Three months after the Supreme Court set aside the centuries-old practice of instant triple talaq or talaq-e-biddat in which Muslim men divorce their wives by uttering talaq three times in quick succession, the government has taken the first step to consider a legislation that will make triple talaq a criminal offence. A Bill to this effect is likely to be tabled in the winter session of Parliament.
“The government is contemplating making talaq-e-biddat a criminal offence. Very serious consideration is being given by the government,” a senior government functionary said Tuesday.
A committee of ministers has been constituted to finetune the legislation, the official said. The committee comprises Home Minister Rajnath Singh, External Affairs Minister Sushma Swaraj, Finance Minister Arun Jaitley, Law Minister Ravi Shankar Prasad and Minority Affairs Minister Mukhtar Abbas Naqvi.
On August 22, in a landmark 3-2 verdict, three of five judges on a 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 by then Chief Justice of India J S Khehar and Justice S Abdul Nazeer, while underlining the primacy of Muslim personal law, 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.
Sources said that recurrent reports of the practice continuing among Muslims despite the Supreme Court judgment spurred the decision to bring in a law with punitive measures.
A source in the government said: “There have been reports of a number of divorces by way of talaq-e-biddat happening even after the Supreme Court verdict. This could be because of lack of knowledge among Muslim husbands of the the apex court decision. It could also be because of lack of deterrent punishment for the act of talaq-e-biddat.”
“In spite of advisories to members of the community against this archaic practice, there seems to be no decline in the practice of divorce via talaq-e-biddat. In a recent incident of talaq-e-biddat, it has been reported that an AMU professor divorced his wife through WhatsApp and SMS and that the wife approached police,” the source said.
The government suspects there may be many such unreported instances of instant triple talaq elsewhere in the country.
Once a law is in place, the Muslim clergy will have no role in cases of talaq-e-biddat and women can directly approach police for redressal. As of now, police are helpless because no action can be taken against the husband in the absence of punitive provisions in law.
“The government’s endeavour to bring a suitable legislation/amending existing penal provisions will be a step forward to this end. It is expected to go a long way in deterring Muslim husbands from divorcing their wives and empowering Muslim women who find themselves helpless against the practice of talaq-e-biddat,” the source said.
Senior advocate Anand Grover, who argued on behalf of petitioner Bhartiya Muslim Mahila Andolan, said: “I will be able to speak only when I see exactly what the government proposes to bring. There is no real reason to bring a law as the Supreme Court has already outlawed instant triple talaq. If they are bringing a more consolidated Act, then it may be worth looking at. Otherwise, I don’t know what meaning this will have.”
Zakiya Soman, who was a petitioner in the case, said: “We have already written to all women MPs, the Minority Affairs Minister and the Minister for Law and Justice, on the need to codify Muslim law across all matters, in accordance with the Quran and the Constitution. So we want a comprehensive law, like it is for personal affairs of Hindus and Christians. If this deals with just triple talaq, that is okay. But it is limited, we want a proper, more complete law.”
Jamiat Ulama-i-Hind general secretary Mahmood Madani, who had told reporters after the Supreme Court verdict that the practice would continue regardless of the legal position, said: “We will have to see what the government brings. There are so many problems facing the nation, community and our men and women folk. Is this the priority the government has decided to mark as one that needs a law?”
Lawyer M R Shamshad, who had argued for the All India Muslim Personal Law Board, said: “Once the Supreme Court has put the quietus on triple talaq which came into effect immediately, it can be considered single talaq which can be reconciled. Criminalising it will ensure that the marriage ends. There are more abandoned wives living as destitute. They cannot even re-marry. Where is the government?”
Lawyer Dushyant, who along with eight prominent citizens had submitted a draft ‘Progressive Uniform Civil Code’ to the Law Commission in September, said: “The announcement is welcome but insufficient. On the one hand is this government’s strange obsession with saving Muslim women. On the other is the complete indifference to issues which affect women across religions, gender and sexual orientation such as marital rape, rights of queer people to get married and raise children etc.”