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Tuesday, July 17, 2018

Instant triple talaq Bill deferred, penal clauses offer room for give-and-take

After the session concluded, Ghulam Nabi Azad, Leader of Opposition in Rajya Sabha, offered to agree to the penal provisions in the Bill, provided it is insulated from outside interference and has a mechanism for subsistence allowance.

Written by Manoj C G , Ravish Tiwari , Shalini Nair | New Delhi | Updated: January 6, 2018 7:12:02 am
elections wins under Narendra Modi PM Narendra Modi with BJP chief Amit Shah

As the winter session of Parliament drew to a close Friday and the fate of the Bill to criminalise instant triple talaq hung in the balance, the matter of ring-fencing penal provisions in the Muslim Women (Protection of Rights on Marriage) Bill emerged as the central issue for some give-and-take before the next session to break the stalemate between the ruling BJP and the Opposition over the Bill.

After the session concluded, Ghulam Nabi Azad, Leader of Opposition in Rajya Sabha, offered to agree to the penal provisions in the Bill, provided it is insulated from outside interference and has a mechanism for subsistence allowance.

The proposed law, which makes talaq-e-biddat a “cognizable and non-bailable offence”, has provisions of “imprisonment for a term which may extend to three years and fine” for any Muslim man who divorces his wife by uttering talaq three times in quick succession. It also provides for subsistence allowance to Muslim women and custody of minor children as “may be determined by the magistrate”.

Read | Govt accuses Congress of stalling Triple Talaq Bill

“We don’t have any problem with sending the person (who resort to instant triple talaq) to jail if such a step proves to be a deterrent. But to make it cognizable…” He indicated that the penal provision be reworked only to allow “the aggrieved party”, and not a “non-aggrieved party”, to lodge a complaint because this would rule out potential misuse of the law.

Objecting to current provisions in the Bill on criminalising talaq-e-biddat, senior lawyer and Congress Rajya Sabha member Abhishek Manu Singhvi suggested that the legislation stands to benefit if it has a provision that grants the aggrieved party a “clear right to withdraw criminal complaint and/or to settle/compound”.

Read | Govt to blame for impasse in Rajya Sabha over triple talaq Bill, says Congress

“The Congress rightly believes that criminalisation is highly inappropriate, unnecessary, and in fact achieves the opposite of that which is intended. There is no question of deal-making. We genuinely believe that had it been referred to a select committee, improvements would be brought about. These include, but are not limited, (a) to provision of specified subsistence allowance; (b) clear right to withdraw criminal complaint and/or to settle/compound them; (c) some element of wilfulness or mental element which appears to be missing currently. At the moment, the language allows you to accuse without a mens rea,” Singhvi told The Indian Express. He too said that another improvement in the Bill could be allowing the wife to be the only complainant in the matter so as to prevent misuse of the law.

These suggestions do not appear to take away the soul of the BJP’s political commitment to legislate penal provisions against the practice of instant triple talaq. It will require only a tweak in one of the clauses of the Bill. “The government is committed to protect the rights of Muslim women. We want everyone to come forward constructively to pass this legislation,” BJP Rajya Sabha member Bhupender Yadav said after the session ended.

The issue is going to surface again when the House takes up legislative business during the Budget session, starting January 29. While both sides agree with the Supreme Court ruling that set aside instant triple talaq as illegal, their political battle is over the content and political intention of the legislation.

Moreover, when the House meets again at the end of the month, the government and the Opposition will also spar over the motion to send the legislation to a select committee, on whether the motion of this session is still alive.
With the numbers in Rajya Sabha in its favour at the moment, the Opposition is confident to get the approval to send the legislation to the select committee if its current motion remains alive next session. With the government wary that the Opposition-dominated select committee could recommend dropping the criminalisation provision altogether, both sides may need to negotiate a settlement over clauses on criminalisation.

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