Parliament Rightly Makes Triple Talaq Criminal But Bailable Offence

“It is a happy moment for not just me but for Muslim society as a whole. We have been freed of an evil custom. Generations of women have suffered due to instant triple talaq. They have been thrown out of their house overnight and made to go through hell.”

– Shayara Bano who litigated in Apex Court to outlaw it and got it done.

It is a Himalayan blunder that while Hindus were banned from marrying more than one women or men but Muslims were not similarly banned which cannot be justified under any circumstances. Jawaharlal Nehru only thought about welfare and prosperity of Hindus but not of Muslims. The population of Hindus thus got contained due to which they have gained immensely but Muslims suffered terribly as their population swelled as they were permitted to marry upto 4 wives in case of Sunnis and no limit among Shias by virtue of Muta marriage and a large chunk of the population is compelled to live in dire straits!

Similarly Nehru took no other initiative to end other bad practices prevalent among Muslims like triple talaq and nikah halala by which if a husband pronounces triple talaq and he wants to marry her again then the women first has to undergo marriage with some other men then take divorce from him and then marry her former husband! Nothing on earth can be more terrible than this which makes a complete mockery of the dignity and esteem of women in the society! But why blame Nehru alone? No PM till recently ever took any initiative in this regard! Yes, late former PM Rajiv Gandhi wanted to take initiatives with his Union Minister Arif Mohammad Khan advising him but he buckled under pressure from fundamentalists and politicians supporting them within his party who were more in number!

What a crowning irony that now when PM Narendra Modi has taken this great initiative, he is being criticized and castigated by members of the same grand old Congress party! Former Finance Minister and senior BJP leader Arun Jaitley said that the triple talaq bill aimed at banning the practice of instant divorce among Muslims, “exposed those who consider themselves liberals”. He wrote in his tweet that, “A ‘liberal’ should ordinarily be hostile to the idea of discrimination and injustice perpetuated by an oral divorce. In this case, not one spoke in favour of the Bill which is ending the injustice. They raised weak arguments so that the fundamentalists amongst the Muslims are kept happy.”

Without mincing any words, the former Union Law Minister Arun Jaitley rightly said that, “Let us assume the reverse of the present situation. What if such a provision existed in Hindu law? Liberals, leftists, women organizations and perhaps even the judiciary would have been shocked with such a provision and would have attempted either for a repeal of the law or it being declared unconstitutional. These people stand exposed because what they have attempted to raise farcical objections.” He also rightly pointed out that, “While the Constitution has the right to practice and propagate one’s religion as well as an individual’s fundamental rights in the same chapter, there is a need to do a rethink on provisions of personal law which violate fundamental rights.” He then goes on to make a distinction between the rights and rituals in any religion. He wrote that, “Rituals cannot be decided by the law. They remain squarely within the right to practice one’s religion. However, fundamental rights belong to all. One section of the society cannot be denied these rights. What affects the right of a citizen – in this case the Muslim wife, cannot be determined by religion.”

Needless to say, “Triple talaq”, as it’s known, allows a husband to divorce his wife by repeating the word “talaq” (divorce) three times in any form, including email or text message. It has been mostly always misused by men and it is the women who had to bear the maximum brunt because of it. Opposition especially Congress is attributing political motives to Centre ‘s bold moves to ban it and criminalise it even though it is bailable. While rebutting all such charges, Amit Shah who is Union Home Minister rightly points out that, “We need to understand that women who fought a long battle against triple talaq didn’t have any political motive. They were normal women who showed extreme courage to fight against injustices they were subjected to. They were determined to put an end to this practice and finally won the battle in the country’s highest court. By legislating a triple talaq our government has given a statutory backing to their battle. After all, lawmakers and political parties are duty bound to give voice and right direction to such fights. Opposition’s argument questioning the need for law applicable only to Muslim society is also baseless. Independent India has seen enactment of laws aimed at reforming entrenched practices in other communities. Hindu Marriage Act, Christian Marriage Act, and laws to ban child marriage and dowry are examples of such interventions. Those engaging in opportunistic, narrow political arguments refuse to acknowledge these. Those who question making triple talaq a criminal offence conveniently ignore that several other practices related to Hindu society are considered criminal offence and attract severe punishment.” Why no brouhaha is made for them similarly? This leaves us in no doubt that all opposition is because of vote bank politics!

