Introduction:
Each religion has its customs and traditions, which govern all aspects of life. Marriage and divorce practices of any religion are extremely important aspects of any culture, as they ensure the future maintenance of the culture. Muslims have long-standing traditions, especially in matters regarding marriage and divorce. However, there is one tradition that was banned in the recent session of the Parliament.
Triple Talaq or talaq-e-biddat is a Muslim tradition for instant divorce, where a Muslim man can divorce his wife, simply by communicating the word “talaq” thrice in a row, in oral, written or electronic form (in contemporary times). It is based on the Muslim Personal Law (Shariat) Application Act of 1937. Although contentious, it is a legally valid practice. However, it is not mentioned in the religious text of Islam: The Quran.
There have been many debates regarding this issue, on matters of morality, justice, gender equality, and much more. The practice of Triple Talaq was declared invalid and unconstitutional in 2017, in the famous case of “Shayara Bano v. Union of India & Ors.”. This was considered a landmark judgment in the history of India, and “women activists believe it is a step forward in the empowerment of Muslim women in India.”[1] However, it was apparent that a simple ban on the practice wouldn’t be enough for the empowerment and safety of Muslim women. Recently, the Minister of Justice, Mr. Ravi Shankar Prasad, introduced a bill in the Lok Sabha which would officially ban this practice of triple talaq, and criminalize it.
About the Bill
The Muslim Women (Protection of Rights on Marriage) Bill aims to promote gender equality and abolish the age-old practice which compromises the safety and security of women. It announces talaq a criminal offense, imposing up to 3 years imprisonment and a fine. Additionally, bail can only be granted to the accused after a magistrate hears the woman’s statement and finds reasonable grounds to grant bail. It also enables women to receive both custody of minor children, as well as an allowance from her husband in the case of a talaq, as determined by a magistrate.
The Bill was first introduced in 2017, but failed in the Rajya Sabha of the previous Modi government. However, it was introduced again in the current Parliament. This time, it was passed again in the Lok Sabha on 25th July 2019 and was approved in the Rajya Sabha on 30th July, 2019. The Bill was approved by the President on 31st July 2019, replacing the Ordinance against triple talaq, which was passed on 21st February, 2019.[2]
Merits of the Bill
There are several arguments in favor of the Bill, and subsequently, in support of the Modi Government that passed and enacted the Bill. Amit Shah, in his article in Times of India, states that “I am sure Modiji will now go down in history as a social reformer in the league of Raja Rammohan Roy and Ishwar Chandra Vidyasagar, who waged struggles to improve the lot of women.”[3]
The Bill is a huge step towards women empowerment. The Bill empowers women and safeguards their interests, as it not only gives them a say in the matter of divorce, but also gives them several advantages in the case of a divorce. Firstly, women are enabled to gain custody of any minor children, in the case of a divorce. Secondly, they are entitled to an allowance from the husband after the divorce. This is contrary to the earlier practice where the father would get custody of any children. Thirdly, it ensures that women are heard, since it guarantees that a woman’s case will be heard by the magistrates in their locality. Fourthly, it acts as a deterrent, as there have been several cases of triple talaq, even after the practice was deemed invalid and was banned. Lastly, the very fact that it is criminalizing and preventing a male-dominated practice, reflects the intent to safeguard and promote gender equality.
The practice of triple talaq was against the spirit of articles 14 and 15(1) of the Indian Constitution, which guarantees the right to equality and freedom from discrimination on basis of religion (amongst other criteria) respectively, since women had almost no say in the matter. However, the new Bill gives women a voice in the divorce, in addition to several other forms of compensation. Furthermore, banning such a practice pushes couples towards seeking a divorce in a cooperative manner, where both the man and the woman would have an equal say in the matter.
The Bill is advantageous, as it abolishes and criminalizes a practice that is not part of Muslim Law. Triple Talaq is a Muslim tradition but is not stated anywhere in the religious text of Islam: The Quran. This shows a contrast since the practice is based on Sharia law, which is derived mainly from the Quran. Thus, it shows that the entire practice has been built by a male-dominated presumption that it is valid, and much like many other aspects of religion, this too is a part of the evolution of a society that has corrupted religion itself. Additionally, there are 23 Muslim dominated countries in the world, including Pakistan, Egypt, Bangladesh, and many more, that have banned the practice of Triple Talaq. Thus, the Bill is a big step in India’s position in the world, which aims to protect Muslim women’s rights. As a country that is growing rapidly in the contemporary world, the criminalization of this immoral and unconstitutional practice is a huge accomplishment for India.
The process of Triple Talaq is an excessively simple one, since the man has to simply utter 3 words to instantly divorce his wife. This is problematic, since it gives men all the power to end the marriage, on terms that favor them. Additionally, it goes against the spirit of Muslim law. Muslim law states that marriage is a contract between two people, and thus, there should be a proper procedure that should be followed in the event of a divorce. The Bill prevents the ending of marriages for frivolous reasons, thus upholding the spirit of Muslim law. Furthermore, it takes away the unfair advantage that men had during this type of divorce, and instead provides benefits to the women.
