The Union Cabinet recently gave the nod of consent to three significant amendments to the Muslim Women Protection of Rights on Marriage Bill, also known as the triple talaq Bill. These amendments are intended to serve as additional safeguards, curbing the potential misuse of the Act. This bill, once enacted, will consider instant triple talaq a criminal offence, punishable by imprisonment of up to three years.
Details of the Provisions
The fundamental concept of the offence of instant triple talaq remains intact in these amendments. While it is considered non-bailable, the accused, upon being arrested, will have the option to apply for bail before the trial. However, this is possible only after the magistrate has conducted a hearing with the wife.
Additionally, the offence has been identified as compoundable. This implies that should the wife and the husband express a desire to reconcile their differences, the magistrate can compound the offence on agreeable terms and conditions.
The complaint, under such circumstances, can be filed solely by the victim (wife) or blood relations. Furthermore, the magistrate, at his discretion, can grant bail under certain terms and conditions. The woman has the right to approach the magistrate seeking subsistence allowance for herself and her minor children. She can also request custody of her minor children, with the final decision resting with the magistrate.
Background of the Bill
The Muslim Women (Protection of Rights on Marriage) Bill, 2017, was introduced following a groundbreaking 3-2 verdict by the Supreme Court. This judgment nullified the age-old practice of talaq-e-biddat, commonly referred to as instant triple talaq.
Understanding Triple Talaq
In Islam, there exist three forms of talaq or divorce: Ahsan, Hasan, and Talaq-e-Biddat (triple or instant talaq). While Ahsan and Hasan are revocable, Biddat is irrevocable.
Widely practiced among India’s Muslim community that follow the Hanafi Islamic school of law, triple talaq permits a Muslim man to divorce his wife by uttering the word ‘talaq’ thrice in quick succession. Conversely, women do not have this privilege and are obligated to file a court case for divorce under the Sharia Act, 1937.
The practice of triple talaq has been deemed illegal by numerous Islamic nations, including Pakistan, Bangladesh, and Indonesia.
Triple Talaq and the Indian Constitution
According to Article 25 of the Indian Constitution, every citizen is entitled to religious freedom encompassing the Freedom of Practice and Propagation of Religion. However, similar to other Fundamental Rights, this too comes with restrictions and does not safeguard religious practices that may adversely affect public welfare.
As a result, Article 25 is superseded by Article 14, which guarantees the Right to Equality. In the context of triple talaq, it infringes on a Muslim woman’s right to equality before the law.
Moreover, Article 25 is also overridden by Article 15 (1), which specifies that the State “shall not discriminate against any citizen on grounds only of religion, race, caste, sex…” Owing to its discriminatory nature against women, triple talaq contravenes Article 15 (1) of the Constitution.
