Triple talaq ordinance – the reasons behind

Unable to build consensus among political parties in Rajya Sabha on the Bill criminalising the practice of instant triple talaq, the Union Cabinet recently decided to take the ordinance route to outlaw the practice.

View of Government

According to government, practice of triple talaq continued unabated despite the Supreme Court order last year.

Background – The judgment in Shayara Bano Case

In August 2017, the Supreme Court made global headlines when it declared the practice of triple talaq illegal for violating the fundamental rights of Muslim women.

In a landmark 3-2 verdict, a five-judge Constitution Bench set aside the centuries-old practice of instant triple talaq or talaq-e-biddat in which Muslim men divorce their wives by uttering talaq three times in quick succession. Three of the five judges called the practice un-Islamic and “arbitrary” and disagreed with the view that triple talaq was an integral part of religious practice.

Important points raised during Shayara Bano Case

Among other things, Shayara Bano had argued that freedom of religion as guaranteed by Article 25 of the Constitution was subject to the other fundamental rights, since the provision itself made freedom of religion subject to the other rights guaranteed by the Constitution. International treaties and covenants including the Universal Declaration of Human Rights were cited to submit that the practice of triple talaq was impermissible in the interest of human rights.

Relying on the fact that the archaic practice of triple talaq was long outlawed in many Islamic countries including Saudi Arabia and Pakistan, she argued that there could be no protection to such inhuman practice that permitted men to treat women as chattel on the pretext of religion, given that it clearly failed the “essential practice test” that must be applied to determine whether a practice is essential to professing a religion or merely incidental to it.

Before the judgment

In the context of gender equality and human rights, it must be noted that Muslim women were given triple talaq over Skype, Facebook and even text messages. Shayara Bano herself received a talaqnama by post. There was absolutely no protection against such arbitrary divorce.

Muslim women had their hands tied while the guillotine of divorce dangled, perpetually ready to drop at the whims of their husbands who enjoyed undisputed power. Muslim women cried hoarse that they were often married only for their youth, to be unceremoniously and arbitrarily abandoned later, without even an excuse for termination of the marriage.

“Kidney marriages” were on the rise

But there was much more than the lack of dignity attached to such abhorrent treatment of women as chattel, to be used for carnal pleasures in their youth, only to be abandoned in their later years. Some critics may not be aware of “kidney marriages”.

Rich sheikhs from the Middle East who needed replacement of kidneys and other human organs visited India for medical tourism. Since Indian law allows a relative to donate organs, these sheikhs simply married poor Muslim girls only to abandon them after extracting a kidney. Muslim marriages were on the rise and so were divorces by triple talaq.

What are the provisions in the ordinance?

1. Triple talaq remains cognizable with a maximum of three years imprisonment and a fine.

2. Triple talaq will be recognised as a crime only when a woman or her blood relative files a complaint with the police.

3. A compromise can be achieved only when the woman is willing and says so to a magistrate. A magistrate can grant bail only after the wife’s consent.

4. The custody of children from the marriage will go to the woman.

5. The mother is entitled to maintenance determined by a magistrate.

6. The law doesn’t affect Jammu and Kashmir.

What are the criticisms regarding the ordinance?

1 . In criminalising any act, the state must demonstrate “compelling state interest”. Ordinances are to be promulgated when there is immediate need of a law and Parliament is not in session. The Muslim Women (Protection of Rights on Marriage) Bill, 2017 is pending in Rajya Sabha. Political needs do not justify the use of the extraordinary power to promulgate an Ordinance.

2 . The Statement of Objects and Reasons of the Ordinance says the Supreme Court held triple divorce unconstitutional. In fact, the court merely set aside the practice. The Ordinance itself may be struck down as unconstitutional on the grounds of harm theory, and arbitrary and excessive punishment.

3 . Also, a punishment, to be just, should have only that degree of severity which is sufficient to deter others. Consider some of the other crimes that attract 3 years in jail and/or fine:  Rioting, armed with deadly weapon (IPC Sec 148), Promoting enmity between classes of people (IPC Sec 153A), Making or selling instrument for counterfeiting coin (IPC Sec 233) , Import or export of counterfeit coin (IPC Sec 237), and Deliberate and malicious insulting of the religion or religious beliefs of any class (IPC Sec 295A).These crimes are more serious than the act of an individual who, instead of taking 3 months to divorce his wife (which is permissible), pronounced talaq thrice instantly.

Why understanding the ground reality is essential before criticising the ordinance?

Before arguing from an armchair perspective against the Ordinance, the critics would be well advised to consider empirical data and ground realities. They need to enquire whether the Shayara Bano judgment succeeded in preventing triple talaq, with many maulvis publicly declaring war on the Supreme Court.

The critics need to ask themselves how justice may be done to the victims of “kidney marriages”. If false promise to marry to obtain sexual gratification is deemed to be rape (punishable by life imprisonment)  how is marriage with the intent of discarding the woman after some time by abusing the inhuman and abhorrent practice of triple talaq any different? Why would the state protect women from becoming victims of false promises of marriage, but turn a blind eye to triple talaq, which has the same effect on their life and dignity?

They also need to appreciate the difference between talaq-e-bidat and talaq-e-ehsan, the former being instantaneous triple talaq by simultaneous utterance of talaq thrice (now illegal) and the latter being a more detailed and Quranic procedure, attempting reconciliation and drawn out over three months as explained in the Holy Quran and documented by Islamic countries in their legal instruments.

Why the ordinance was necessary?

1 . Supreme Court had itself requested Parliament to pass legislation on triple talaq, preferably within six months of the verdict. After the verdict, the government decided to introduce a Bill to criminalise the practice, which was passed by Lok Sabha in December .The Ordinance came to be passed because the Monsoon Session of Parliament concluded with Rajya Sabha’s failure to pass the Bill as law.

2 . Given that law without justice is a wound without a cure, mere declaration of the practice as illegal serves no purpose unless a cure is prescribed by way of a legal remedy. In criminal jurisprudence, acts that threaten society and social order are viewed as crimes, which are remedied by punishment. Criminal jurisprudence dictates that the rewards of a crime must not exceed the punishment for the crime, if people are to be deterred from committing the crime.

3 . Similarly, the “theory of alarm” is considered when prescribing punishment for a crime, with greater punishment being the norm for bigger crimes that threaten society more than other offences. Of course, many heinous crimes have comparatively less punishment under the Indian Penal Code, while some acts that are arguably not criminal in any manner attract severe penalty.

4 . Before the Ordinance, we had a situation where triple talaq was illegal, but there was no punishment for committing such illegal act. What then, was the real deterrence? Why would a Muslim man bored of his wife, or a wealthy sheikh in need of a kidney from a girl he conveniently calls wife, not abandon her unceremoniously after she fulfilled his needs? The answer lies in punishment, which is finally on the books.