Demerits of the Bill
As is the case with all laws and acts, the Bill and the Modi Government have also faced a lot of criticism. While the Bill is advantageous in many ways, it does have flaws that cannot be ignored, while critically analyzing the Bill.
Probably the biggest disadvantage of the Bill, is the criminalization of the process. The process of Triple Talaq was deemed invalid, in 2017, in the famous Supreme Court Case: Shayara Bano v Union of India & Ors. In this case, 3 judges deemed the practice unconstitutional and invalid, and the other 2 judges deemed it constitutional, but ruled that it be banned. Thus, it does not justify the government’s resolve to criminalize a practice that is already invalid and punish men for performing an invalid act.
There are disadvantages to this as well. Firstly, it is well established that criminalization can often have the opposite of the intended effect of deterrence. Secondly, it eliminates any probability of the couple reconciling, due to the man being imprisoned. Additionally, it may also prevent the man from being able to pay the compensation to the woman, as instructed. This is an undesirable shift in the essential socio-cultural fabric of a nation that still reveres the institution of marriage, worthy of every effort to reconcile the partners involved therein. Lastly, it gives the practice of divorce itself a criminal appearance. While divorce can otherwise be a peaceful process, which comes under civil contract, this drags this practice into criminal law, thus giving the practice an excessively criminal image.
While the Triple Talaq process goes against Articles 14 and 15(1) of the constitution, the Bill banning it also goes against this right to equality and freedom of religion. This is because the Bill criminalizes only the Muslim practice of Triple Talaq. This means that only Muslim men are punished for divorce through their culture, while men from other religions who divorce their wives according to their religious customs are not considered. Thus, it goes against the secular nature of the Indian Constitution in this regard, as it only criminalizes Muslim traditions, and overlooks other harmful religious customs. Additionally, both this Bill, as well as the Shayara Bano judgment, “did not ban other forms of Muslim divorce that favor men, only the instant kind.”[4]
Triple Talaq is an age-old practice that has been a part of Muslim tradition for several centuries now. It is a part of Muslim culture, and there have been arguments that the State shouldn’t interfere in such personal matters involving religion. This act of banning Triple Talaq hurts the religious sentiments of several Muslims in the country. Furthermore, it goes against the secular nature of the country, which is to accept all religions, along with their cultures, traditions, and practices.
While the Bill does safeguard the rights of women who are victims of Triple Talaq, it does not take into consideration women who are abandoned by their husbands. The Bill has a clause which punishes Muslim men who divorce their wives through triple talaq, but doesn’t take any action against those who abandon their wives. This is illogical, as the criminal action against users of triple talaq discourages men from divorcing their wives, but instead may push them towards abandoning their wives. This makes the situation worse as women who have been abandoned go through a much worse psychological situation, leaving them desperate and helpless.
Conclusion
As seen in the above arguments, there has been a lot of controversy regarding the passing of the Triple Talaq Bill. While analyzing the Bill from different perspectives and critically examining arguments on both sides, I found myself agreeing with many of the arguments. However, I felt that I agreed more with the arguments against the Bill. While I agree with many points in support of the Bill and cannot ignore those arguments, I feel that the disadvantages of the Bill outweigh the advantages.
Instead, I feel that the government could have acted differently. Firstly, I feel they could have instead included triple talaq under the Protection of Women from Domestic Violence Act, which would have provided women with necessary relief without unnecessarily criminalizing the process. Secondly, since the goal is women empowerment and safeguarding their rights, I feel that they could have aimed to alter all forms of divorce, instead of just triple talaq. Lastly, I feel that the issue of women being abandoned could also have been dealt with in the Bill.
Thus, while the Bill has its fair share of merits and demerits, I am personally against the Bill. The element of criminalization of the perpetrator of the act, the man, in this case, reeks of an agenda to gain mileage by mixing religion with politics. While its advantages cannot be ignored, I feel that the government could have handled the situation better, and could have arrived at an amicable situation that would truly benefit and empower women.
References:
[1] Rashid, O. (2017, September 2). Who is Shayara Bano, the triple talaq crusader. Retrieved from https://www.thehindu.com/news/national/who-is-shayara-bano-the-triple-talaq-crusader/article19611402.ece
[2] Admin. (2019, August 29). Triple Talaq Bill – UPSC Notes (GS II) On The Triple Talaq Issue In India. Retrieved from https://byjus.com/free-ias-prep/triple-talaq-bill-upsc-notes/?utm_campaign=IAS_Dynamic_pune&gclid=Cj0KCQjwrIf3BRD1ARIsAMuugNv9Hv-yiNTB1P22l1YMHu1hkQFMt0_38JOSbLolljpHhXR-EgGpKv4aAlMSEALw_wcB
[3] Shah, A. (2019, August 3). Modi, great reformer: Enactment of triple talaq bill by India’s Parliament corrects a historic wrong. Retrieved from https://timesofindia.indiatimes.com/blogs/toi-edit-page/modi-great-reformer-enactment-of-triple-talaq-bill-by-indias-parliament-corrects-a-historic-wrong/
[4] The Economist. (2017, August 24). India bans a Muslim practice of instant divorce. Retrieved from https://www.economist.com/asia/2017/08/24/india-bans-a-muslim-practice-of-instant-divorce
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