The triple talaq Bill (The Muslim Women (Protection of Rights on Marriage) Bill, 2017), which is being hailed as a historical reform for benefit of Muslim women, was hurriedly passed by the Lok Sabha on Thursday. The present regime has shown its intellectual mediocrity and legislative inefficiency through this poorly-drafted piece of legislation.
The draft Bill raises some important questions most importantly that of urgency in getting the Bill tabled and passed in Lok Sabha. The object statement of the Triple Talaq Bill states that the Supreme Court judgment has had no deterrent effect and therefore, a Bill criminalising instant triple talaq or talaq-ul-biddat was required. The Law Minister stated in the Lok Sabha that there have been 66 cases of triple talaq after the Shayra Bano judgment of the Supreme Court in July this year. With the Muslim population in India being roughly 172 million, 66 is hardly a number that can cause any legislative exigency. In a data published before the judgment, the percentage of women aggrieved by triple talaq was merely 0.2%. Even the Supreme Court in its much celebrated judgment noted that incidents of triple talaq were negligible. Therefore, this hurriedly drafted Bill reflects political posturing and not the reformist inclination of the government.
The second major question that arises is on the need of such legislation. The protection of section 498A of Indian Penal Code, Domestic Violence Act and Dowry Prohibition act was always available to Muslim women. So what was the requirement of having an additional law to “protect” Muslim women? There is no data stating that the condition of Muslim women is worse than that of Hindu women, rather there is data to the contrary.
The Union Law Minister referred to various Muslim countries and stated that these countries have abolished triple talaq. The Law Minister was perhaps not properly briefed as he did not inform the Parliament that these countries have given the power of dissolution of marriage to Sharia courts. The question that arises is whether in the light of the same, will the government now strengthen Dar-ul-Qaza/ Sharia Courts.
Section 5 of the draft Bill provides that the wife will be provided with “subsistence allowance”. The subsistence allowance will be independent of any maintenance amount that she may receive under Section 125 of the CrPC or monetary relief under Section 20 of the Domestic Violence Act. The Act does not stipulate whether this subsistence allowance will be interim or permanent. The usage of word “subsistence allowance” in itself is problematic. The Oxford dictionary defines subsistence allowance as “an allowance or advance on someone’s pay.” Under Indian law, subsistence allowance is a term used mostly in service jurisprudence, especially in laws relating to workmen. The usage of the term underlines the misogyny in the thought process of the law-makers who consider wife to be an employee of the husband.
Section 7 of the draft Bill makes pronouncement of talaq-ul-biddat as a cognizable and non-bailable offence. The legislature in its lack of wisdom did not stipulate as to whose information regarding pronouncement of instant triple talaq will be construed as “information” required under Section 154 of the CrPC. This effectively means that any person can lodge an FIR against the husband and the husband will be under threat of arrest even without issuance of warrant.
The very fact that the government in its misplaced wisdom did not refer the Bill to an expert committee or conducted consultations with stakeholders shows its complete disregard for any intellectual input or discussion. The Bill was not only hurriedly drafted, but also tabled without due consultation and this puts a big question mark on the intention behind the Bill.
The Bill that has been passed by the Lok Sabha sets a dangerous precedent for law making by completely disregarding the ground realities and the same cannot be termed as progressive by any standard. It is a textbook case of erroneous drafting and misplaced political posturing.
Anas Tanwir is an advocate at Supreme Court of India.