To put things in perspective, it is most heartening to note that “The Muslim Women (Protection of Rights on Marriage) Bill, 2019” better known as the Triple Talaq Bill finally got President Ram Nath Kovind’s assent on August 1, 2019. Hence it has now become a law which shall be binding on Muslims. This is no less than a boon for Muslim women who earlier were subjected to the mercy of the whims and fancies of her husband who could dump her whenever he wanted!

As it turned out, it must be mentioned here that with this assent of President, this historic Bill has replaced the triple talaq ordinance promulgated in February 2019. It was on July 25 that Lok Sabha passed this historic Bill with 303 votes in favour and 82 against. It was on July 30, 2019 that in the 245-member Upper House that is Rajya Sabha voted in favour of the Bill and 84 opposed it while 62 members stayed away by either walking out or abstaining or being absent!

Let me say this on record: It is because of this 62 members of Rajya Sabha who either walked out in the name of formal protest or abstained from voting or remained absent that this historic Bill could see the light of the day! Centre did not have enough members in Rajya Sabha to ensure that it get passed even though it had comfortable majority in Lok Sabha. But these 62 members decided to lend their support indirectly by not voting against the Bill by either remaining absent or staging a walk out or abstained from voting! All Muslim women must remain grateful to these 62 MPs also apart from Centre! There can be no denying or disputing it!

It is most heartening to note that the triple talaq bill has been finally outlawed! But its passage has been far from smooth. The ruling dispensation that is NDA led by Prime Minister Narendra Modi and Union Law Minister Ravi Shankar Prasad showed a steely resolve, firm determination and grit to make sure that women get their basic rights and those men who insult them by resorting to triple talaq are not able to escape the long arms of the law! It took three attempts to make sure that ultimately it becomes a law! Head of IMC (Ittehad Millat Council) – Maulana Tauqeer Raza Khan said that instead of opposing Triple Talaq Bill we should look at it from the viewpoint of a sister and daughter and it will protect them totally from harassment. He also rightly said this work should have been done by us but we didn’t do so Allah made Prime M inister Narendra Modi to do this! He rightly pointed out that, “In Islam triple talaq is criminalized since 1400 years and it was Khalifa-e-Waqt Hazrat Umar Farooq who had done this! The punishment is not as much as the Bani-e-Islam had expressed anger! Even Prophet Mohammad had expressed his anger at it”! Very rightly said!

Kudos to the Centre for taking such a historic initiative! It left no stone unturned to make sure that more and more members from different parties support this historic triple talaq bill to ensure that women don’t keep on suffering endlessly in silence as has been happening since past 72 years! Jawaharlal Nehru had the guts to usher in reforms in Hindu law and Hindu Marriage Act 1955 was passed and he very rightly ensured that Hindus who both male and female could marry as many as they want earlier were restricted to just one and if they violated they could be punished for a term of seven years for which Hindus must always be grateful to him and should salute him as it is because of this that the population has been controlled to a very large extent. But he did not do anything to ensure that polygamy is similarly banned among Muslims also which would have benefited them also and their population could have been brought under control! However, now PM Narendra Modi has done to Muslims what Jawaharlal Nehru could never do to ensure that Muslim women benefits by making sure that triple talaq bill gets passed in Parliament and finally becomes a law.

As things stand, this Triple Talaq Bill has been a bone of contention and a point of friction between the Narendra Modi led NDA government and the Opposition since December 2017, when the government first tabled this historic legislation in the Lok Sabha. The Bill followed a Supreme Court judgment famously known as Shayara Bano case and titled as Shayara Bano Vs Union of India & Ors. It was in this landmark case that the Supreme Court in a 3:2 majority verdict struck down the age-old regressive and abominable practice under which a Muslim man could divorce his wife by uttering the word “talaq” thrice in one sitting and declared it as void and illegal.

