Recently, Muslim Women (Protection of Rights on Marriage) Bill, 2019, which criminalises ‘Instant triple talaq‘ among Muslims, was passed. The Act makes all declarations of instant triple talaq void, illegal and punishable with imprisonment of up to three years for the husband.

 What is instant triple talaq?

Instant triple talaq or talaq-e-bidat  is a practice under which a Muslim man can divorce his wife by  uttering “talaq” three times. It is prevalent among India’s Muslim community majority of whom follow the Hanafi Islamic school of jurisprudence. This mode of divorce is not universal among Muslims across the world.  Many other Islamic schools of thought prefer the divorce process to be deferred, in many cases over a period of three months. Many predominantly Muslim countries, including Pakistan, have banned triple talaq.

 Shah Bano Case:

In 1978, a Muslim woman, Shah Bano, filed a petition in Supreme Court demanding maintenance from her divorced husband which gave her divorce through instant triple talaq. She filed a claim for maintenance for herself and her children under the Code of Criminal Procedure, 1973. The Supreme Court provided her relief but it was reversed by the Rajiv Gandhi government under the pressure of Muslim fundamentalists, an act that earned much criticism.

Shayara Bano Case:

Shayara Bano was married for 15 years. In 2016, her husband divorced her through talaq–e-bidat. Ms Bano argued before the Supreme Court of India that three practices – triple talaq, polygamy, and nikah halala (the practice requiring women to marry and divorce another man so that her previous husband can re-marry her after triple talaq) –were unconstitutional. Specifically, she claimed that they violated several fundamental rights under the Constitution of India namely, Articles 14 (equality before the law), 15(1) (prohibition of discrimination including on the ground of gender), 21 (right to life) and 25 (freedom of religion). In this case, the Court focused solely on the practice of triple talaq. In August 2017, the Court, by a majority set aside the practice of triple talaq. This judgment became the foundation of the present Act passed by Parliament.

Important provisions of the Bill:

• 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. 
• Making it an offence, the government says, will deter further resort to triple talaq, and provide redress for women in the form of a subsistence allowance and custody of children, besides getting the erring husband arrested.
• The offence is compoundable (eligible for compromise) by the Magistrate upon the request of the woman (against whom talaq has been declared).
• To check misuse, the police takes cognisance only if the complaint is filed by the aggrieved woman or any of her relation by blood or marriage. The Bill also provides for bail by a magistrate but only after hearing the aggrieved woman.

  Some core concerns are:

• How can a man provide subsistence allowance while he is imprisoned?
• A civil law has been changed into criminal law.
• It has been argued by the Bill’s proponents that dowry harassment and cruelty towards wives are treated as criminal offences even while the marriage subsists.
• The Bill does not provide the victimised woman any additional benefits in terms of her rights in marriage and divorce.

 Conclusion:

Having taken a step towards gender equality, the government should build on the gains to address the gender inequities that persist in civil and personal laws across all the religions. Also, the Law Commission must be asked to review all personal/civil laws to ensure that these do not violate the Fundamental Rights guaranteed to all citizens by the Constitution. Finally, this landmark should be seen as a stepping stone towards the goal of a Uniform Civil Code that was envisaged by the founding fathers of our Constitution.