On Thursday, the central government passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017 – popularly known as the Triple Talaq Bill. The Bill seeks to protect the rights of married Muslim women from instant divorce in the form of triple talaq. Under Islamic law, if a man utters ‘talaq’ three times, the marriage comes to an instant end.
Muslim women and woman’s rights activists have been fighting to abolish this practice for several decades now. This Bill aims to address their demands. However, the current form of the Bill is contentious at best.
There are three major issues with the Bill.
The first is that it aims to criminalise the act of triple talaq. Now, the court has already declared the practice as void, which means a man can no longer divorce his wife by saying talaq three times. So, while it does not have any legal bearing, the person pronouncing it can be jailed for three years and will have to pay a fine.
Marriage under Islamic law is purely a civil contract between two adults. As Indira Jaisingh, senior advocate, pointed out, “A marriage being a civil contract must follow the procedure which is civil in nature”.
So why is the government bringing in a criminal procedure for a contract that is purely civil?
Second problem: Under Islamic law, a marriage is purely a contract (unlike in Hindu and Christian laws e.g). ITT is an attempt to terminate the contract. Imprisoning someone for just pronouncing ITT violates Article 11 of the ICCPR https://t.co/vBFghyCBMd
— Alok ಪ್ರಸನ್ನ कुमार (@alokpi) December 28, 2017
Several Muslim women have spoken out against the criminalisation of triple talaq. “We have given our memorandum to a Muslim forum of MPs that we do not at all support criminalisation and it is our demand that the Bill be forwarded to a standing committee,” said Hasina Khan, the founder of Bebaak Collective that fights for women’s rights. “The Bill is likely to take Muslim society backwards, since it goes against the struggles of women who have crossed community barriers to express their distress. Among other things, the Bill also threatens to jeopardise the conversation around polygamy, unilateral talaq, unequal inheritance rights and other anxieties faced by Muslim women.”
The second major issue is that it recognises triple talaq as a cognisable offense. This means that if a police officer receives a complaint, without waiting for the magistrate’s order or without getting prior permission from the magistrate, the officer can initiate the investigation process and put the man behind bars.
This has raised the fear of Muslim men becoming soft targets – they can be thrown in jail for three years based on anybody’s complaint.
There are also problems with the technicalities of the Bill. Since the Supreme Court has already declared the practice of triple talaq as void, it raises the problem of maintenance.
Since the divorce has not come through, the couple is still technically married. Who then can take care of the wife and kids? How can he pay for their maintenance if he is in jail without a job or a salary?
Not a problem but the provisions of the Bill relating to maintenance and custody are utterly superfluous. Someone in jail can hardly claim custody of the children and Section 125 of the CrPC already exists for maintenance of a married woman. https://t.co/9W4a0bsEp7
— Alok ಪ್ರಸನ್ನ कुमार (@alokpi) December 28, 2017
If a husband gives triple talaq to his wife and is jailed for three years, how will the woman make ends meet and look after her children?” asked Asma Zehra, a senior member of The All India Muslim Personal Law Board.
The government has also been criticised for trying to push the Bill. Several parties opposed the Bill's introduction, including the All India Majlis-e-Ittehadul Muslimeen (AIMIM), whose chief Asaduddin Owaisi alleged that the Bill "does injustice to Muslim women," violates the Right to Freedom and that Muslims were not consulted in its drafting.
Moreover, the Bill has also faced flak for not taking into confidence women’s groups before being presented in Parliament.
Ayesha Kidwai, Professor of linguistics at Jawaharlal Nehru University, expressed her surprise that a Bill dealing with women’s rights has not been discussed with women’s groups. According to her, the Bill is “intended to fuel a culture of fear, of the state being able to enter your home and be able to incarcerate Muslim men”.