Will the new Triple Talaq Act help uplift Muslim women?

The President of India has given his assent to the Muslim Women (Protection of Rights on Marriage) Bill, commonly known as the Triple Talaq Act thus making it a law.

"Twenty Muslim countries in the world, including Pakistan and Malaysia, have banned triple talaq. Why can't a secular India do it?" questioned Union Minister of Law, Ravi Shankar Prasad, during the parliamentary debate on the Act. He also pointed out that the practice of instant triple talaq had continued despite the Supreme Court calling it illegal and unconstitutional two years ago. Therefore, this had to be backed by a stringent Act.

The ACT: In constitutional terms, the Muslim Women (Protection of Rights on Marriage) Act, 2019,was introduced in Lok Sabha by Union Minister of Law and Justice Ravi Shankar Prasad 

on June 21, 2019.

Key: The Act makes all declaration of talaq, including in written or electronic form, to be void (not enforceable in law) and illegal.  It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce. Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and 

irrevocable divorce.

Offence and penalty: The Act makes declaration of talaq a cognizable offence (an offence or which a police officer may arrest an accused person without warrant), attracting up to three years’ imprisonment with a fine. The offence will be cognizable only if information relating to the offence is given by either the married woman (against whom talaq has been declared), or any person related to her by blood or marriage.

Exception: This Act also provides that the magistrate may grant bail to the accused.  The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the magistrate is satisfied that there are reasonable grounds for granting bail.

"Magistrate" means a judicial magistrate of the first class exercising jurisdiction under the Code of Criminal Procedure, 1973, in the area where the married Muslim woman resides.

Compoundment: The offence may be compounded by the magistrate upon the request of the woman (against whom talaq has been declared). It refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute. The terms and conditions of the compounding of the offence will be determined by the magistrate.

Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children.  The amount of the allowance will be determined by the magistrate.

Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her children. The manner of custody will be determined by the magistrate.

The provisions of the Act shall extend to the whole of India except the State of Jammu and Kashmir 

Though there is agreement that the lot of the Muslim married woman must be improved, political parties like RJD, JDU, AIMIM, BJD, AIADMK and All India Muslim League have opposed the act, on one ground or the other.

While some parties have called it governmental interference in the religious practices of a community, breaking its social norms, others have opposed the stringent provision for imprisonment on the grounds that it could create distrust in the marital lives of Muslim couples, yet others fear misuse by estranged Muslim wives against their husbands, and the categorisation of the offence as criminal and not civil. 

For example, Congress leader Shashi Tharoor in Parliament has debated that it was a textbook example of class-legislation as it was pointed at one community — Muslims, even though abandoning wives is not unique to it. Tharoor claimed that there should be a law universally applicable to all in case of abandoning wives.

On the other hand, the most vocal critic of BJP, Asaduddin Owaisi of AIMIM, has taken a pot-shot at BJP’s intent, saying that if the party had so much affection for women, they should not have opposed the rights of Hindu women to enter Sabarimala Temple in Kerala. 

Owaisi says this Triple Talaq Act violates the fundamental right of equality of the Constitution, as it stipulates a three-year jail term for guilty Muslim men while non-Muslim men may get only one year of jail term for abandonment.

AS Fatima Muzaffer, member of All India Muslim Personal Law Board, Convener, Federation of Tamil Nadu Muslim Women, Member, Tamil Nadu Wakf Board and daughter of veteran Muslim leader the late AKA Abdul Samad, says, “The Law Minister quoting 700-odd cases of triple talaq over the past two years out of a population of 130 crore doesn’t justify the need to bring in a legislation.”

In 2018, AIMPLB had given a petition to the Law Commission that the Muslim community didn’t want government’s interference in matters related to talaq and that the Shariat was good enough. This petition was signed by over 2.7 crore Muslim women, and 2 crore Muslim men.

“In no community it is criminalised (Hindu, Christian, Buddhist) then why is it being provided under this Act for Muslim women,” Fatima asks.

The key point of the Opposition has been the criminalisation of the offence by the new Act, but the government maintains that the key objective of this Act is to ensure the larger constitutional goals of gender justice and gender equality for married Muslim women, safeguarding their fundamental rights, and empowering them against any discrimination, at par with those enjoyed by all women in the country.

Tweeting on the issue, Ravi Shankar Prasad, says “Hindu Marriage Act, Dowry Prohibition Act and Section 498A of IPC- all prescribe jail for crimes associated with marriage. These laws were brought by the Congress Party. But they have an objection if jail is prescribed for practising triple talaq.” Even in countries where triple talaq has been banned, there is no provision to jail the husband, says Fatima.

In its original form, the Act had intended to make the offence cognizable and non-bailable. After apprehensions were raised in and outside Parliament regarding these provisions, the 2019 Act was modified to make the offence cognizable, if the information is given to an officer in charge of a police station by the married Muslim woman upon whom talaq has been pronounced or any person related to her by blood or marriage.

It has also now been decided to make the offence bailable and compoundable at the instance of the married Muslim woman with the permission of the magistrate, on such terms and conditions as he may determine.

The general feeling is that the legislation which seeks to help Muslim women will actually make matters worse for them. Muslim women, particularly in the villages will face great difficulties, with most of them not literate enough to understand and represent their side. Plus, there is the financial burden of hiring a lawyer. 

Magisterial courts are burdened with lakhs of pending cases and the dates of hearing don’t come soon enough, the woman facing triple talaq will also have to go through the harassment of making repeated visits to the court. In the new Act, the burden of proof lies on the aggrieved wife.

Also, since triple talaq has been declared illegal by the Supreme Court in 2017, the marriage still remains valid, till the man serves his three years’ imprisonment following his announcing triple talaq to his wife. 

“Muslims are the most backward community in India, with a majority of them living below poverty line, economically deprived, and facing huge unemployment. 

If the husband goes to jail, survival of the family becomes a challenge,” says Fatima. The question of maintenance for the woman and the family has not been dealt with.

Some experts point to the scope for misuse of the provisions which state that blood relations can report the violation. Families may try to settle family or property disputes by reporting him wrongly.

But, Dr KVS Habeeb Muhammad, an Islamic activist, and author of Tamil books like Feminism in Islam and Uniform Civil Code, differs.  He feels that overall the Act is a blessing and will now force men to think before they give instant talaq. 

He, however, says, “Islam is being portrayed as anti-woman, but it is not. Islam was the first religion that gave rights to women to choose the husband, the right to divorce, and also the right to remarry, right from the 7th Century AD."

Another Islamic scholar says there have been cases where the family forces their sons, working in Gulf counties to give triple talaq over the phone to their wife, in case of even small differences with their daughter-in-law.

Others feel that the general suspicion for BJP’s Hindutva agenda is fuelling this opposition. Even if they agree with this Act, they refuse to openly declare it because they fear a backlash from the community. They fear that this will be the first step towards bringing in a Uniform Civil Code in India.

In Hindu marriages, divorce cases run for years, and until it is settled, they cannot remarry. But in Muslim communities, the divorce doesn’t take much time, and the woman is free to remarry within a couple of months.