Moving to make instant triple talaq or talaq-e-biddat a criminal offence, the government is considering, among changes in existing laws, amendments to The Muslim Women (Protection of Rights on Divorce) Act, 1986.
Commonly known as the Shah Bano Act, the 1986 law was enacted by the Rajiv Gandhi government under pressure from the Muslim clergy to overturn the Supreme Court ruling in the Shah Bano case. This law allowed, in line with Muslim personal law, maintenance to a divorced woman only during the period of iddat, or three menstrual cycles/three lunar months after divorce.
Officials said that changes to The Muslim Women (Protection of Rights on Divorce) Act, 1986 was “one of the options discussed” and a final decision would be taken by a Group of Ministers (GoM) constituted to draft a law to make triple talaq a criminal offence.
According to officials, the ‘preamble’ of the Shah Bano Act will have to be re-drafted since the existing law applies only after the divorce of a Muslim woman. In August this year, the Supreme Court declared talaq-e-biddat as illegal. The draft legislation being enacted by the Law and Home ministries, officials said, will not only criminalise instant triple talaq but will also have provisions for imprisonment and fine or both for the offender.
Other than changes to the Shah Bano Act, the government is considering amendments to provisions of Section 125 Code of Criminal Procedure (order for maintenance of wives, children and parents) to provide further safeguards to Muslim women and their wards if they are abandoned via instant triple talaq, the officials said.
Sources said the proposal to bring amendments to the Shah Bano Act was discussed last week by the GoM headed by Union Home Minister Rajnath Singh. External Affairs Minister Sushma Swaraj, who was part of the deliberations, suggested amendments to the Shah Bano Act while Law Minister Ravi Shankar Prasad mooted suggestions to alter provisions of the CrPC and Indian Penal Code (IPC).
On August 22, the Supreme Court, in a landmark 3-2 verdict, “set aside” the centuries-old practice of instant triple talaq in which Muslim men divorce their wives by uttering talaq three times in quick succession.
Three of the five judges on the Constitution Bench — Justices Rohinton F Nariman, Uday U Lalit and Kurian Joseph — called the practice un-Islamic and “arbitrary” and disagreed with the view that triple talaq was an integral part of religious practice.
But the minority ruling of then Chief Justice J S Khehar and Justice S Abdul Nazeer underlined the primacy of Muslim personal law and said the practice enjoyed constitutional protection and was beyond the scope of judicial scrutiny. They were of the view that Parliament should consider an “appropriate” law to deal with the issue of talaq-e-biddat.
While divorce is a civil matter, government sources pointed out that the legislature was free to declare any unlawful/illegal offence, in this case triple talaq, as criminal. A senior government functionary said ‘non-maintenance of wife and children’ after triple talaq, declared illegal, can be legislated to invite penal provisions.
The move to consider amendments to the Shah Bano Act offers powerful political optics for the ruling BJP, which has been advocating a Uniform Civil Code.
The Shah Bano Act was enacted by the Rajiv Gandhi-led Congress government to overturn a Supreme Court order that sought to provide parity to Muslim women in maintenance after divorce. The law was brought in after strong protests from the Muslim clergy who said the Supreme Court order amounted to interference in their personal laws.
Once the law outlawing triple talaq is enacted, the Muslim clergy, government sources said, will have no role in cases of talaq-e-biddat and women can directly approach police for redressal. The ministerial committee, after its first meeting, felt that laws related to marriage like the Domestic Violence Act and the Dowry Act were prone to misuse and safeguards would be required in the new legislation.