It has been more than 18 months since the Supreme Court of India pronounced its judgment in the case of Shayara Bano v. Union of India, holding the practice of Triple Talaq (also known as Talaq-e-biddat) as unconstitutional and violative of Article 14. Find the best divorce lawyer in Indore if you have been a victim of triple Talaq. In the operative part of the judgment, the majority opined that the legislature must also pass a law in this regard as soon as possible.
In furtherance of the same, a bill called as the, ‘The Muslim Women (Protection of Rights on Marriage) Bill , 2018 is pending in the Rajya Sabha, the legislation is far from being enacted any time soon, predominantly because of the upcoming central elections in 2019.
When the Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced, even though the lower house passed it, the upper house strongly opposed it and did not allow it to become a law. As a result, the government in power had to pass an ordinance. Since the ordinance had come to expire, the Hon’ble President of India, recently in February 2019, promulgated the second ordinance regarding the same.
The main points of opposition to the previous bill are enumerated as under:
- Marriage is a subject matter of civil laws and imposing penal punishments for the same is a little too unfair on the accused. The quantum of three years has also been criticsed to be too severe.
- Since the bill allows the offence to be reported by, ‘anyone’, there is scope for a lot of wrongful advantage to be taken of the same.
- Moreover, since the offence is non-bailable, the accused husband will be estranged even if a complaint had been filed against with mala fide intention, out of sheer vengeful spite.
- The bill contains no provisions for maintenance of the wife and the kids. Once the husband has been imprisoned, he won’t possibly be able to look after his family, leaving his family estranged.
- Just like there have been several instance of the misuse of the laws prohibiting dowry demands, there exists a major possibility for a similar misuse of the provisions criminalizing triple talaq.
Most of these oppositions have been dealt with because the Bill of 2018 contains the following salutary provisions:
- The offence is bailable, but a condition precedent is that the court must have heard the wife upon whom triple Talaq has been pronounced.
- The offence is compoundable if the aggrieved wife so desires.
- The offence is cognizable, but, only if the complaint has been filed by the wife upon whom talaq-e- biddat has been pronounced or someone on her behalf related to her by blood or marriage.
- It has a provisions for maintenance of the wife by the accused husband. Even when he is in prison, this could be done by way of his assets and other properties.
Even though the Bill of 2018, as it currently stands does not contain most of provisions that were opposed in th 2017 Bill, still the Congress (the opposition) is adamant that it shall not allow the bill to become a law even after the opposable provisions have been done away with. Their main argument is that since the Bill was never referred to a Standing Committee of the Parliament, they do not think it right to go ahead with the enactment of the law. Also, they believe that, even after the revisions, the bill still has a lot of provisions, which are against the basic spirit of the constitution.
However, the current opposition to the bill are unfounded. There are many civil subject-matters which invite penal punishments in case of violation and triple Talaq is not the first practice related to matrimonial aspects to be criminalized. Practices like Sati and dowry are the prime examples were aspects of civil ties have been criminalized. The main intent of the Apex Court and the legislature behind the penal provisions is to produce a deterrent effect. Also, just because there exists a possibility of misuse does not mean, the entirety of the legislation should not be enacted. The prospects of misuse cannot overpower the benefits of the legislation, rescuing women from harsh situations.
Moreover, the court has not interfered in the religious matters because unlike the other two forms of talaq, talaq-e-ehsan and talaq-e- hasan; talaq—e-biddat is not warranted by the Quran. Many muslim women groups have also openly supported the action of the Supreme Court. With the modifications being brought about to the erstwhile bill, there seems no reason why the 2018 bill must not be passed, other than possible political motives, keeping in mind that the 2019 elections are not far.