Inconsistencies in the Triple Talaq Bill

SHABIR AHMAD
Let us begin by understanding the concept of marriage and divorce in Islam.
Islam places a particular emphasis on marriage. In fact, marriage is considered as a sacred institution in Islam. That is why, celibacy or bachelorhood is discouraged. Islam says marriage completes the faith of a Muslim. But at the same marriage is also a contract between a husband and a wife and just like any other contract; this contract can also be broken that means divorce is allowed in lslam. But what are the Islamic ways of granting divorce. Let’s have a brief understanding on that. There are four ways or means of granting divorce. These are:
1. By mutual consent: a husband and wife married for some time can mutually decide to end this relationship and terminate their legal contract of marriage and divorce is formalised.
2. Khulla: Khulla is something which is initiated by wife. It is pertinent to mention here that in Islam the right to grant divorce is available only with husbands. This right is not available with a wife. A wife can only seek divorce from her husband and if the husband agrees then the divorce is formalised and if the husband disagrees, the wife can approach Shariah Court or any other normal court.
3. Third way of divorce is talaq. In Islam, there are three types of talaq.
A: Talaq-e-Hasan: Here, the husband pronounces the word ‘Talaq’ only once and waits for 30 days for arbitration and reconciliation and if none of them take place, the husband pronounces word ‘talaq’ again after expiry of 30 day period and wait for another 30 days. If neither arbitration or reconciliation happened in 30 days , the same process takes place third time and after the expiry of 90 period , the legal contract of marriage is terminated and divorce is formalised. After the  90 day period, the talaq cannot be revoked.
B: Talaq-e-Ahsan: This form of talaq is considered as the most pure form of talaq. Here, the husband pronounces the word ‘Talaq’ once and waits for 90 days. During the 90 day period, arbitration and reconciliation can happen if not after 90 days divorce is formalised.
Now, there is another variant of talaq called talaq-e-biddat. The word biddat has been derived from an Arabic word Biddah which means innovation. This form of talaq was not in existence during the life span of Prophet(PBUH) but was later innovated. This form of talaq is  the bone of contention and  amost controversial one. Here, the husband pronounces talaq thrice in a single utterance like Talaq! Talaq! Talaq!,  and the divorce is formalised. Here, the husband doesn’t require to wait for 90 day period for arbitration and reconciliation. That is why, it is known as instant triple talaq and it is this talaq-e-biddat which was in question in Supreme Court.
This Instant triple talaq is considered as discriminatory against Muslim women. Talaq was given to a wife through WhatsApp, Skype, postal letter, or a phone call. In this form of talaq, there is no scope for arbitration and reconciliation. This form of talaq is predominantly banned in Egypt, Bangladesh, Indonesia and in other Gulf countries. Pakistan banned this form of talaq in early 1960’s but surprisingly it was not banned in India because of vote bank politics. Whenever there is a talk that this Instant triple talaq is discriminatory and hence should be banned in the country, the so called Muslim clerics and politicians would say that lslam is in danger.
Few years ago, Shayara Bano along with other four Muslim women who were subjects of instant triple talaq, approached the  Supreme Court of India with the plea that instant triple talaq should be declared as unconstitutional as it violates the fundamental rights of a Muslim woman. The  Court accepted their plea and set up a constitutional bench of five members headed by the CJI to decide whether instant triple talaq should be banned, declared as unconstitutional or not. The composition of this particular bench was unique. It consisted of a Muslim judge, a Hindu judge, Parsi judge, a Christian judge and a Sikh judge.
During the course of verdict, two judges namely CJI Justice Khehar and justice Nazeer said that instant triple talaq cannot be banned and they put the ball in the court of parliament and said let parliament make a law to declare instant triple talaq will no longer continue as the valid form of divorce, they don’t have any issue. These judges said that religion is not a matter of logic rather it is a matter of faith. Since, instant triple talaq is a part of Muslim Personal Law which deals with the religion of lslam therefore, it cannot be banned as right to religion is a fundamental right. These two judges also said that they will stay the practice of instant triple talaq for a period of six months. The other judges namely Justice R.F.Nariman and U.U. Lalit said that instant triple talaq is unconstitutional because it is arbitrary and it violates the right to equality against arbitrariness provided under Article 14 of fundamental rights The last and fifth judge of the bench justice Kurian Joseph said that instant triple talaq is un -lslamic because in lslam there are two pre-requisites for granting divorce viz, arbitration and reconciliation, but in instant triple talaq or talaq-e-biddat, there is no scope for that and once it is pronounced it cannot be revoked, hence it violates the condition of two essential pre-requisites. Therefore, instant triple talaq is Un-Islamic.
Therefore, two judges decided not to interfere in instant triple talaq while as other three decides that instant triple talaq should no longer continue on account of unconstitutionality of two judges and un-lslamicness of third judge. Therefore, the Supreme Court of India with the majority of three judges of five member bench set aside instant triple talaq and is no longer as valid form of divorce.
Last year, government framed a bill on the subject and presented it in the parliament. The bill was passed in Lok Sabha only and failed to get node in Rajya Sabha as government lacked majority in Rajya Sabha. Then, ordinances were promulgated and now there is a bill pending in the parliament again regarding ‘The Muslim Women(Protection of rights on Marriage) Bill, 2019. Let’s see whether the bill is passed in Rajya Sabha this time or not.
Let me provide a critical analysis about some of the provisions of the Bill. The Bill has declared instant triple talaq as cognizable offence which means police can arrest the husband who has pronounced triple talaq on his wife without any warrant issued by the Magistrate. Only the married women against whom the talaq has been declared or any other her relative by blood or marriage can file a case. The offence attracts three years imprisonment along with fine. But contrary to this, there are other heinous crimes that have lesser punishment than instant triple talaq. When a husband who is accused of Instant triple talaq is given three years imprisonment along with fine , he is being compared with those individuals who are accused of serious offences like sedition, insulting religious beliefs or rioting.
The husband who is accused of Instant triple talaq can be granted bail by the Magistrate only after hearing the woman. The offence can be declared as compoundable on the request of the women against whom talaq has been declared, which means both husband and wife can mutually have a settlement even if the case is filed and then case can be withdrawn.
A Muslim woman against whom talaq has been declared is entitled to seek subsistence allowances from her husband for herself and her minor children. The amount of allowances will be determined by the Magistrate. But contrary to this, if a husband gets three imprisonment, how can he provide allowances to her wife and minor children when he is in jail? As this form of talaq is prevalent among the lower strata of the Muslim community, the husband needs to earn to provide allowances but if he is in jail, how can he provide these allowances? Therefore, the provision of allowances of the Bill is un-implementable.
The bill also talks about the custody of the minor children once the divorce is formalised, but if the husband pronounces instant triple talaq on his wife, the marriage is still valid and legal as per Supreme court verdict. Then how can this provision be determined when divorce is not formalized?
Further, it very difficult even impossible for the prosecution to prove in the court of law the offence of instant triple talaq as it is usually being done orally.
At last it can said that there are many unintended consequences of the bill such as many Muslim men, just like Hindus, instead of divorcing their wives can simple abandon them for fear of prosecution. There are also some inconsistencies in the Bill as well.

—The author is a Socio-political Observer and a Freelance Writer who writes regularly on various  issues. He can be reached at: sahilshabir@rocketmail.com