Talaq, talaq, talaq: A Confusing Bill
By
S.K.T. Nasar
(Address: Flat-202, Khaspur Cooperative Housing
Society, Plot-AA-170, Street no. - 64, Action Area-1A, New Town,
Kolkata-700156; Mobile: +91 9433560830)
Hot
topic
The
Supreme Court of India set aside the practice of instant triple talaq. Other
issues connected with Muslim Personal law will be adjudicated soon. As a
sequel, The Government of India introduced a new Bill in Lok Sabha. The matter
was quickly deliberated and the Bill was adopted. All proposed amendments were
rejected. The Bill is pending in Rajya Sabha for deliberation. A new Law on
instant triple talaq will soon become reality after the Bill is adopted by
Rajya Sabha. The Bill needs public scrutiny based on official documents
available in public domain excluding those on Parliamentary debates and the din
outside.
SC
Judgment
The
Bill is a consequence of the judicial review and verdict by the apex court.
Honourable Supreme Court of India, on 22 August 2017, set aside the practice of
‘talaq-e-biddat’ – triple talaq. Triple
talaq is three pronouncements of talaq at one and the same time by a married
Muslim husband leaving no scope for reconciliation between legally wedded
husband and wife. The five-judge bench was split on the issue. The order was
passed by a majority of 3:2 in view of the different opinions recorded in the
judgment.
The
Bench at the outset decided to limit its consideration only to
“‘talaq-e-biddat’ – triple talaq” in view the factual aspect and the complicated
questions that came up in this matter. It was further decided that issues in
other connected cases such as polygamy, ‘halala’ and allied matters would be
dealt with separately. The Bench also felt that the determination of the
present controversy on triple talaq shall coincidentally provide answers to the
connected issues.
Contentions
of opposing parties and submissions by learned counsels are recorded as a
common piece. Three separate judgments have been written. The first is recorded
by Mr. Justice Kurian Joseph, the second jointly signed by Mr. Justice Rohinton
Fali Nariman and Mr. Justice Uday Umesh Lalit and the third one is jointly
endorsed by Chief Justice of India Mr. Justice Jagdish Singh Khehar and Mr.
Justice S. Abdul Nazeer. The first and second judgments are clubbed together in
agreement. The third judgment differs in conclusion. The operative Order has
been signed by all the five justices.
The
Order of the Court reads as: “In view of the different opinions recorded, by a
majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside”.
In effect, the provision of ‘talaq-e-biddat’ – triple talaq stands removed from
‘The Muslim Personal Law (Shariat) Application Act, 1937’.
The
Bench was split even on the one issue of triple talaq that it considered.
Despite being split, the judgment is a must-read informative document. The
judgment takes one on a fascinating study tour of places, eras, legislations in
diverse countries, books, Shariat laws, kaleidoscope of talaq types, verses of
the Holy Quran and court judgments.
The
Bill
Honourable
Supreme Court has merely set aside “‘talaq-e-biddat’ – triple talaq” for six
months hoping that an appropriate legislation shall be in place within this
time frame. The Government of India leapt many steps forward proposing to make
the pronouncement of ‘talaq, talaq, talaq’ instantly as a grave criminal
offence. Instead of only amending the existing ‘The Muslim Personal Law
(Shariat) Application Act, 1937’ to the extent of deleting triple talaq from
law, the Union Government brought in an innovative Bill standing apart from the Shariat Act.
On
15 December 2017, Government of India introduced “The Muslim women (protection
of rights on marriage) Bill, 2017” in Lok Sabha. This four-page Bill (Bill No.
247 of 2017) is comparatively a short document for interested readers. The most
relevant portions are highlighted.
Chapter
II of the Bill has the sub-heading of ‘Declaration of talaq to be void and
illegal’. Section-3 of this chapter reads as: “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. Section-4
declares that “Whoever pronounces talaq referred to in section 3 upon his wife
shall be punished with imprisonment for a term which may extend to three years
and fine.”
Chapter
III is captioned as “Protection of rights of married Muslim women. Section-5
declares “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. A married Muslim woman shall be entitled to custody of her
minor children in the event of pronouncement of talaq by her husband, in such
manner as may be determined by the Magistrate (Section-6). An offence
punishable under this Act shall be cognizable and non-bailable within the
meaning of the Code of Criminal Procedure, 1973 as per Section-7 of the Bill.
