IAS Target

The Muslim Women (Protection of Rights on marriage) 2nd ordinance-2019

Triple Talaq, also known as immediate divorce, talaq-e-biddat, and talaq-e-mughallazah, is a form of muslim divorce which has been adopted by Muslims in India, especially believers of Hanafi Sunni Islamic schools of jurisprudence.

Supreme Court judgments about Triple Talaq:

In 1985, the Supreme Court granted Shah Bano, a 62-year old lady the right to alimony from her spouse or husband. But in 1986, the executive passed the Muslim Women (Protection of Rights on Divorce) Act which weaken the positive impact produced by the Shah Bano case. Again, in 2001, in the “Danil Latifi and Anr” versus Union of India case, the Supreme Court sustained the validity of the Shah Bano judgment. A five-judge bench of the Supreme Court announced the triple talaq against constitutional values in a majority 3:2 judgment, as of August 2017. This was the aftermath of an appeal filed by Shayara Bano, whose husband of 15 years had divorced her via a letter where he pronounced talaq 3 times to declare the divorce as annulled.
The Muslim Women (Protection of Rights on Marriage) 2nd Ordinance, 2019 was proclaimed on February 21, 2019. Note that two similar Ordinances had been proclaimed January 2019 and September 2018. This Ordinance is effective from the date of the first Ordinance that is September 19, 2018. The Ordinance makes all declaration of talaq, including in electronic or written form, to be null (i.e. not enforceable in law) and illegal. It states talaq as “talaq-e-biddat” or any other similar form of talaq pronounced by a Muslim man resulting in irrevocable and immediate divorce.

The features of the bill

  • Penalty and offence:
    The Ordinance makes a talaq declaration a cognizable offence, attracting up to 3 years incarceration with a fine. (A cognizable offence, where a police officer can arrest an accused person without a warrant). The offence will be cognizable only if details relating to the offence are provided by:
    • any person related to her by marriage or blood
    • the married woman (against whom talaq has been proclaimed),

  • The Ordinance provides that the Magistrate can grant bail to the accused. The bail may be granted only after hearing the woman (against whom talaq has been declared), and if the Magistrate is contented that there are valid reasons for granting bail.

  • The offence may be compounded by the Magistrate upon the plea of the woman (against whom talaq has been declared). Compounding is the procedure where the two sides agree to settle the dispute and stop all legal proceedings. The conditions and terms of the compounding of the offence will be decided by the Magistrate.

  • Allowance:
    A Muslim woman, against whom talaq has been announced, is entitled to demand support and subsistence allowance from her husband for her dependent children and herself. The amount of the maintenance and allowance will be decided by the Magistrate.

  • Custody:
    A Muslim woman, against whom talaq has been pronounced, is entitled to get custody or guardianship of her minor children. The procedure of custody will be decided by the Magistrate.

Triple Talaq: An unfair and discriminatory practice

  • As per the law, only Husband can talaq his wife by pronouncing talaq three times and wives cannot divorce husbands by the means of triple talaq. As per the Muslim Personal Law (Shariat) Application Act 1937, women have to move a court for divorcing her husband.
  • This law permits any Muslim man to legally divorce his wife by uttering the word talaq three times in written, oral, or more recently, electronic form.

Important information about Triple Talaq

  • National Commission of Women (NCW) expressed Triple talaq is a “highly misused” practice. Triple talaq impose social and mental distress on women and it is against constitutional provision of equality and violates women dignity. So, Government should abolish "Triple Talaq" practice and shield the rights of Muslim women.
  • The ‘triple talaq’ has been scrap by more than 20 Muslim countries including Pakistan.
  • The majority of divorce cases takes place among Muslim women i.e. four times than other religion
  • SC has announced custom of triple talaq unconstitutional, void and illegal and not safeguarded by Article 25 (Freedom of Religion).

Some people favour Triple Talaq practice on following grounds. These include:

  • Muslim man may divorce their wife through Triple talaq, because there are unnecessary and long delays in courts in divorce cases
  • The percentage of divorce among Muslims community is less than the Hindu community even less than all other communities.
  • Muslim Clergy asserted that, there is no objection among muslim women against Triple Talaq, and they had received forms from Muslim women across the country, sustaining triple talaq
  • Questioning of government intent where Santhara Practice in Jain community continued while targeting muslims because of ruling parties beliefs
  • Triple Talaq is not an immediate divorce, but concern parties have 3 months to settle dispute
  • Government agencies not conducted any survey to analyze the ramifications and imapct of triple talaq
  • AIMPLB had also prepared a Nikahnama under which women can set terms and conditions for the husband that could protect women rights, at the time of the Nikah.

Arguments and facts againts Triple Talaq

  • In Triple Talaq muslim husband divorce wife at will and arbitarily, without any solid reason.
  • Triple Talaq breach article 14 -the rights of equality and obstacle in women’s empowerment.
  • Now, technology becomes a new channel where even email, chat, SMS etc enough to divorce.
  • Various Islamic countries banned this custom including autocratic and military countries. So why the biggest secular and democratic countries still follow this practice which create disparity between female and male.
  • Triple Talaq infringes the basic feature of the constitution (i.e. violation of fundamental rights)
  • Abolition of Triple Talaq will aid to bring a uniform civil code which mentioned in the Directive principle of state policy (DPSP).
  • The Supreme Court has also announced that this custom is unconstitutional and not shielded by fundamental rights (Article-25) which regards the freedom of religion. In December 2016, the Allahabad High Court had also said that no personal law board was above the constitution.

Conclusion

Abolition of triple talaq, would weaken the position of Muslim women instead of social justice. Instead of unilateral action the government should discuss all participants and take their suggestions before passing the law. At the same time question arises on government intention when the Supreme Court (SC) already declared Triple Talaq is unconstitutional practice.
The original Bill elaborated that the offence would be non-bailable, which has been reduced to a bailable offence in the recent version of the bill. The woman is entitled to receive from her husband a living allowance for her and her dependent children, as highlighted above. Triple Talaq (divorce) is not a good custom and does not get support in any educated and civilized society. But the government should pay attention to all aspects and discuss all parties so that the intended purpose to provide rights to Muslim women and justice could be fulfilled.