Both houses of the Indian parliament have now passed a controversial bill banning and criminalizing “Triple Talaq”, a form of Muslim divorce by which a husband can divorce his wife by simply saying “Talaq, Talaq Talaq” thrice in quick succession either directly in front of the wife, or by phone, email, or SMS.

Under the Muslim Women (Protection of Rights on Marriage) Bill 2019 passed by the Upper House of parliament on Tuesday, divorcing a wife through instant Triple Talaq will be illegal, void and could attract a jail term of three years for the husband.

As per the bill, which is now goes to the President for his assent, a Muslim woman against whom Triple Talaq has been declared, is entitled to seek a subsistence allowance from her husband for herself and also for her dependent children. She is also entitled to seek custody of her minor children.

The Narendra Modi government had been wanting to pass the bill for long, but was thwarted by a lack of strength in the Upper House. But the required majority was secured on Tuesday courtesy walk outs by some parties.

The government’s move was backed by a 2017 Supreme Court ruling which had banned Triple Talaq in which the word “Talaq” is uttered orally or otherwise three times in quick succession. The court, however, allowed cases of Triple Talaq in which the word was uttered after reasonably long gaps meant to enable reconciliation. The court also wanted the government to make a law to ban instant Triple Talaq.

Overjoyed by the passing of the bill, which replaces an ordinance passed earlier this year, Prime Minister Narendra Modi said: “ An archaic and medieval practice has finally been confined to the dustbin of history! Parliament abolishes Triple Talaq and corrects a historical wrong done to Muslim women. This is a victory of gender justice and will further equality in society. India rejoices today!"

Criminalization

However, the principal contentious issue which divided opinion among the political parties and the people of India was not the ban on Triple Talaq of the instant kind, but its “criminalization”.

The opposition Congress party said there was no need to criminalize Triple Talaq, as it had already been struck down by the Supreme Court as being unconstitutional. The Congress also argued that under Muslim personal law, marriage and divorce are civil matters settled through civil contracts. Therefore, these could not be subject to criminal jurisdiction. Triple Talaq could not be made a cognizable offence.

Congress MP Raj Babbar pointed out that even if the wife did not want to file a police complaint, her relations could do so and get the husband arrested. Bail would be very difficult, he added.

Opposition parties and human rights workers also ask how a man imprisoned for three years could provide maintenance for the divorced wife and children when he is in jail and cannot work. If he belongs to a working class, or a daily wage earner, he will be languishing in jail for ever as he will be unable to pay alimony.

And under Indian conditions, his family outside the prison walls will also sink into poverty. A general study on divorces in India revealed that 45% of divorced women were getting no alimony or any financial help from anybody. This is partly due to pervasive poverty.

The other objection is: why punish only Muslim men when Hindu or Christian men also desert their wives, if Triple Talaq is deemed to be the equivalent of desertion. There is only a marginal difference between the divorce rates among Muslims and Hindus. And both are very low.

The Census of 2011 had put the divorce rate among Muslims at 0.56% and 0.76% among Hindus. As for Triple Talaq as a form of divorce, neither the government nor the Law Commission has conducted any surveys among Indian Muslims.

The only known surveys are those conducted by the Bharatiya Muslim Mahila Andolan (BMMA). In 2014, the BMMA Shariat courts had received 219 cases of divorce, only 22 of which were related to Triple Talaq. In the BMMA survey covering 117 divorce cases, Talaq was delivered over phone in 0.2% of the cases and through e-mail in 0.6% cases.

Interestingly, in 40.57% of the divorce cases referred to BMMA, it was the Muslim women who had demanded divorce not men.

There is no survey on the extent of polygamy among either Muslims or Hindus. However, empirical evidence puts instances of polygamy among the poorer sections of the two communities as high or as low as the other.

Political Decisions Taken On Unfounded Perceptions

However, political decisions are taken not on the basis of surveys or research findings but perceptions and popular notions. The popular and unfounded notion in this case is that divorces and polygamy are endemic among Muslims, or at any rate, they are much more prevalent among Muslims than among Hindus.

The other erroneous notion is that Triple Talaq is the most commonly used form of divorce among Muslims.

The government should not take crucial decisions to reform personal law on the basis of perceptions or unscientific research. Experts have urged the Law Commission to conduct a major comparative study on this subject to know the ground realities of women from various religious communities, said Faizan Mustafa in an article in The Wire.

On its part, the government should release all the data from the socio-economic- caste censuses. Research should be used as a starting point for a truly informed debate on the plight of women in Indian society – all women, regardless of caste, region or religion, Mustafa said.

Pointing to another case of discrimination against the Muslims, an expert on Sunni law asked how the Indian system tolerates the Jain community’s practice of going on a ritualistic fast unto death. When the case went to the Supreme Court ,the court allowed the practice to continue, affirming the fundamental right of Jains to practice their religion without any judicial intervention. How come judicial intervention is right in the case of the Jains’ religious practice and not right in the case of Muslims’ religious practice?

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