The word talaq is defined in this bill, as talaq-e-biddat, one of the ways of divorce in the Muslim community, in which the word talaq is uttered thrice by a Muslim husband to his Muslim wife to effect an irrevocable divorce under Islamic laws.

It means married Muslim women are not protected in this bill against talaq (literally divorce) as such, but against using or misusing the word talaq thrice.

The Supreme Court of India in the matter of Shayara Bano Vs.Union of India and others, on 22nd August, 2017, in a majority judgement of 3:2, had set aside the practice of talaq-e-biddat (three pronouncements of talaq, at one and the same time) practiced by certain Muslim husbands to divorce their wives. The petitioner in the said case had challenged, inter alia, talaq-e-biddat on the ground that the said practice is discriminatory and against dignity of women.

The judgement gave a boost to the pro-Hindu ruling party with its well known anti-Muslim stance to champion the cause of Muslim women. The objective of the bill itself says that this judgement gave a boost to liberate Indian Muslim women from the age-old practice of capricious and whimsical method of divorce by some Muslim men, leaving no room for reconciliation. The government said that the judgement vindicated their position that talaq-e-biddat is against constitutional morality, dignity of women and the principles of gender equality, as also against gender equity guaranteed under the Constitution.

They in a hurry, drafted the bill, and tabled it in the Lok Sabha on Dec. 28, 2017. Even the word talaq is wrongly defined making room for socio-political and communal exploitation of the word. The bill is even not applicable to all married Muslim men and women, because it makes an exception of the State of Jammu and Kashmir.

Apart from the State of Jammu and Kashmir, the logic of constitutional morality, dignity of women and the principles of gender equality is also not applicable to all women married to Muslim husbands. It is applicable only in the case of a Muslim husband and a Muslim wife.

No one can support the misuse of the word talaq to divorce a wife. With the new developments in the society, such as in the field of science and technology, electronic forms of uttering talaq are also being misused. The bill rightly covers all misuses of the word in any form whatsoever. It presumes that there cannot be any justifiable use of talaq-e-biddat and has made the whole system illegal and punishable. It can therefore be easily exploited by women having ill intentions. Muslim husbands of Muslim wives can be put under threat of up to three years of imprisonment with fine with false allegation of triple talaq. This law is thus not neutral.

A First Class Magistrate of the area where a married Muslim woman resides shall have the jurisdiction under the Code of Criminal Procedure. It is well in the line of helping the victim woman. But the question is, does the bill really give protection to the married Muslim women against talaq-e-biddat?

Justice demands that a woman – married, divorced, or deserted – should get everything justified according to her status. The bill makes a divorce (talaq-e-biddat) null and void which automatically should restore her married status with all the rights and duties of a married Muslim woman. It means, under Islamic law, she has power to ‘demand’ from her legally married Muslim husband and has ‘rights’ on his property and other things. However, this bill has curtailed such a ‘power and right’ of the woman making her entitled only ‘to receive from her husband such amount of subsistence allowance for her and her dependent children as may be determined by the Magistrate’. Since the talaq is null and void, she cannot claim even the amount of Mehar, and she cannot get enough subsistence allowance for herself and her dependent children from a husband in jail, because he would become jobless in that period having zero current earning. His earnings from other sources such as landed property may be meagre. In such cases, the woman may suffer more without or less financial protection from her husband.

Since the bill makes pronouncing talaq by a Muslim husband to a Muslim wife a cognizable and non-bailable offence the situation arising out of it would be more painful for both the husband and wife. Since this is not compoundable, the wife and husband cannot go for out of the court settlement. The other options for reconciliation between the husband and wife would therefore become more difficult.

A civil society always tries continuance of the marriage, and they must have more and more options to pursue in this direction. No one, even the state, should try to prevent a reunion. Laws must encourage reconciliation and reunion rather the making the ways and means more difficult and inaccessible.

The All India Muslim Personal Law Board (AIMPLB), which was the 7th respondent in the above case, in their affidavit, inter alia, contended that it was not for the judiciary to decide matters of religious practices such as talaq-e-biddat, but for the legislature to make any law on the same. They had also submitted in the Supreme Court that they would issue advisories to the members of the community against this practice. They had not expected that the government would bring such a bill full off shortcomings.

The Muslim woman on whom triple talaq was pronounced by the Muslim husband is also entitled for the custody of her minor children, and the government has said that the legislation would help in ensuring the larger Constitutional goals of gender justice and gender equality of married Muslim women and help subserve their fundamental rights of non-discrimination and empowerment.

But the question remains: Is it really empowerment of married Muslim women without discrimination and help them subserve their rights? (IPA Service)