CRIMINALIZING INSTANT DIVORCE (TRIPLE TALAQ): A STEP FORWARD TOWARDS GENDER EQUALITY & UCC
* Team LegalMines
Keywords: Triple talaq, Talaq-e-biddat, Instant Divorce, Gender equality, Women empowerment, Uniform Civil Code, Women’s dignity,
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An act of pronouncing talaq (divorce) thrice by words spoken or written by a Muslim husband to his wife and consequential break up of nuptial bond is commonly known as triple talaq or instant divorce. The triple talaq becomes irrevocable immediately without following the procedure of Iddat.
In Islamic jurisprudence divorces have been described as most odious among permissible things. Under Islam divorces become final after following a procedure (called Iddat) which takes at least three months. The triple talaq has always been considered an act that is biddat (innovative malpractice) and sinful and held to be haram (prohibited) under Islam and has been punishable being criminal act. It is notable that in the first case of triple talaq, Caliph Umar had ordered the offender to be flogged publicly.
The prevalence of Triple Talaqs (instant divorce or “talaq-e-biddat”) amongst Muslims have no religious foundation and many countries, including Islamic nations, have already banned the malpractice of triple talaq. Despite of this it has been in vogue in India, the world’s largest democracy, for so many years after independence. Egypt was the first country to make law to ban triple talaq in the year 1929. The triple talaq is already banned in more than 20 countries including Pakistan, Bangladesh, UAE, Qatar Malaysia etc. and had been never a good practice from the gender equality point of view as mandated under the Constitution of India, the Hon’ble Supreme Court of India in Shayara Bano Case (2017), while championing the tenets of gender equality as envisioned under the Indian Constitution, held the anti-Islamic and anti-women archaic medieval practice of Triple Talaq unconstitutional. However, despite of declaring the practice of Triple Talaq unconstitutional by the SC, the menace of triple talaq was in vogue[1] due to lack of Legislative mandate.
Considering the above and being one of the balancing wheels of the Indian democracy, the Parliament (others two are the Judiciary and the Executive) brought legislative provisions through Ordinance[2] and finally, the Ordinance culminated in an enactment being the Muslim Women (Protection of Rights on Marriage) Act, 2019[3] (popularly known as Triple Talaq Act). By passing of the Act, the arbitrary right of triple talaq has vanished as an instrument of oppression and torture.
The Act was necessary to protect women’s dignity and honour and their empowerment. The passing of the said Act is in consonance with the basic structure of the Constitution as reflected in its Preamble which talk of securing, inter alia, equality of status………..assuring the dignity of the individual……..”. Further, Article 15(3) empowers the State to make any special provisions for women……… . Moreover, though Article 44 is not juticeable it obligatory upon the State to take steps to create an environment conducive to the enactment of UCC and the MWPRM Act has championed the cause of Uniform Civil Code (UCC) as enshrined under Article 44 of the Indian Constitution.
Mandates of the MWPRM Act, 2019:
- Void & Illegal: The pronouncement of instant triple talaq (ITT) by Muslim husband either spoken or written or in electronic form or in any other manner shall be void and illegal.
- Imprisonment/ Fine: The Muslim husband who pronounces ITT shall be punished with imprisonment upto three-years and shall also be liable to fine.
- Cognizable Offence: The offence punishable under this Act is cognizable.
- Who shall be informant?: The information as to commission of ITT is given to an Officer-in-Charge of a police station by a married Muslim women upon whom talaq is pronounced, or any person related to her by blood or marriage.
- Compoundable Offence: The offence shall be compoundable at the instance of the aggrieved Muslim women, with permission of the Magistrate.
- Subsistence Allowance: The Muslim woman is entitled to receive from her husband subsistence allowance as determined by the Magistrate.
- Children Custody: The aggrieved woman is entitled to get custody of her minor child in event of pronouncement of triple talaq as determined by the Magistrate.
Whether the Act required?
