History of Triple Talaq and Legislation

Context:

Five years after the Supreme Court’s five-judge Bench invalidated instant triple talaq in August 2017, the women petitioners continue to live a life of half-divorcees. 

• No arrests could be made for giving instant triple talaq as the Muslim Women (Protection of Rights on Marriage) Act, 2019 came into force long after pronouncement of instant talaq.

Relevance:

GS-II Social Justice

Dimensions of the Article:

1. History of Triple Talaq and Legislation
2. The Muslim Women (Protection of Rights on Marriage) Bill, 2019
3. Arguments favouring the bill
4. Arguments opposing the bill

History of Triple Talaq and Legislation

• The case dates back to 2016 when the Supreme Court had sought assistance from the then Attorney General on pleas challenging the constitutional validity of “triple talaq”, “nikah halala” and “polygamy”, to assess whether Muslim women face gender discrimination in cases of divorce.
• The Supreme Court later announced the setting up of a five-judge constitutional bench to hear and deliberate on the challenges against the practice of ‘triple talaq, nikah halala’ and polygamy.
• In 2017, the Supreme Court set aside the decade-old practice of instant triple talaq saying it was violative of Article 14 and 21 of the Indian Constitution.

The Muslim Women (Protection of Rights on Marriage) Bill, 2019

The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was tabled in the parliament for gender equality and justice, proposing to make the practice of instant triple talaq a penal offence.

Key provisions of the bill:

• The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
• It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.
• Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
• The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine. 
• The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
• The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared).
• A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children.  The amount of the allowance will be determined by the Magistrate.
• A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.

Arguments favouring the bill:

• Bill is needed so that even Muslim women also get equality on par with other Muslim men.
• Triple talaq adversely impact rights of women to a life of dignity and is against constitutional principles such as gender equality, secularism, international laws etc.
• The penal measure acts as a “necessary deterrent”
• It significantly empowers Muslim women.
• The practice of triple talaq has continued despite the Supreme Court order terming it void.
• The practice is arbitrary and, therefore, unconstitutional
• The law is about justice and respect for women and is not about any religion or community
• It protects the rights of Muslim women against arbitrary divorce
• Instant triple talaq is viewed as sinful and improper by a large section of the community itself.
• The fine amount could be awarded as maintenance or subsistence.

Arguments opposing the bill:

• Since marriage is a civil contract, the procedures to be followed on its breakdown should also be of civil nature only.
• Civil redress mechanisms must ensure that Muslim women are able to negotiate for their rights both within and outside of the marriage
• The mutual divorce provision is missing in the proposed law and needs to be debated.
• Some representatives have given it a political and religious color.

-Source: The Hindu