- What is Triple Talaq?
- Criticism of the Bill
- Argument against the penalization of triple divorce
- Hypocrisy of Triple talaq
- IT’s Input
- About the Triple Talaq bill
- What is Shah Bano’s case?
Narendra Modi government passed the “Triple Talaq Bill”
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- Triple Talaq Bill (TTB) has finally been passed by Rajya Sabha on july 30. Triple Talaq Bill was passed by Lok Sabha on july 28. Both the houses gives assent the Triple Talaq Bill. Under the Triple Talaq Law, practice of instant triple talaq will be void and illegal .
- Triple talaq is the practice under which a Muslim man can divorce his wife by simply uttering ‘talaq’ three times.It is prevalent among India’s Muslim community majority of whom follow the Hanafi Islamic school of law.
Criticism of the Bill:
- In cases of oral triple divorce given by husbands when no one other than the couple was present, it will be very difficult to find the proof. The Bill will lead to more divorces and abandonment.
- Criminal law should be used only as a last resort and only for the most reprehensible wrongs.
- The Triple divorce bill is an instance of the unnecessary invocation of criminal sanctions.
- India has decriminalized adultery, homosexuality and marital rape. Then why criminalized triple divorce.
- The Supreme Court declared triple divorce as invalid and did not ask the government to make it a penal offence, yet there is provision of offence in the bill.
- There have been just 473 cases of triple divorce in the last two years.
- Hence, the incidence of triple divorce is negligible and the issue was blown out of proportion for political reasons.
- Under the TT Bill, bail is at the discretion of the judge and thus, it is non-bailable.
- Moreover, the judicial discretion has been restricted by laying down that Triple Talaq can be exercised by the judge only after hearing the wife on whom talaq has been pronounced.
- The triple divorce is a ‘sin’ under Islamic law. Yet, it is set to be penalize this breach of religious morality through the instrumentality of criminal law.
Argument against the penalization of triple divorce:
- The bill give justification that Muslim countries too penalize triple divorce and hence there should be the provision of penalty in Triple divorce bill.
- The framers of the bill argue that the triple divorce is a sin under Islamic law, hence it can be penalized.
However, the critics say that Muslim countries serve as poor examples for gender-just laws. For example,
- Unlike Muslim men, in almost all Muslim countries, women cannot marry Christians or Jews.
- In some countries , woman must obey their husband and need his permission to work or go outside the home.
- In some countries, a rapist can escape punishment if he marries the victim.
- On the issue of custody of children and maintenance, laws in Muslim countries are regressive.
- Mothers can get the custody of a son and daughter only till they attains the age of 10 and 12 respectively.
- They punish adultery and apostasy with death.
Hypocrisy of Triple talaq:
- Triple divorce is a unique case where the law orders the orthodox Hanafi Muslim woman to continue in a relationship in which woman’s husband abuses her.
- This type of law undermines individual choice and autonomy.
- On one hand, the ‘Love Jihad’ philosophy does not allow the freedom to marry a person of one’s choice and on the other hand, Muslim women are forced to continue with same abusive husband who has given them instant triple divorce.
- The marriage contract must lay down that a husband can give divorce only with the consent of the wife.
- If he gives three unilateral divorces in one time, the dower amount (A widow’s share for life of her husband’s estate) should be increased to five times.
- In case of non-payment, a prison term would be justifiable as under civil law.
- This bill gives real freedom to Muslim women who were subjugated to exploitation and terror for no fault of theirs.
- However, the TTB is doing huge disservice to Muslim women as no husband on his return from jail is likely to retain the wife on whose complaint he had gone to prison, which will lead to more divorces and abandonment.
About the Triple Talaq bill:
- The bill will replace the 1986 Muslim Women (Protection of Rights on Divorce) Act.The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
Offence and penalty:
- The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person without warrant.)
- The Bill provides that the Magistrate may grant bail to the accused. The offence may be compounded by the Magistrate upon the request of the woman. (Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute.)
- Woman against whom such talaq has been declared can demand allowance from her husband for her and her dependent children.
- 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
What is Shah Bano’s case?
- In 1978, a muslim woman Shah Bano filed a petition in court.
- She had demanded maintenance from her husband who gave her divorced through talaq provision.
- Under Section 123 of the Code of Criminal Procedure 1973, Shah Bano filed a claim of maintenance for herself and her children.
- The section puts a legal obligation on a man to provide for his wife during the marriage and after divorce if she isn’t able to fend for herself.
- However, her husband contested the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the iddat period after divorce.
- Iddat is the waiting period, a woman must observe after the death of her husband or divorce before she can marry another man (usually three months).
- Supreme court said that the religion of the spouse has no bearing on whether providing maintenance for the spouse and children after the divorce and gave orders for maintenance to Shah Bano.
- The case was considered a milestone as it was a step ahead of the general practice of deciding cases on the basis of interpretation of personal law and also dwelt on the need to implement the Uniform Civil Code.
- In post-Shah Banu general elections of India in 1989, a huge number of Muslim women voters were dissatisfied by the government after it enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986 following that Supreme Court judgment.
- In Shayara Bano case in 2017, the supreme court held triple divorce/Talaq is arbitrary & unconstitutional.
- In 2017, the ruling party at Centre came out with a draft of the Muslim Women (Protection of Rights on Marriage) Bill.The bill was rejected two times by Rajya Sabha and finally approved recently.