20 November 2018

Some Flaws of the Triple Talaq Bill passed by Lok Sabha


The Muslim Women (Protection of Rights on Marriage) Bill 2017 - popularly known as Triple Talaq Bill - introduced in Lok Sabha on 28th December 2017 and passed within four hours on the same day without it being referred to the subject committee of Lok Sabha for deeper deliberations as the procedures of parliamentary business prescribe, is not only a bloat on the already dried law making process in the country, but also an exercise of tyrannical majoritarianism of the present ruling dispensation. No stakeholder of triple talaq has been meaningfully involved in the process of formulating or passing the bill as democratic process demands.
In a bill which is claimed to be a landmark one and enacted in accordance with the ‘will of the people’ particularly the distressed Muslim women, there is absolutely no need to have such an undue haste in rushing it through Parliament without gathering collective public opinion or opinion of the opposition parties at least. In this law making attempt, the government wholly ignored every trace of inviolable democratic process of dialogue, dissent and deliberation.
The bill, as passed by Lok Sabha, shows some basic jurisprudential flaws. It criminalizes triple talaq which is already declared null and void and unconstitutional on 22nd August 2017 by a Supreme Court verdict. Nobody knows how Parliament can outlaw something which has already been outlawed by a well drawn out judicial process.  
The bill makes triple talaq – the practice of a Muslim man divorces his wife by saying talaq three times in one go - a non-cognisable offence. It states, “Whoever pronounces talaq upon his wife shall be punished with imprisonment for a term which may extend to three years and a fine,” and adds that “An offence punishable under this Act shall be cognisable and non-bailable within the meaning of the Code (The Code of Criminal Procedure)”.
 Muslim marriage is essentially a civil contract. Here a civil wrong is being made a criminal offence. When triple talaq becomes a non-cognisable offence anyone can file a statement (First Information Statement) against anyone in the police station and get him arrested by using the flawed policing system in the country easily. This crimninalisation equips anyone intending to settle some old scores with a Muslim husband, who is in marital dispute with his wife, with an easy tool to harass.
Everybody knows and says the triple talaq is a discriminatory, anti-woman practice but nobody wanted it to be made a crime and the parties involved to be punished in the manner the bill envisages. The triple talaq has no much validity either in personal laws or in legislative laws. No doubt, it is an arbitrary practice of divorce, deviated much from its original scheme in the religious text.
In the issue of triple talaq, what the Muslim woman needs is not to put her husband in jail but either to force him to continue the marital relation or to get from him maintenance or any other relief smoothly. Even though the bill provides for subsistence allowance for women, no one knows how a husband who is put in jail for the offence for three years would provide it to the wife in distress. Similarly there is no clarity in the bill as to the burden of proof in regard to the criminal act of uttering triple talaq during the judicial proceedings.
No doubt the bill, if enacted in the present form, would make the victims of triple talaq more agonized. It, in its present form, does not provide any additional benefit to the Muslim woman other than what is already available from other laws.
In short, the bill callously questions ones common sense in many ways. It seems to have no much legal and constitutional standing if it is put to judicial review. It appears that it is the fallout of a flawed political process. This kind of law making is nothing but a brazen scuttling of our well established democratic process.

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