The
Bill aims at protecting the rights of married Muslim women and prohibiting
divorce by instantaneously pronouncing talaq thrice by their husbands and matters
connected with or incidental to this practice. Here, talaq means talaq-e-biddat
or any other similar form of talaq having the effect of instantaneous and
irrevocable divorce pronounced by a Muslim husband upon his duly wedded wife.
The
Bill also proposes that the 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 designated
First Class Magistrate. She shall also be entitled to custody of her minor
children in such manner as may be determined by the Magistrate of the
exercising jurisdiction over the area where a married Muslim woman resides
under the Code of Criminal Procedure, 1973. Moreover, pronouncement of triple
talaq shall be a cognisable and non-bailable offence under this Act within the
meaning of the said CrPC. Such offence shall attract punishment of a jail term
for three years and fine, meaning thereby that if the convicted Muslim husband
fails to pay the fine shall be liable for an extended jail term. Provisions of
the Bill shall extend to the whole of India except the State of Jammu and
Kashmir.
The
Bill has been quickly discussed and passed by Lok Sabha on 28 December 2017.
The Bill is now being deliberated by Rajya Sabha. The outcome is eagerly
awaited.
Issues
radiating from the Bill
The
Bill shows ambiguities on a closer look. Relevant aspects are enumerated below.
The
Bill proposes a new law without reference to the existing ‘The Muslim Personal
Law (Shariat) Application Act, 1937’, its amendments or substitutions. This
leaves scope for confusion. The Shariat Act is in operation about which the
Bill is silent. The two laws – one, the Shariat Act, 1937 and the other law
when the Bill, 2017 becomes an Act - shall be operative concomitantly in
respect of triple talaq. The Shariat Act needs to be amended to the extent
required.
The
Bill makes instant pronouncement of talaq three times is ‘void and illegal’. In
law, void means of no legal effect. An action, document or transaction which is
‘void’ is of no legal effect whatsoever. Void is an absolute nullity, and the
law treats it as if it had never existed or happened. An action which is 'void'
having no effect whatsoever can neither be legal or illegal for the simple
reason that it does not or did not exist. Triple talaq can only be either
‘void’ or ‘illegal’; it cannot be both at the same time. The Bill leaves scope
for confusion.
Since
the pronouncement of ‘talaq-e biddat’ - triple talaq is void and, thereby, of
no consequence whatsoever, the marital status of the legally married Muslim
husband and wife wedded by ‘nikah’ shall continue to exist. The talaq which is
legally ‘void’ doesn't affect the marriage and the right of spouses to conjugal
life remains unaltered. The legally ordained right and duty of the spouses to
conjugal life with cohabitation is severely dented. The provision of reconciliation
for restoration of marriage is irrevocably crushed. Imprisonment of the husband
pronouncing the ‘void’ triple talaq, in accordance with provisions of the Bill,
in effect infuses legal effect to the ‘void’ talaq. The Bill proposes to make a
legally ‘void’ talaq effective and operative in practice. This aspect calls for
review.
‘Talaq-e
biddat’ – triple talaq shall not impact the status of marriage-by-nikah and
conjugal life of the spouses. The marriage continues unaffected with all
provisos intact. The marriage-by-nikah
is a civil contract; it is not sacrosanct. However, instant pronouncement of
triple talaq can, at best, be seen as definite intention of the Muslim husband
to divorce his wife. The intentioned talaq that cannot happen or be effective in
any manner has been made a criminal offence attracting imprisonment and fine.
It is baffling that the Bill criminalises an ineffective intention to breach a
civil contract of Muslim marriage-by-nikah. It needs examination by legal
experts if triple talaq is an ineffectual intention to divorce, and if such
ineffectual intention to breach a civil contract is a criminal offence.
Future
scenario
Rhetoric
shall intensify if the Bill is not converted by Rajya Sabha into a flawless
“The Muslim women (protection of rights on marriage) Act, 2018”. There is more
to come. Some other provisions in the Muslim Personal Laws are going to be
adjudicated by the Honourable Supreme Court. New Laws will be made. It is time
for all stake holders to discuss the issues without individual or group
prejudices.
In
any case, the Bill that is the Law-to-be shall continue to baffle future
litigants, legal luminaries, the justice delivery system and the public at
large. Prestige and status of both Sunni and Shia Muslim Personal Law Boards is
at stake. Dar-ul Qazas will lose sheen on matters of triple talaq. Implementation
of the Law shall face hurdles as is the situation with most personal laws.
Innovative methods to bypass the law will emerge. Unforeseen scenarios may
popup.
Nevertheless,
once the Law is in force, it must be implemented by all in utmost fairness.
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