Be it noted, minutes after the vote, Prime Minister Narendra Modi tweeted that by abolishing triple talaq, “Parliament corrects a historical wrong done to Muslim women.” As many as eight Congress members were absent during the vote in Rajya Sabha. Janata Dal (U) and the AIADMK walked out. Also absent were high profile Opposition leaders like the NCP’s Sharad Pawar and Praful Patel thus lending their indirect support to this historic Bill!

It must be pointed out here that as many as 22 Muslim countries including Pakistan, Afghanistan and Bangladesh – or their provinces have abolished triple talaq either explicitly or implicitly. The list includes Turkey and Cyprus, which have adopted secular family laws; Tunisia and Algeria and the Malaysian state of Sarawak, which do not recognize a divorce pronounced outside a court of law; and Iran, where triple talaq doesn’t have validity under its Shia law. Instant talaq is also banned in Algeria, Jordon, Egypt, Iraq, Brunei, the UAE, Indonesia, Libya, Sudan, Saudi Arabia, Morocco and Kuwait.

It was way back in 1961 that Pakistan had abolished triple talaq. It also deserves mention that Sri Lanka’s Marriage and Divorce (Muslim) Act, 1951, as amended up to 2006, doesn’t recognize instant divorce. This is because the law requires a husband wishing to divorce his wife to give notice of his intention to a Qazi (Islamic Judge) who should attempt reconciliation between the couples over the next 30 days. It is only then after all this that the husband can give talaq to his wife and that too in the presence of the Qazi and two witnesses. But what we see in India is that triple talaq is given from telephone or even email which is most reprehensible as it degrades and demolishes the unique identity of women and subjects her to the whims and fancies of men alone! Describing the practice of triple talaq as “barbaric and inhuman”, Ravi Shankar Prasad rightly pointed out that nearly 22 countries have regulated triple talaq but gender justice was given a complete go-by in a secular country like India because of blatant vote bank politics.

It cannot be lost on us that Ravi Shankar Prasad who is Union Law Minister while hailing the passage of the Triple Talaq Bill pointed out emphatically that, “Finally, Parliament has passed the Triple Talaq Bill after three attempts. The kind of jubilation it has caused across the country, barring conservative elements, indicates how it is a proud moment for India. Our country is transforming and the women of India feel empowered. Triple talaq has never been sanctioned in Islamic scriptures. During the debate in Parliament, I quoted a very authoritative book on Islamic laws from an eminent jurist, Amir Ali, wherein Prophet Mohammad (PBUH) has been quoted as disapproving of it in the strongest possible terms, and, forcing one of his disciples who had given triple talaq to his wife to accept her again. Despite disapproval from the highest quarters in Islam, and the fact that many Muslim countries following sharia laws also chose to reform it one way or another – including making it penal in many cases – it took more than 70 years in India to not only delegitimise this curse, but also provide for penal consequences. Regrettably, this shows the hold the communal and conservative elements continue to exercise over the country’s polity.”

What’s more, Ravi Shankar Prasad further points out with full zeal that, “Today, I need to salute great women like Shayara Bano and Ishrat Jehan and many others who went to the Supreme Court in 2013 challenging this pernicious practice. When the NDA government came to power in 2014, the Prime Minister boldly directed me to stand firmly with these women and support their cause.” He also lamented that, “After the Supreme Court judgment set aside triple talaq, many of us had thought that now this practice will come to an end. However, it continued unabated, even on the flimsiest of grounds. I had shared before Parliament, a large number of cases that we could gather from the media and other reports, where it was revealed how helpless women (75 percent of the victims are poor) were driven out by uttering “talaq-talaq-talaq”, irrevocably annulling the marriage.”

Let me say this on record: What a complete mockery does this make of women! Should it be allowed to permit under any circumstances? Certainly not. If it was not made a penal offence then certainly it would not serve as a adequate deterrent. The worst sufferers in such case would have been none other than women herself!

It also cannot be lost on us that many opposition parties have opposed this historic Bill on the ground that it criminalizes the triple talaq and this will break marriages more quickly. What they very conveniently forget is that even Hindus earlier could marry as many as they wanted both men and women but it was outlawed and they were made liable to be punished under Section 494 of IPC for imprisonment which may extend to seven years and shall also be liable to fine! Then why so much of brouhaha for a three year bailable jail term for Muslims now?

