Ordinance Banning Instant Triple Talaq (or Talaq-e-biddah)

Sacchar Committee observed in its report that the contemporary status of Muslims in India was abysmally low and deprivation prevailed. This deprivation within the community stems from a shortage of three essentials:

Knowledge (measured by literacy and average years of schooling),
Economic power (measured by work and income),
Autonomy (measured by decision-making and physical mobility).

It is in this context the plight of Muslim women needs to be conceptualised. Gender discrimination coalesces with class inequalities and pervasive social hierarchies to compound the marginalisation of Muslim women. Banning Instant triple talaq is one such step to realise the idea of gender equality in modern India.

What constitutes Triple Talaq?

Talaq (or divorce) in Islamic law is the right of the husband to dissolve his marriage based on some compelling cause such as impossibility of cohabitation due to irreconcilable conflict. This talaq is considered valid only when the husband is of sound mind, the wife has been paid the full payment of mahr and it has been ascertained that the wife is not pregnant during the iddat period.
Comparatively, Triple talaq is a recent innovation that is practised in India, whereby a Muslim man can legally divorce his wife by pronouncing talaq three times through oral or written form without citing any causefor the divorce. Triple talaq as a practice is not mentioned in the Quran or Sharia law and has been largely disapproved by Muslim legal scholars as it has become a source of gender discrimination.

Current Status

The Supreme Court in “Shayara Bano vs. Union of India” case declared talaq-e-biddah (instant triple talaq) as unconstitutional and arbitrary. The court highlighted that triple talaq is not an essential part of Islam as it is a recent innovation based on pre Islamic laws and does not finds its mention in Quran or Sharia laws. It also observed that triple talaq has been used as a tool in Indian society to oppress women and to restrict her financial autonomy.
Though the SC banned Triple Talaq, it did not seem to have a deterrent effect and therefore, the Muslim Women (Protection of Rights on Marriage) Bill 2018 was introduced in the Parliament which made instant triple talaq or talaq-e-biddah a criminal offence, with a jail term of up to three years.

Important Provisions of the Bill

All declarations of talaq, including in written or electronic form, was to be considered void (i.e. not enforceable in law) and illegal.
Instant triple talaq is to remain a cognisable offence with a maximum of three years imprisonment and a fine. The fine amount is decided by the magistrate.
A case will be registered only when information relating to the offence is given by the wife or her blood relative.
Though the offence is non-bailable, a special clause has been inserted that grants Magistrate the power to grant bail to the accused on reasonable grounds only after hearing the wife.
The wife has been entitled to subsistence allowance and the amount is to be decided by the magistrate.
The wife is entitled to seek custody of her minor children from the marriage.
The legal proceedings can be stopped and the dispute can be settled by the Magistrate upon the request of the woman (against whom talaq has been declared).
Addresses the practice of nikah halala, which requires the divorced women to marry someone else and consummate the marriage if she wants to remarry her husband.

Since the Muslim Women(Protection of Rights on Marriage) Bill has not been passed by Rajya Sabha, the central government resorted to the ordinance route to ensure the word and letter of the judgement of Supreme Court is carried out and hence The Muslim Women (Protection of Rights on Marriage) Ordinance 2019 was passed.

Challenges Ahead

Raising awareness among Muslim Community regarding anomaly in triple talaq from Islamic laws
Ensuring the bill does not attain a communal angle or divide society along sectarian lines
Ensure that the bill does not become a tool to target a specific class of persons based on their gender and religious identity
Ensure that the faith in fundamental right provided under Article 26 is protected
Ensure the bill is not counter intuitive to women welfare by sending the sole bread winner of family behind bars

Way Forward

Non passage of bill in the Rajya Sabha points to lack of consultation with various stakeholders while preparing the bill, this needs to be rectified.
Political maturity should prevail while discussing such a sensitive issue in public
Raise public awareness about why triple talaq has been banned in Islamic countries
The ordinance route chosen points to misuse of the specific provisions of the article which says Article 123 is to be invoked only in the condition when “immediate action” is required. This is a wrong precedent and has to be addressed.
Ensure the bill is not perceived as outside intervention or unstable external reforms in matters of Muslim faith