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Wednesday, December 11, 2019

Criminal Abandonment

Those opposing law on triple talaq must look closer at Muslim countries

Written by Madhavi Goradia Divan | Updated: December 28, 2017 12:00:43 am
Triple Talaq, Triple Talaq Bill, Muslim Divorce law, Triple Talaq Punishment, Supreme Court, Triple Talaq verdict, Indian Express, India news There is abundant precedent from the Muslim world, to show that illegal divorce can be criminalised.

The All India Muslim Personal Law Board (AIMPLB), which strongly opposed the abolition of triple talaq (talaq e biddat) in the Supreme Court earlier this year, recently passed a resolution to oppose the tabling in Parliament of the Muslim Women (Protection of Rights on Marriage) Bill, 2017. The Bill seeks to reinforce the SC’s ruling which struck down triple talaq by a majority (3:2). The minority judgment too condemned triple talaq but thought it best for Parliament to legislate on the subject. The 2017 Bill makes triple talaq a penal offence punishable with a three-year term. The Bill also affords victims of triple talaq subsistence allowance and protects their custody rights over children.

The AIMPLB contends that the Bill is contrary to Shariah and an attempt by the government “to snatch the right of divorce from men”. There are others who oppose the Bill, including women’s groups who campaigned against triple talaq. They argue that a practice which concerns Muslim marriage, treated in law as a civil contract, cannot be criminalised.

There is abundant precedent from the Muslim world, to show that illegal divorce can be criminalised. In Pakistan and Bangladesh, with whom we share a common history, marriage and divorce are governed by the Muslim Family Laws Ordinance, clause 7 of which reads: “(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife. (2) Whoever contravenes the provision of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both. [Bangladesh: 10,000 taka]”.

Not only is triple talaq invalid in these countries but a man who divorces his wife without notice to the Arbitration Council is punishable with imprisonment. A man who resorts to triple talaq would be liable to punishment. The contention that illegal divorce cannot be penalised or that it is contrary to the Shariah appears to be without basis. Several other countries, including the vast majority of Arab states, have outlawed triple talaq. In Egypt, for example, where triple talaq is impermissible, a man who divorces his wife in violation of the prescribed procedure (which requires registration), is punishable with imprisonment. In Tunisia, a man who marries another woman before an earlier marriage has not been lawfully dissolved is liable to imprisonment.

The above are examples from either theocratic states or countries which have a large Muslim population. The position in India, where there is no state religion, cannot be worse. There is also little merit in the argument that triple talaq, being merely the violation of a civil contract, cannot be penalised. Once triple talaq stands de-recognised, it falls entirely outside the realm of the civil contract of marriage. Therefore, there is no legal bar on penalising it. As to the quantum of punishment, whether it is proportionate to the offence and whether it can be compounded at the instance of the wronged wife are matters that must be ironed out. It is also necessary to protect the woman’s right to continue to reside in her matrimonial home, notwithstanding triple talaq.

While the Statement of Objects and Reasons that accompanies the Bill states that instances of triple talaq continue after the SC’s ruling, the larger issue relates not to actual instances of triple talaq but simply the man’s power to terminate the marriage at a whim that dangles like a sword over a wife and keeps her under a perpetual, perhaps subconscious fear. It draws the lines for her in the marriage and dictates her choices even outside of it. With the dread of triple talaq gone, many more women might be confident enough to assert themselves, both in the marriage and in the world outside. An empowered woman is enormously empowering for her children and that can only help integration with the mainstream.

Undoubtedly, a long-ensconced social structure will gradually alter, as will patriarchy have to be dismantled, bit by bit. This is true of all communities, though, for Muslim women, it is particularly overdue. The Bill is only one step forward. Women’s groups say they need a more comprehensive reform of Muslim law impacting women. But that must wait till the SC hears the challenge on polygamy, other forms of talaq and nikah halala still pending before it.

The writer, an advocate in Supreme Court, represented the government in the triple talaq case

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