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Tripal Talaq Bill 2018

Tripal Talaq Bill 2018

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  • GS 2 Governance || Vulnerable Sections || Religious Minorities
  • GS 2 Governance || Vulnerable Sections || Women

 Why in News?

  • The Lok Sabha has passed the Muslim Women (Protection of Rights on Marriage) Bill, 2018, also known as, Triple Talaq Bill.
  • Bill makes instant triple talaq void and illegal. It seeks to make this practice a punishable offense with imprisonment of up to three years.

 Background

  • Talaq means Divorce.
  • There are three types of Talaq in Islam:
    • Talaq- e- Ahsan: Once the husband pronounces talaq, there has to be a three-month iddat period to factor in three menstrual cycles of the woman. This time is meant for reconciliation and arbitration. During this period, if any kind cohabitation occurs, the talaq is considered revoked.
    • Talaq –e-Hasan (Proper): Talaq is to be pronounced three times in the successive periods after menstrual cycles. The husband has to make a single declaration of Talaq and then await for another menstrual cycle to pronounce another declaration. The first and second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, the words of Talaq become ineffective.
    • Talaq-e-Biddat: Allows men to pronounce talaq thrice in one sitting, sometimes scrawled in a written talaqnama, or even by phone or text message. Thereafter, even if the man himself perceives his decision to have been hasty in hindsight, the divorce remains irrevocable. It is a disapproved mode of divorce.
  • Triple talaq judgment pertains to the third type of Talaq i.e. Talaq-e-Biddat.

Talaq-e-biddat is not mentioned in Quran or Hadith and is not as per Sharia law. It has been banned by law in more than 20 Islamic countries, including Pakistan,Bangladesh, Tunisia, Indonesia, Algeria, Iran, Iraq etc.

 Timeline

  • 2016:
    • Shayara Bano approached the court demanding that the talaq-e-biddat pronounced by her husband be declared as void.
    • Supreme Court sought assistance from the Attorney General on pleas challenging the constitutional validity of “triple talaq”, “nikah halala” and “polygamy”
  • 2017: All India Muslim Personal Law Board (AIMPLB) told the Supreme Court that the issue of triple talaq falls outside the judiciary’s realm and that these issues should not be touched by the court.
  • Aug 2018: Supreme Court set aside the practice of instant triple talaq saying it was violative of Article 14 and 21 of the Indian Constitution.
  • Sep 2018:
    • Government proposed Muslim Women (Protection of Rights on Marriage) Bill in the Parliament and sought to make triple talaq a punishable offence under the law.
    • The bill could not be passed in the parliament due to lack of majority of the ruling party in the upper house, ultimately the Government decided to bring in ordinance on the matter under Article 123.

 Provisions of the Bill

  • The Bill makes all declarations of talaq, including in written or electronic form, to be void (i.e. Not enforceable in law) and illegal.
  • Definition:
    • It defines talaq as talaq-e-biddat as practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
  • Offence and penalty:
    • The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person without warrant.)
    • The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.
  • Bill provides that the Magistrate may grant bail to the accused only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
  • The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared).
    • Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute.
  • Allowance:
    • A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount will be determined by the Magistrate.
  • Custody:

A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.

 What are the anomalies in the Bill?

  • Misreading of the Supreme Court Judgement
    • The Supreme Court, earlier, invalidated the triple talaq practice by calling it arbitrary and
    • Logically, the pronouncement of talaq-e-biddat does not dissolve the marriage, and this is the law of the land under Article 141.
    • Contradictorily, the Bill presumes that the “pronouncement” of talaq can instantaneously and irrevocably dissolve the marriage.
    • The bill thus seems to be misreading the SC’s judgment on talaq.
  • Offence
    • After rendering talaq-e-biddat inoperative, considering it a cognisable and non-bailable offence seems illogical.
    • It raises questions about the validity of the law that criminalises an act after conceding that it does not result in a crime.
  • Post-divorce issues
    • Making provisions on post-divorce matters like subsistence allowance and the custody, when the pronouncement (instant talaq) it does not dissolve the marriage appear baseless.
    • Expecting a man, who is incarcerated for 3 years and with less chance to earn a livelihood, to pay allowance is illogical.

 Significance of the Bill

  • The bill will protect the rights of Muslim women and will boost the possibilities of bringing in a Uniform Civil Code in the future.

 Additional Info

  • Fundamental Rights:
    • Article 14: Equality before law – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
    • Article 21: Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law
  • Uniform Civil Code:
    • UCC aims to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen.
    • Article 44 of the Directive Principles expects the state to apply these while formulating policies for the country.

 Practice Questions

  • What are the key features and criticism of the Muslim Women (Protection of Rights on Marriage) Bill?
  • The triple talaq Bill is a classic example of executive-legislative-judicial collaboration towards ensuring social justice. Critically analyze.