Issue

• The Union Cabinet has cleared ordinance to make practice of instant triple talaq a penal offence.
• Continued practice of triple talaq even after annulment by the Supreme Court has been cited as reason behind promulgation of ordinance.

Background

• Triple talaq is a practice in which Muslim men divorce their wives unilaterally by uttering “talaq” three times in quick succession.It is different from the practice of “talaq-ul-sunnat”, which is considered to be the ideal form of dissolution of marriage contract among Muslims.
  a. Under the latter form, once the husband pronounces talaq, the wife has to observe a three-month iddat period covering three menstrual cycles during which the husband can arbitrate and re-conciliate with the wife.
  b. In case of cohabitation between the couple, during these three months, the talaq is revoked. However, when the period of iddat expires and the husband does not revoke the talaq either expressly or by consummation, the talaq is irrevocable and final.
  c. In the practice of talaq-e-biddat, when a man pronounces talaq thrice in a sitting, or through phone, or writes in a talaqnama or a text message, the divorce is considered immediate and irrevocable, even if the man later wishes to re-conciliate.

• In a landmark 3-2 verdict in August 2017, five-judge Constitution bench of Supreme Court had declared centuriesoldpractice of instant triple talaq or talaq-e-biddat
  a. Three of five judges of this benchhad termed this practice un-Islamic and arbitrary. They also disagreed with view that triple talaq was an integral partof religious practice.
• In pursuance of SC verdict, Government had managed to get Muslim Women (Protection ofRights on Marriage) Bill, 2017 passed in LokSabha in December 2017 but it got stuck in RajyaSabha.

Analysis

• Components of the ordinance

• The ordinance makes instant triple talaq illegal and void.
• It prescribes punishment with jail term for three years to husbands practicing triple talaq.
• It also includes certain safeguards such as the addition of a provision of bail for the accused before trial, to do away with fears of misuse of the law.
• The offence of triple talaq will only be cognizable when victim wife or her relatives by blood or marriage file a FIR.
• It is termed as a compoundable offence, meaning that there can be compromise but only on insistence of wife and the magistrate will have to determine the terms and conditions.
• The offender can be granted bail by magistrate but only after hearing victim wife as it is private dispute between husband and wife and wife must be heard when bail is granted.
• Additionally, victim wife will get custody of minor children. They will be entitled to receive maintenance from husband for herself and her children, as determined by magistrate.

• Impact of these changes

• These amendments will restrict the scope for misuse by preventing third parties from setting the criminal law in motion against a man pronouncing instant triple talaq against his wife.
• They will also leave open the possibility of the marriage continuing by allowing bail and settlement.
• The core issue arising from the proposed law is whether a marital wrong, essentially a civil matter, should lead to prosecutions and jail terms.
• Further, when the law declares instant triple talaq to be invalid, it only means the marriage continues to subsist.
• It is also somewhere self-contradictory for a law to both allow a marriage to continue and propose a jail term for the offending husband.
• India follows a secular approach with religious groups being allowed to manage their own affairs within the law. Most of these divorcees never see justice or even a chance at reconciliation with the husband. The move to criminalise instant divorce, therefore, is being touted as a step forward for the rights of Indian Muslim women.
  
  

  Ordinance making powers of the President: (Article 123)    • Ordinance can be proclaimed by the President only during recess when the Parliament is not in session.    • It can also be issued when only one house is in session.    • The decision of the President to issue an ordinance can be questioned in a court on the ground that the President prorogued one house       or both the houses of the Parliament deliberately with a view to issue an ordinance on a controversial subject.    • Ordinance issued by the President must be laid before both the houses of Parliament when it reassembles.    • From the date of reassembly the ordinance is valid for a period of six weeks.    • The President can withdraw an ordinance at any time.    • Ordinance cannot be issued to amend the constitution.

  
  

  Status in other countries

• India and 22 other countries have banned the practice of triple talaq.
• India’s neighbours Pakistan, Bangladesh and Sri Lanka are among the countries that have banned the practice of instant triple talaq prevalent among Muslims for divorce.
• In Pakistan and Bangladesh, the law requires the man who wishes to divorce his wife to give the ‘arbitration council’ a written notice of his having done so, and supply a copy of the same to his wife.
• In Afghanistan, divorce through three pronouncements made in only one sitting is considered to be invalid.
• Sri Lanka’s Marriage and Divorce (Muslim) Act, 1951, amended up to 2006, also prohibits triple talaq.
• Government’s position on Triple Talaq always had been that it has nothing to do with faith or mode of worship or religion, but it is pure issue of gender justice, gender dignity and gender equality.

Learning Aid

Practice Question:

1. “The move to criminalise instant divorce is a step forward for the rights of Muslim women in India.” Discuss the statement in light of the recent ordinance issued by the government to make practice of instant triple talaq a penal offence.

2. Ordinance route is suited only to very urgent and critical matters for which it is not possible to wait for Parliamentary proceedings. Analyse in context of increased use of ordinance as a replacement for standard parliamentary legislative processes.