Why in news?
=>The Union Cabinet approved an ordinance making instant triple talaq or talaq-e-biddat a punishable offence carrying a jail term of up to three years. The step was taken after the government failed to pass the Muslim Women (Protection of Rights on Marriage) Bill, 2017, in the Rajya Sabha during the recent monsoon session.
What are the provisions?
What is instant triple talaq?
=>Instant triple talaq or talaq-e-biddat is a practice that was challenged in the court. It is different from the practice of “talaq-ul-sunnat”, which is considered to be the ideal form of dissolution of marriage contract among Muslims.
=>Under the latter form, once the husband pronounces talaq, the wife has to observe a three-month iddat period covering three menstrual cycles during which the husband can arbitrate and re-conciliate with the wife.
=>In case of cohabitation between the couple, during these three months, the talaq is revoked. However, when the period of iddat expires and the husband does not revoke the talaq either expressly or by consummation, the talaq is irrevocable and final.
=>In the practice of talaq-e-biddat, when a man pronounces talaq thrice in a sitting, or through phone, or writes in a talaqnama or a text message, the divorce is considered immediate and irrevocable, even if the man later wishes to re-conciliate.
The judgment in Shayara Bano:
=>In August 2017, the Supreme Court made global headlines when it declared the practice of triple talaq illegal for violating the fundamental rights of Muslim women.
=>Among other things, Shayara Bano had argued that freedom of religion as guaranteed by Article 25 of the Constitution was subject to the other fundamental rights, since the provision itself made freedom of religion subject to the other rights guaranteed by the Constitution.
=>International treaties and covenants including the Universal Declaration of Human Rights were cited to submit that the practice of triple talaq was impermissible in the interest of human rights.
=>Relying on the fact that the archaic practice of triple talaq was long outlawed in many Islamic countries including Saudi Arabia and Pakistan, she argued that there could be no protection to such inhuman practice that permitted men to treat women as chattel on the pretext of religion, given that it clearly failed the “essential practice test” that must be applied to determine whether a practice is essential to professing a religion or merely incidental to it.
What was the real issue?
=>In the context of gender equality and human rights, it must be noted that Muslim women were given triple talaq over Skype, Facebook and even text messages. Shayara Bano herself received a talaqnama by post.
=>There was absolutely no protection against such arbitrary divorce. Muslim women had their hands tied while the guillotine of divorce dangled, perpetually ready to drop at the whims of their husbands who enjoyed undisputed power.
=>Muslim women cried hoarse that they were often married only for their youth, to be unceremoniously and arbitrarily abandoned later, without even an excuse for termination of the marriage.
=>But there was much more than the lack of dignity attached to such abhorrent treatment of women as chattel, to be used for carnal pleasures in their youth, only to be abandoned in their later years. Some critics, commentators and readers may not be aware of “kidney marriages”.
=>Rich sheikhs from the Middle East who needed replacement of kidneys and other human organs visited India for medical tourism. Since Indian law allows a relative to donate organs, these sheikhs simply married poor Muslim girls only to abandon them after extracting a kidney. Muslim marriages were on the rise and so were divorces by triple talaq.
Supreme Court directive:
=>The Supreme Court had itself requested Parliament to pass legislation on triple talaq, preferably within six months of the verdict. After the verdict, the government decided to introduce a Bill to criminalise the practice, which was passed by Lok Sabha in December.
=>The Ordinance came to be passed because the Monsoon Session of Parliament concluded with Rajya Sabha’s failure to pass the Bill as law.
=>Given that law without justice is a wound without a cure, mere declaration of the practice as illegal serves no purpose unless a cure is prescribed by way of a legal remedy. In criminal jurisprudence, acts that threaten society and social order are viewed as crimes, which are remedied by punishment.
=>Criminal jurisprudence dictates that the rewards of a crime must not exceed the punishment for the crime, if people are to be deterred from committing the crime. Similarly, the “theory of alarm” is considered when prescribing punishment for a crime, with greater punishment being the norm for bigger crimes that threaten society more than other offences.
=>Of course, many heinous crimes have comparatively less punishment under the Indian Penal Code, while some acts that are arguably not criminal in any manner attract severe penalty.
=>The decision to take the ordinance route to enact a diluted version of its law making instant triple talaq a criminal offence is a sign of undue impatience.
=>This is a matter that required deliberation, especially after serious objections were raised to some provisions of the Bill passed by the Lok Sabha; also, there is an ongoing debate on the desirability of criminalising instant triple talaq.
=>In the face of Opposition concerns, the government proposed significant changes to water down the provisions relating to the treatment of talaq-e-biddat as a criminal offence. Despite a notice for these amendments being given, the matter was not taken up in the Rajya Sabha in the last session due to a lack of consensus.
=>The proposed amendments will not only restrict the scope for misuse by preventing third parties from setting the criminal law in motion against a man pronouncing instant triple talaq against his wife; they will also leave open the possibility of the marriage continuing by allowing bail and settlement.
=>But the core issue that arises from the proposed law remains: whether a marital wrong, essentially a civil matter, should lead to prosecutions and jail terms. Also, when the law declares instant triple talaq to be invalid, it only means the marriage continues to subsist, and it is somewhat self-contradictory for a law to both allow a marriage to continue and propose a jail term for the offending husband.
Legal contradictions under the triple talaq ordinance:
=>Besides, Section 4 mandates a three-year imprisonment and fine for this void act, and Section 7 declares it a cognisable and non-bailable offence. This fixation with talaq-e-biddat, even when it does not dissolve the marriage, is baffling.
=>Article 13 (2) states: “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” Endorsing this, Article 123 (3) warns that if an ordinance “makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.”
=>The ordinance, insofar as it arbitrarily curtails the personal liberty of a citizen without his having committed any offence, violates Part III of the Constitution, specifically Article 21 which states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
=>It also goes against Article 19 which inter alia allows all citizens “to move freely throughout the territory of India” and “practise any profession, or to carry on any occupation, trade or business.”
=>If by criminalising the mere pronouncement of the legally impotent formula talaq-talaq-talaq it violates the principle of substantive due process, the ordinance disregards procedural due process by laying down an iniquitous procedure for the “offender’s” imprisonment, bail, custody of his children and the amount he has to shell out as subsistence allowance to his wife even while serving a jail sentence.
=>The fact is, it makes no sense to bypass the parliamentary process because Article 123 (2) (a) demands that all ordinances be laid before both Houses of Parliament when Parliament reassembles.
=>In Krishna Kumar Singh v. State of Bihar (2017), the Supreme Court ruled that tabling ordinances in Parliament (or a State Legislature) “is a mandatory constitutional obligation cast upon the government” because ultimately it is the legislature which determines “the need for, validity of and expediency to promulgate an ordinance.”
=>And failure to table an ordinance before the legislature “is an abuse of the constitutional process” and a “serious dereliction of the constitutional obligation.”
Pic courtesy:EENADU India
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