It is a no brainer that to prevent this and taking on board such valid concerns, Ravi Shankar Prasad points out rightly that, “When we framed the law we took on board some of the legitimate concerns, namely: The FIR must be filed by the victim/wife or her relations, by blood or marriage, to prevent abuse, and, it must be compoundable. The provision of bail was specifically added, but after hearing the wife. Besides, there are provisions for subsistence allowance and custody of minor to the wife. It was a very simple and straight legal framework, and yet, the Congress took a very negative stand that it should not be made penal at all. Therefore, while formally opposing triple talaq Bill, the Congress was insisting upon a law whereby this curse could go unabated for want of any deterrence.” Very rightly said! How can this be permitted?

It would be fair to ask: if the law was not made penal, would it have served its desired purpose of protecting Muslim women from being subjected to arbitrary divorces? It goes without saying that certainly not. It would have been toothless and the offence against women would have continued unabated as rightly pointed out by the Law Minister!

Most importantly, noted Islamic scholar and former Union Minister in late PM Rajiv Gandhi’s Cabinet – Arif Mohammad Khan very rightly sums up by saying that, “This is a very positive step taken by the Government. It has performed its constitutional duty. It was an obligation of the government to ensure that the Supreme Court (SC) judgment is followed in letter and spirit. Unless some penal provision is incorporated or it is made a punishable offence, the law is not respected. The malpractice of triple talaq has its roots in history. In India, the Supreme Court held triple talaq unlawful on two counts. One, it is arbitrary. Second, it is part of the religious law. The aprties defending this malpractice also admitted in their affidavit that it is ‘Haram’ (prohibited), and it is ‘bidat’ (innovative practice), which is not part of the original scheme. They said it is sinful but legally permissible – bad in religion but good in law. On it, the SC judgement said that this is unimaginable that something in a religious law can be ‘bad in religion and good in law’. If something is bad in religion then it must be bad in religious law also.”

While lambasting the Opposition leaders for criticizing it, Arif Mohammad Khan minced no words in saying that, “If the parties like the Congress and AIMIM feel that an act which is “Haram” and sinful is part of the Muslim identity, then I can only feel sorry about it and I would say it is highly insulting to every Muslim.” He also condemned those who say it is an attack on the Muslim identity saying that, “I find this language and these assertions absolutely insulting for the Muslims, because the triple talaq, according to the defenders of the practice also, is prohibited and sinful.

About Nikah Halala, Arif Mohammad Khan said that, “I think Halala is a related issue. Once triple talaq comes to an end, Halala will die its natural death.” About polygamy, he said that, “Though I am not a practicing lawyer, I argued in the SC against triple talaq. And, I intend to do the same, when the polygamy issue is taken up. Based on my studies of the Quran, I am convinced that polygamy is as untenable as triple talaq and has very weak ground. The Quran clearly directs to ‘marry those among you who are single’. When the scripture is saying, ‘marry one who is single’, then why should she marry a man who already has a wife? I am very sure that it will also be outlawed. I am of the opinion that why should the government wait for the SC. The Legislature should initiate the process.”

It must be pointed out that Zakia Soman who is co-founder of Bharatiya Muslim Mahila Andolan has also hailed the outlawing of triple talaq by observing that, “The passage of the Triple Talaq Bill is a welcome development. Although this has been long overdue and Muslim women have been steadfastly demanding it for many years now, this is a historic step forward in the movement for gender justice by ordinary women.”

To conclude, in the 21st century why should women not have the same rights as men? Why should women suffer at the hands of men as he likes, whenever he likes, wherever he like and how he likes without any hindrance whatsoever? Why when polygamy was banned among Hindus in 1955 has it not been banned among Muslims 54 years later in 2019? It is for Centre to answer! Hindus have gained as the population has come under control but Muslims still are suffering because of it not being outlawed. It must take the great initiative in this direction also as rightly pointed out by Arif Mohammad Khan! Let’s hope so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.