[dropcap]T[/dropcap]he Muslim Women (Protection Of Rights On Marriage) Bill, 2017, colloquially known as the Triple Talaq Bill, will be up for deliberations at the forum of the Rajya Sabha during the Monsoon session of Parliament, which commenced on July 18, 2018. The Bill was passed by the Lok Sabha during Parliament’s 2017 Winter session, but was stalled in the Rajya Sabha by the Opposition owing to their numerical advantage in the upper house. The legislation came subsequent to the landmark Supreme Court judgment in the Shayara Bano case, where a seven-judge constitutional bench set the practice aside. It was further subject to a notice moved by Congress Leader Anand Sharma requiring the Bill to be referred to a Select Committee of the Rajya Sabha for further analysis and suggest requisite amendments, if necessary.
The contentions surrounding the Bill are two-fold. Firstly, the substantive provisions of the Bill itself and secondly, the procedure by which its legislation has proceeded.
Substantive issues
Section 3 of the Bill reads:
Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.
This provision is seemingly in line with the Supreme Court’s holding in principle, but the contentions arise when it read in consonance with Sections 4 and 7.
Section 4
Whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine.
Section 7
Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the said Code.
Marriage and divorce are matters governed by civil law, and Muslim marriages are in the nature of civil contracts. Section 7 by assigning CrPC to be the governing statute, assigns criminality to a civil act which already is rendered inconsequential by Section 3 as it deems it to be void ab initio. Further, by deeming an already ineffective declaration as cognisable, it allows for the police to arrest any Muslim man accused of declaring talaq-i-biddat to his wife without a warrant
signifying a Magistrate’s assent. It further allows for harassment of Muslim men at the hands of the police, facilitated by the broadly worded Section 41 of the CrPC, basis being “reasonable suspicion” on the part of the police. Arrests can also be made in lieu of registration of an FIR, which could be filed by anyone (not just the wife), which allows for targeted malicious prosecution as well.
The quantum of punishment laid down by Section 3 is also disproportionate. A maximum sentence of imprisonment up to three years is warranted by crimes such as rioting, armed with deadly weapon
(Section 148, IPC), voluntarily causing hurt by dangerous weapons or means (Section 324, IPC) and sexual harassment (Section 354A) among others. The prescribed punishment also exceeds that for causing death by negligence (Section 304A), which only warrants a maximum jail sentence of two years.
Further, the notion of imposing punitive measures to curb criminal instances has no empirical backing. This can be viewed in light of the 2013 Criminal Law amendments not affecting the rate at which women are raped with impunity in India, even thought he quantum of punishment was increased.
The bill also contains no provisions for reconciliation or preservation of the marriage so affected, which is stated as on object in the Bill’s Statement of Objects and Reasons. The husband’s imprisonment creates additional hurdles to the aforementioned objectives.
Section 5
Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced, shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children as may be determined by the Magistrate.
Further, the allowance of subsistence to the affected women by Section 5 of the Bill also seems counter-intuitive to its substance. Given the divorce via talaq-i-biddat is deemed to be void, the women are entitled to all marital rights accorded to a wife including access to her matrimonial home and resources of her husband’s family.
These marital rights exceed the allowed subsistence, which limits the women’s claim, hence hampering her interests.
Section 6
Notwithstanding anything contained in any other law for the time being in force, a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.
Even Section 6 which lays down provisions for the custody of minor children, pertains to measures necessitated post separation or divorce, which the act expressly seeks to prohibit and render void.
Procedural concerns
The evident haste demonstrated by the BJP government to pass this Bill through the Lok Sabha, and their rhetoric surrounding the Bill clearly hinted at electoral gains rather than the stated Object of the Bill to emancipate affected Muslim women.
Further, the lack of consultation with academics and civil society groups while drafting the Bill, a few of which spearheaded the incipient Supreme Court challenge, and the finance minister Arun Jaitley citing a timeline mentioned the minority view of the pertinent judgment which holds no binding value whatsoever to prevent it from being scrutinised by a Select Committee, demonstrates the absence of democratic values.
