‘Talaq-e-biddat is no Talaq’ per Shayara Bano
The Constitution bench of the Supreme Court comprising of 5 judges in the Shayara Bano v. The Union of India delivered 3 separate judgments, each with their own unique reasoning on the different issues arising from the case. On the issue of the validity of talaq-e-biddat, a majority of 3:2 can be engineered out of the judgments of Justice K Joseph and Justice R F Nariman (Justice Nariman’s judgment was supported by Justice Lalit). The decision of this majority qua validity of talaq-e-biddat is that the practice is illegal, meaning that resorting to this practice would not have any legal effect on the validity of the marriage between the husband and wife. The Muslim woman, to whom talaq-e-biddat has been pronounced, will continue to remain the legally wedded wife and shall continue to enjoy all the rights and protections available to her under the various applicable legislation.
The Central Government has cleared the Muslim Women (Protection of Rights on Marriage) Bill, 2017 (hereinafter “the Bill” ) inter alia, making the ‘pronouncement’ of talaq-e-biddat an offense cognizable, non-bailable and punishable by 3 years. The cited reason for tabling this bill is:
“It is seen that setting aside talaq-e-biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims. It is, therefore, felt that there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce.”
After the Supreme Court’s judgment, the number of incidents of pronouncement of talaq-e-biddat is irrelevant as they do not have any effect on the marriage. It is unclear as to who is referred to as ‘victims of illegal divorce’ when there is no divorce at all. Legally, ‘the number of divorces by this practice’ is zero after the practice is declared to be void. It is absurd that deterrence is sought to be created for an act which does not have any legal effect. Therefore, the proposed Bill is an unnecessary piece of legislation. A detailed analysis of the clauses of the Bill is as follows:
Redundancy of the Bill
The proposed Bill comprises of 7 clauses out of which, the majority of the provisions simply repeat the existing position relating to Muslim law of divorce. Clause 3 of the Bill provides that 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 merely a repetition of the law laid down by 3:2 majority in Shayara Bano v. Union of India and is therefore redundant. The order of the Supreme Court has clearly held that the talaq-e-biddat is set aside.
Similarly, Clause 6 of the Bill which provides that the woman shall be entitled to the custody of her minor children in the event of pronouncement of talaq-e-biddat by her husband is also redundant.
The issue of custody of a child/children arises only in the event of a separation or dissolution of marriage. However, it has been amply clarified above that pronouncement of talaq-e-biddat does not dissolve the marriage per majority in Shayara Bano. Therefore, the issue of custody of the woman is alien to talaq-e-biddat as the couple would share the custody of child/children during the subsistence of marriage. The provisions of the Bill are self-contradicting as they declare talaq-e-bidat to be void and illegal and at the same time provide for remedies only available at the time of the dissolution of the marriage.
Therefore, this provision is also self-explanatory and wholly unnecessary in light of the fact that the Bill seeks to make the pronouncement of talaq-e-biddat an offense punishable by 3 years. It is obvious that the woman will have the custody of children while the husband is serving imprisonment under the proposed offense.
Draconian and Arbitrary Provisions in the Bill
The provisions of the proposed Bill are superfluous and redundant except for Clause 4 which makes the mere pronouncement of talaq-e-biddat an offense punishable for a term which may extend to 3 years. The said offense is also made cognizable and non-bailable under Clause 7 of the Bill. While the constitutional legality of this provision in the light of its vagueness, the rationale of criminalizing, arbitrary punishment has been already discussed in detail, it is also pertinent to note that such a law criminalizing talaq-e-biddat does not exist in any jurisdiction in the world, nor was it mandated by the Supreme Court. The ex-Attorney General had vehemently argued during the hearing of Shayara Bano v. The Union of India that the Supreme Court should do away with the practice of Triple Talaq on the ground that a number of countries had done so. Majority of the Muslim countries in the world consider the pronouncement of talaq-e-biddat as a single revocable divorce. The legal position in India after the Shayara Bano judgment goes one step ahead to say that pronouncement of talaq-e-biddat does not constitute divorce at all. However, no country in the world has criminalized the mere pronouncement of talaq-e-biddat. If the experience of other countries is to be of any assistance to deal with this practice, it is clear that the proposed Bill in as much as it punishes the practice of pronouncement of talaq-e-biddat, is excessive and unreasonable.
Further, the proposed Bill seems to be hastily drafted without giving any attention to the nitty-gritties of a criminal trial in India. The Bill does not clarify who can file a complaint in case of pronouncement of talaq-e-biddat. For prosecution of adultery or offenses against marriage, the Code of Criminal Procedure, 1973 provides under Section 198 that only an aggrieved person (spouse of the accused) may file a complaint in such cases. A similar provision not being in place in the Bill for the prosecution of talaq-e-biddat, which is clearly an offense against marriage, makes it vulnerable to misuse and an easy tool to harass Muslim men. This could give rise to various instances where Muslim men may be arrested on motivated complaints by neighbors, in-laws, etc. Such a clarification must have been provided in the Bill itself, considering the fact that a prosecution under Clause 4 can be a huge stigma for a person and also a serious violation of his life and liberty, especially when the offense is made cognizable and non-bailable.
Furthermore, the proposed Bill does not take into account the social and economic realities of a common man’s household while providing for subsistence allowance under Clause 5 of the Bill. Clause 5 of the Bill reads as follows:
“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.”
Despite the requisite legal framework already being in place, the proposed Bill needlessly imposes an additional burden on the husband of providing for subsistence allowance in cases where talaq-e-biddat is pronounced. Clause 5 of the Bill is arbitrary and draconian as it completely fails to understand that it would be impossible for the husband to maintain his wife and children while he is in jail in a non-bailable offense.
In view of the above, it is clear that the Bill has been drafted on an incorrect understanding of the Supreme Court’s judgment in Shayara Bano. It is noteworthy that Justice Nariman’s only reasoning to hold the practice of talaq-e-bidat as manifestly arbitrary was that through this method ‘the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it’. In Justice Nariman’s reasoning lies the solution to this social evil. To reform the minuscule section of the society resorting to this practice, efforts must be made to strengthen the community legal centers which endorse reconciliation and mediation as a mode of resolving marital disputes. The judgment makes it clear that promoting reconciliation is the only way to tackle this social evil and not deterrence. Making mere utterance of a phrase which does not have any effect as punishable by 3 years imprisonment does the disservice to the cause of social reform. Sending the husband to jail while the marriage is subsisting is illogical and counterproductive as it would leave the wife and children without any financial support and add to the woman’s misery instead of emancipating her.