Certain sections of society plead that passing of this Act was not required as the Supreme Court has already declared the act of triple talaq unconstitutional in Sayara Bano’s case (2014). However, as per report more than 345 cases happened during the first three months after the judgment. So the tenability of the said view is somewhat baseless though it is not asserted that after enactment of the MWPRM Act, the Act of triple talaq will vanish. Moreover, the Constitution of India abolished untouchability in 1949 but later on the Parliament realized that the constitutional provisions on its own could not eradicate the evil and then laws were passed to make the practice a punishable offence.
Another view against the Act is that criminalization of the triple talaq is an exaggerative step and that exiting provisions of IPC would have been better served the need to check triple talaq instead of passing a new enactment. This view is also not very sound as there has been no specific provisions under the IPC on this aspect and if we go for IPC, 1860 that too would be an action under the criminal law.
Also, it is pleaded that the act of criminalizing triple talaq is an intrusion against religious practice and causing sense of insecurity. In this regard it is pertinent to take note that the practice of triple talaq is not a assertion of democratic and religious right rather it was an enormity which robs Muslim women of their dignity causing catastropy to many families and children. On the point of feeling insecure on the front of ‘community identity’, it is mentioned that projecting individuals own fears and insecurities as community insecurity is simply ignorance that yield no outcome except fears and consequent violence.
To conclude, though the object of the MWPRM Act, 2019 is very clear to promote and ensure gender equality amongst Muslim women, the role of the Legislature has not come to an end just after passing of the Act. The age-old malpractice of triple talaq can not be vanished overnight or in a recent time unless the provisions of the Act are complied with by the law enforcement agencies and judiciary to demonstrate deterrent effect to the defiants. Further the social groups are also expected to sensitize the concerned stakeholders to abide by the provisions of the said Act to promote gender equality and women empowerment. Moreover, the ban on triple talaq is not merely judicial and legislative mandate rather it is the duty of the Indian citizens under Article 51-A(e) to renounce practices derogatory to the dignity of women. So, it is patience and marathon endeavours which will tell the success story of realization of the MWPRM Act in the coming time as mere passing of the said Act from the Parliament is not enough to check the incidents of triple talaq like what we are facing with the Dowry Prohibition Act and the Prevention of Child Labour Act which are yet to eliminate or substantially reduce the practice of dowry and child labour as the case may be. Further, endeavour should be made by the government in majority to ensure the quality of legislation as importantly as the pace of legislating by strict scrutiny of the legislative provisions in consonance with the constitutional norms to avoid any backfire in the form of declaring any provisions of the Act as unconstitutional.
It is to be noted that the constitutional validity of the MWPRM Act, 2019 has been challenged before the SC by Samastha Kerala Jamiathul Ulama which pending.
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[1] . As per a report, there were 574 cases reported since 2017 even after the judgment of SC for ban on triple talaq and after the promulgation of Muslim Women (Protection of Rights on Marriage) Ordinance, 2019 banning triple talaq. [“Gender Justice Vs. Destruction of Muslim Families in Debate”, Times of India dated 31.07.2019, p.6]
[2] . Muslim Women (Protection of Rights on Marriage) Bill was introduced in Lok Sabha for the first time 28th December 2017 but could not be passed through Rajya Sabha. Then the government brought the first Muslim Women (Protection of Rights on Marriage) Ordinance, 2018. Again the bill was passed in Lok Sabha on 17th December, 2018 but could not pass from the Rajya Sabha. The second Muslim Women (Protection of Rights on Marriage) Ordinance, 2019 was passed on 12.01.2019. The Ordinance was brought third time on 03.02.2019. The Bill was again introduced on 21.06.2019 but could not be passed due to completion of tenure of the 16th Lok Sabha. When the 17th Lok Sabha was constituted, the Bill was passed from Lok Sabha on 25th and from Rajya Sabha on 30th July 2019.
[3] . The Act got assent of the President on 30.07.2019.
