The President of India recently gave assent to The Muslim Women (Protection of Rights on Marriage) Bill, 2019, better known as the Triple Talaq Bill, thereby criminalizing the practice of instant Triple Talaq. The law makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal. The Supreme Court in Shayara Bano case (2017) had declared the practise of Triple Talaq (talaq-e-biddat) as unconstitutional. However, the penal provision of the bill i.e. a Muslim husband declaring instant Triple Talaq can be imprisoned for up to three years is alleged to be disproportionate for a civil offence.

Body:

The Abolition of Triple Talaq is a great step towards gender equality due to:

• Triple Talaq goes against the constitutional principles of gender equality, secularism, right to life of dignity, etc. It goes against Article 14 (Right to Equality) and Article 15(1) which states that there shall be no discrimination against any citizen on the basis of gender, race, etc. and this kind of talaq is biased against the interests of women.
• According to a study, 92% of Muslim women in India wanted the triple talaq to be banned.
• It gave men the right to arbitrarily divorce their wives without any valid reason.
• The law provides the rights of subsistence allowance, custody of minor children to victims of triple talaq i.e. talaq-e-biddat.
• The Government held that 473 cases of Triple Talaq have taken place even after two years of judgement pronounced by the Supreme Court.
• The law has been placed as a deterrent to eradicate social evils. For example:
• Untouchability was abolished by the Constitution, but the continued practise of untouchability forced Parliament to enact the Untouchability (Offences) Act in 1955 and later renaming it as Protection of Civil Rights Act in 1976.
• To eliminate atrocities faced by women in domestic space, parliament enacted:
  • The Dowry Prohibition Act in 1961
  • Prevention of domestic violence Act 2005
• Triple Talaq is banned in more than 20 Islamic countries including Pakistan.
• The constitution of the country says that it shall strive to bring a uniform civil code for the entire country. Doing away with triple talaq will definitely be a step closer to the constitution-makers’ dream of having a uniform civil code for all citizens.
• Experts also opine that only the essential or integral features and aspects of a religion (article 25) are protected by the Constitution. Triple talaq was not an integral feature of Islam.

Issues with the law:

• 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.
• Religious groups infer the banning of a traditional practice sanctified by Sharia as interfering in the religious aspects of minorities.
• 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.
• 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.
• The Bill does not provide the victimised woman any additional benefits in terms of her rights in marriage and divorce.
• 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.

Way forward:

• 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.

Conclusion:

Terming Triple Talaq as unconstitutional as a step towards establishing uniform civil code (Enshrined in Article 44 of directive principle of state policy), but criminalising it goes against the ethos of Fundamental rights i.e. article 25 and 26 the freedom of religion. Triple Talaq has led to the subjugation of Muslim women even after 72 years of independence but its solution must come through coexistence rather than coercion.