The Triple Talaq Bill, passed by parliament recently, became a law after the president’s assent last week. The new law – The Muslim Women (Protection of Rights on Marriage) Act, 2019 – makes talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband void and illegal; it also makes the practice of instantaneous divorce a cognisable and non-bailable offence with three years of imprisonment. The Triple Talaq Bill could not make it through the Rajya Sabha earlier this year during the first term of Modi government, although it was passed by the Lok Sabha. The bill was again passed by the Lok Sabha on July 25 amid a walkout by several opposition parties, including the Congress and Trinamool Congress. Its passage in the Rajya Sabha on July 30 was helped by the absence of 56 Opposition MPs.
A day after the president’s assent to the bill, Samastha Kerala Jamiyyathul Ulama, one of the biggest religious organisations of the Sunni Muslim scholars and clerics in Kerala, moved the Supreme Court (SC) challenging the constitutionality of the triple talaq law, saying its only objective is to “punish Muslim husbands”. Seeking to declare the new act as unconstitutional, the petition has urged the SC to stay the operation of the law. In a related development, the All India Muslim Personal Law Board has also said that it is likely to challenge the Triple Talaq law in the SC after the board takes a final call on the issue soon.
Triple talaq in one sitting is not permitted in Islam, although its prevalence in India among Muslims – like dowry and child marriage among other communities, both banned under law – can’t be denied. In a landmark judgement in August 2017, the SC declared the utterance of triple talaq “null and void”. This means triple talaq has no legal validity under law and therefore, despite the utterance of triple talaq, the marriage continues. Thus the question: if triple talaq has no legal effect, what is the need to make it an offence when it is not recognised by law? Notably, the law is the first instance where criminal provisions have been brought into matters of marriage and divorce among Muslims, while in every other religion they are still a civil matter. This makes the law discriminatory against Muslims and violates their fundamental rights. What the law also does is instead of protecting women, it criminalises Muslim men.
Ever since the Triple Talaq Bill was promulgated as an ordinance one and half years ago, it’s been severely criticised by activists, women’s groups and Opposition parties for glossing over the actual process of providing justice to Muslim women. The most valid criticism has been that the law is silent on maintenance: it neither addresses nor concerns itself with the financial security of the woman and her children. Another valid criticism has been that imprisoning a husband leaves the wife at the mercy of her matrimonial family, which could turn hostile towards her for putting the husband behind bars. The law could also lead to break up of marriage, as imprisonment of husband could make reconciliation difficult. In other words, the law neither saves the marriage, nor gives justice to the woman, leave alone empowering her.
Divorce is not a crime under law. What is a crime is circumventing the procedure for divorce prescribed by law. Triple talaq was an easy but cruel way for a Muslim husband to end the marriage. Getting it declared null and void by the SC was a result of a long and sustained campaign by Muslim women. It is quite possible that an ill-intentioned husband may still take recourse to the invalid procedure to end his marriage, just as harassment for dowry is not an uncommon practice among Hindus.
Such a divorce is illegal and amounts to abandonment. This is why the government justified that a law is needed to end the practice. But this does not address the problem of illegal abandonment: a Muslim husband can still get rid of his wife without uttering talaq three times and will face no criminal sanction. He may not even go through proper divorce proceedings, thus leaving the helpless wife to her own fate.
Separation and abandonment of wives are not uncommon in India; they happen in all religions and do not end in proper divorce. In such cases, none of the protections envisaged under the law are available for the abandoned wives. This is because India’s family laws allow for divorce but they also allow husbands to walk out of marriages without completing the formalities of divorce. According to 2011 census, there are 2.37 million or 23.7 lakh women who identify themselves as “separated”.
Of these, the overwhelming majority are Hindu women – 1.9 million or 19 lakh; the number of Muslim “separated” women are 0.28 million or 2.8 lakh. It is left to one’s imagination whether the “separated” women voluntarily separated from their husbands or were abandoned unilaterally. It is sheer surprise that the government does not care to provide justice to all these “separated” women but is keen to provide gender justice to only Muslim women.
Destitution and desertion are cruel realities in India which we refuse to accept and confront. Indian women of all communities and religions continue to be discriminated against and denied their rights. Therefore, all women, irrespective of religion, need justice and empowerment. Instead of passing the Muslim Women (Protection of Rights on Marriage) Act in its current form, the government should have enacted a law for the protection of all Indian women: Indian Women (Protection of Rights on Marriage) Act. That would have been true gender justice.
The writer is an independent Mumbai-based senior journalist.