President Ram Nath Kovind signs Ordinance banning Instant Triple Talaq practice

Sep 20, 2018 09:59 IST
Union Cabinet approves Triple Talaq Ordinance

President Ram Nath Kovind on September 19, 2018 signed the Ordinance banning the practice of Instant Triple Talaq. The ordinance was cleared by the Union Cabinet earlier on the same day itself. The ordinance makes instant triple talaq a punishable offence.

The ordinance has similar provisions as mentioned in original the Muslim Women (Protection of Rights on Marriage) Bill 2017, which was cleared by the Lok Sabha in December 2017. However, the bill was stuck in the Rajya Sabha.

It faced a stiff resistance in the Rajya Sabha where several opposition lawmakers argued over the criminal provisions in the draft law.

In view of the growing opposition, the Government on August 9, 2018 approved three amendments in the instant triple talaq bill, making it permissible for a magistrate to give bail for the offence.

Amendments approved in August 2018

  • The amendment mandates that the magistrate can decide on releasing the husband on bail only after hearing the wife. However, the offence remains non-bailable. Under a non-bailable law, bail cannot be granted by police at the police station itself. The government has not struck down the three year jail penalty for the husband or the provision that only empowers a magistrate to release the accused on bail.
  • Another amendment allows only a woman, or a close relative, to file a police case against her husband for instant triple talaq.
  • The third amendment makes the offence of instant triple talaq "compoundable", where a magistrate can use his powers to settle the dispute between a husband and his wife. It allows a wife to drop the case, if husband returns to her later and they arrive at a compromise.

Now, the ordinance will be placed before the Parliament and the bill would still need to be passed by the Rajya Sabha as the Supreme Court had held that "re-promulgation of ordinances is a fraud on the constitution" and hence not allowed. It cannot become a "parallel source of legislation”.

Provisions of the Muslim Women (Protection of Rights on Marriage) Bill, 2017

• The bill says 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."

• It makes instant triple talaq or talaq-e-biddat illegal and void, be it in any form- spoken form, in writing or by electronic means such as email, SMS and WhatsApp or in any other manner whatsoever.

• It defines 'talaq' as 'talaq-e-biddat' pronounced by a Muslim man resulting in instant and irrevocable divorce.  Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.

• It makes declaration of talaq a cognizable and non-bailable offence. A husband declaring talaq can be imprisoned for up to three years along with a fine.

• Any offence committed under the Code of Criminal Procedure, 1973 will be treated as cognisable and non-bailable.

• It envisages entitling divorcee Muslim women for maintenance. It gives power to wife, upon whom talaq is pronounced, to approach a magistrate seeking subsistence allowance for herself and her minor children.

• A married Muslim woman will be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, which will be determined by the Magistrate.

• The Bill will help in ensuring gender justice and gender equality of married Muslim women and will help them in practising their fundamental rights of non-discrimination and empowerment.

Supreme Court's ruling on instant Triple Talaq

• The Bill was prepared following the Supreme Court’s verdict of August 22, 2017, which held the Islamic practice of 'instant’ triple talaq' as unconstitutional.

• The verdict was delivered by a 5-judge bench led by the then Chief Justice J S Kehar. All the 5 judges belonged to 5 different religions.

• The verdict came out in a ratio of 3:2, as two judges including the Chief Justice voted to uphold the practice saying that it cannot be declared illegal, while others called it unconstitutional and banned it for a period of 6 months till the government introduced a new law.

• The court also held that the practice of instant triple talaq was violative of Article 14 and Article 21 of the Indian Constitution. It also goes against Shariat and the basic tenets of the Quran.

What is the concept of Triple Talaq as per Islamic Law?

• Among Muslims, marriage is treated as a social contract and the Muslim Sharia (Islamic Law) provides the ways to terminate marriage in the form talaq.

• The term 'talaq' means 'freeing or undoing the knot', referring to a divorce.  

• Triple talaq is basically a process of Divorce wherein the husband pronounces three talaqs upon wife, one in each menstrual cycle, only to ensure that she is not pregnant.

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