accused with or without the complaint from wife or any other person.
5. Divorce is a civil matter and making Triple Talaq a criminal offence is disproportionate to criminal jurisprudence. The Supreme Court declared Triple Talaq as invalid and did not ask the government to make it a penal offence. Thereby criminalizing the Triple Talaq goes against the spirit of the Supreme Court judgement.

Way ahead:

The legislation brings India at par with other Muslim majority states including Pakistan and Bangladesh. This was long overdue for a country that has taken pride in its adherence to the principles of secularism, democracy, and equality. Personal laws of other religious communities, Hindus and Christians, have gone through renditions to address some concerns relating to gender equality in matters of inheritance and polygamy. Despite the gains, gender equality does not permeate all aspects of civil law. This legislation presents an opportunity to put in place a civil code that steeped in equality—across faiths and gender.