Triple Talaq Bill In Current Form May Create More Victims Than Help Any

Advocate Shaheen Naqshbandi
29 Dec 2017 7:18 AM GMT
Triple Talaq Bill In Current Form May Create More Victims Than Help Any
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The government has passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017 (in common parlance, known as the Triple Talaq Bill), in a great hurry without any serious discussion or debate. The immediate question which arises is whether anyone has thought of the practical implications of such a harsh step like penalizing of triple talaq.

Let us try to understand whether the ostensible victims of triple talaq would really find succour in this Bill. Will it help the victims, or add to their woes and create more victims? This is a purely legal analysis based on my professional dealing with Muslim matrimonial cases in various courts of Mumbai and, occasionally, courts of other jurisdictions.

Instant triple talaq was abused and asking for its ban was just right. Muslim women approached the Supreme Court and prayed for banning of instant triple talaq. The court subsequently granted that. It also asked the government to frame legislation for addressing the misuse of triple talaq. The government has come up with a Bill tabled before the Parliament - and while I am writing this, the Lok Sabha has already passed the Bill.

The highlights of the Bill are:

  1. Instant irrevocable talaq will be void and illegal.
    In simpler words, when a man gives three divorces in one sitting, it will be void and illegal, and the marriage will subsist.

  1. If the husband pronounces instant irrevocable talaq, he will be punished and fined. Punishment would be upto 3 years.

  2. As triple talaq is illegal and void, the marriage continues to subsist and wife is entitled for maintenance for herself and her children just as in any marriage.

  3. The offence (instant triple talaq) is cognizable and non-bailable. In simpler words, the wife may or may not make the complaint but the police will have the right to arrest and investigate.

Let us discuss basic working procedures of marriage, divorce and its accountabilities.

Upon marriage, the couple under Muslim law enters into a contract and this contract is dissolved upon talaq. Whether talaaq, triple talaaq or no talaaq, a Muslim woman like woman of any other faith in India has all her rights protected in general laws like 125 CRPC and PWDVA. Talaq or triple talaq does not hinder any of her rights that she has as a wife or as a divorced woman. Except for change of marital status, the woman has right to maintenance, shelter, custody and protection of her assets in 125 CRPC and PWDVA. The present Bill does not provide her any additional benefits in terms of her rights in marriage and divorce.

There is nothing that the Bill adds to the already existing maintenance responsibilities of the husband covered under various Acts. Only addition is that it makes the act of divorce punishable which to my mind is extremely unfair to both men and women. Divorce is not a crime. Not fulfilling monetary responsibilities - as the law obligates - of divorced wife and children or dependents, in case they are unable to maintain themselves is considered as an offence only after due process of law. The fact is there are existing laws that have already covered the issue.

Arresting a man for triple talaq in one instance can actually destroy families. As triple talaq in one instance is illegal, the marriage subsists and it would be the responsibility of the man to maintain his family while utterance of triple talaq will land him in jail for upto 3 years. Now the question is that if he is the sole breadwinner, then who would maintain his wife and children. Will this not put the entire family system under great stress? Does this Bill not have the potential to destroy the institution of family – the Muslim family, I should add? In such circumstances, who is the victim? The dependents would be left to fend for themselves as the man behind the bars won't be in a position to pay for the family expenses.

Furthermore, since the present Bill says that triple talaq is cognizable and non-bailable, if there is anybody it empowers it is the policemen who can arrest and investigate the accused with or without the complaint from wife or any other person. This itself makes every married Muslim man a potential target of mischief.

There are many examples that I can cite from my experience of working on Muslim matrimonial cases that can further show that this Bill is predatory in nature and it appears that it has been done with the sole motive of appeasing a section of people who have no interest in the welfare of Muslim women or Muslims in general. A Bill of this seriousness should have been researched, debated and discussed across various platforms and at various levels before presenting and passing it in the Parliament.

Advocate Shaheen Naqshbandi is practicing in Mumbai.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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