“Men and women have roles – their roles are different, but their rights are equal”
The lower house of parliament on Thursday passed the Muslim Women (Protection of rights on Marriage) bill 2018. With 245 votes in favor and 11 votes against, the bill aims at criminalizing the Islamic practice of “Triple Talaq”. The big question is whether the bill will muster support in the upper house as well.
What is Triple Talaq?
Triple Talaq is a practice where a Muslim man can divorce his wife by simply stating “talaq” three times in the oral, written or electronic form. This is an irrevocable divorce which is permissible in the Islamic law. The All India Muslim Personal Law Board (AIMPLB) holds that for the Hanafis, who make up more than 90% Sunnis in India, the practice is a matter of faith which has been followed for over 1,400 years.
Shah Bano Case: A Milestone
In April 1978, a 62-year-old Muslim woman Shah Bano filed a petition in court demanding maintenance for herself and her five children under Section 123 of the Code of Criminal Procedure, 1973. This provision puts a legal obligation on a man to provide for his wife during the marriage and after divorce as well if she isn’t able to earn for herself. However, the husband challenged the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the iddat period after the divorce. The India Muslim Personal Law Board supported the husband and contended that courts cannot interfere in the matters that are laid out under Muslim Personal Law.
In 1985 the decision was passed by the Supreme Court of India that the Code of Criminal Procedure, 1973 applies to all Indian citizens, irrespective of their religion. This case was considered as a milestone as it questioned the general practice of deciding cases on the basis of religious personal law and also emphasized the need to implement the Uniform Civil Code. This case also addressed the issue of gender equality in matters of religious principles.
However, after the verdict, the Rajiv Gandhi Congress government, passed the Muslim Women (Protection on Divorce Act), 1986. This law overturned the verdict in the Shah Bano case and enforced that the maintenance period can be made liable for the iddat period only.
Why the Law?
Many Muslim women have highlighted the misuse of the instant divorce by men, some cases of husbands divorcing their wives via text messages and phone calls have surfaced. Activists have claimed that there is a need to re-evaluate this practice on grounds of gender equality and secularism.
The Supreme court had last year ruled that the law that allowed the practice was unconstitutional, despite this the practice had persisted. A total of 389 cases of triple talaq were reported in 2017. Between January and August, another 229 cases were reported. This indicated that a bill was required even after the verdict of the Supreme Court.
The Bill will make Triple Talaq a criminal offense, with a jail term of up to three years for the husband.
Which other countries have banned Triple Talaq?
The practice has been already banned in the neighboring countries of Pakistan, Bangladesh, and Sri Lanka. The other countries where instant Talaq is banned are Turkey, Tunisia, Algeria, Malaysia, Jordon, Cyprus, Egypt, Iran, Iraq, Brunei, the UAE, Indonesia, Libya, Sudan, Lebanon, Saudi Arabia, Morocco, and Kuwait.
Bill passed by Lok Sabha with amendments
There were three new amendments introduced in the Triple Talaq bill. The revised bill was drafted after the initial draft got stalled in Rajya Sabha in January and the opposition members suggested some changes. The amendments made were:
• Only the victim or her blood relatives can file the case against her husband. As per this new amendment, a crime of triple talaq will be cognizable only if the victim or her blood relatives’ files the complaint. A complaint filed by any other agency or outside entity will not be cognizable. In the initial draft, any person could have initiated criminal proceedings.
• The case can be dropped only if the victim decides to do so.
• The magistrate can release the husband only after hearing the wife. The crime still remains non-bailable but a magistrate can grant bail after hearing the victim. Provision of bail by the magistrate was one of the demands of the opposition parties.
Shortcomings of the Bill
Though the bill aims at empowering Muslim women, there are various aspects that need to be considered before the bill is passed in the Upper house.
The Bill allows the woman as well as anyone related to her by blood to file the complaint. However, there is no provision for the relative to seek the consent of the woman before filing a complaint. This might become a problem in the case of inter-religious marriages of Muslim men with a woman of another religion.
Also, no economic and socio-legal support is provided by the government as per the bill to the woman, children, and other dependents, when the accused husband is put behind bars.
There is also a question on the number of years of imprisonment being 3 years. Other crimes like Causing death by rash or negligent act (IPC Sec 304A), Rioting (IPC Sec 147), Injuring or defiling place of worship with intent to insult the religion of any class (IPC Sec 295) etc are all punishable by two years in jail or fine or both.
The Road Ahead
When the government brought the bill in the earlier Parliament session, it went through the process of being passed by the Lok Sabha and then getting stalled in the Upper House. With both sides playing politics over the issue, the bill is likely to meet the same fate and would likely result in the government issuing a fresh ordinance once the winter session ends on January 8 2019.
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