Why the BJP's triple talaq bill is flawed

It is a product of the party's majoritarianism.

 |  4-minute read |   08-01-2018
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The Muslim Women (Protection of Rights of Marriage) Bill 2017 or the triple talaq bill is a vindictive outcome of the Supreme Court’s decision in the Shayara Bano case of last year. In the Statement of Objects and Reasons (SOR), the bill traces its moral authority to fulfil the Supreme Court’s decision that instant divorce (talaq-e-biddat) after three pronouncements was illegal.

The SOR says, “The judgment vindicated the position taken by the government that talaq-e-biddat is against Constitutional morality, the dignity of women and principles of gender equity guaranteed under the Constitution.” This, according to the SOR, was in contradistinction to the view of the All India Muslim Personal Law Board (AIMPLB), which wanted to issue advisories. The very wording of the SOR displays a sense of triumph against the Muslim community, a sort of posturing by the government over the Muslim community through the bill.

Contrary to SC

The government’s reading of the Supreme Court judgment is hopelessly misleading. The minority view (of ex CJI JS Khehar and Abdul Nazeer) was that instant talaq is a recognised Islamic practice and it was for the Parliament to intervene if it wanted to. The need for government legislation follows from here. The split majority struck down instant talaq for different reasons. One view was that it was contrary to Islamic law (Kurien), the other that it violated constitutional equality (Nariman–Lalit).

The government’s flowery reference to constitutional morality and gender "equity" is based on this latter minority view because the second majority judgment simply declared it contrary to Islamic law. The bill emanates from the imagination of the government to (a) showcase Muslim law as unjust and (b) instrument a careless and vindictive law to break up Muslim marriages.

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Why law is wrong

Once the court declared instant talaq to be illegal and unconstitutional, the simple declaration in Clause 3 outlawing any form of instant triple talaq was enough: “Any pronouncement of talaq by a person upon his wife, by words either spoken or written or in electronic form or in any other manner whatsoever is illegal.”

At first blush, Clause 3 gives the broad impression that “talaq” itself is illegal. Of course, “talaq” in the definition clause limits the bill to talaq-ebiddat or all forms of instant talaq. A clever presentation — too clever. But after the SC declaration that instant talaq is illegal, this meant the marriage subsists with all the obligations of Islamic law.

Here the bill takes an “ugly turn”. It assumes that although instant talaq is illegal, but with its pronouncement, the marriage itself has broken down requiring remedial action. It gives the right to subsistence allowance and custody of children to the wife similar to divorce proceedings when marriages break up.

The bill assumes that the illegal declaration of talaq by the husband virtually breaks up the marriage requiring questions of subsistence allowance to be adjudicated by a Magistrate. In other words, the declaration of instant talaq accelerates a marriage breakdown when the real purpose of the Supreme Court and, supposedly the bill was that the marriage remains alive and well.

But the bill regards the very utterance of instant divorce as a kind of breakdown or judicial separation requiring magisterial intervention on maintenance and custody. This is the evil effect of the bill to break the marriage rather than cement it.

Why “subsistence allowance”? If instant talaq is illegal, the wife is lawfully wedded with full privileges of a wife. “Subsistence allowance” is a step down — legislative cruelty denying the wife and children total rights. How absurd can this be? A fully wedded wife not legally divorced by her husband will be entitled to only adjudicated subsistence for herself and her children. This part of the bill is antigender, anti-SC judgment, anti-common sense and directed to break up marital relations. The fully wedded wife would run off to a Magistrate for what happens in judicial separation or divorce for relief. Husband and wife are put in legal attrition

Finally, the criminality provisions are provocative and irresponsible. Clause 7 means that if the husband utters the instant talaq words, he would commit “an offence which is cognisable and non-bailable”. This means he can be arrested by police and remain in investigative custody unless the Magistrate intervenes. Is this designed to cure the marriage or perpetuate discord? Everything illegal is not a crime. Making it criminal, distorts the relationship between parties.

Opposition role

The BJP uses its majority in Lok Sabha to do what it likes. On December 20, 2017, Union law minister Ravi Shankar Prasad answered that after the SC judgment, 99 cases of instant talaq were reported. Is that enough to punish the Muslim community, causing legal quarrels between husband and wife and sending the husband to jail for up to three years. The debate was sparse. The Opposition quiet. So what if they were in a minority, the Opposition should have torn apart the whole bill (not just the penal provisions).

In the Rajya Sabha, the Opposition put up a fight. But gradually it also caved in — agreeable to compromise on the pen provision not being cognisable and non-bailable. The bill was not passed in the Winter session. But it should be circulated for public opinion or, at least, sent to a select Parliamentary committee as demanded by some members. This is an unfair bill produced by BJP majoritarianism.

(Courtesy of Mail Today.)

Also read: Bulldozing triple talaq bill in Parliament is unconstitutional and disservice to Muslim women

Writer

Rajeev Dhavan Rajeev Dhavan

Supreme Court lawyer.

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