By Vaishnavi Prasad

The Muslim Women (Protection of Rights on Marriage) Bill, 2019 or the infamous ‘Triple Talaq Bill’ was passed in the Rajya Sabha on 30th June with 99 for and 84 against.[1] This Bill makes the declaration of all forms of Talaq as a method of divorce illegal, whether it be oral, written, or electronic. The Bill makes this a cognizable offence where offenders can attract a jail term of three years. A cognizable offence is an offence where a policeperson may arrest an offender without a warrant.[2] To an uninformed layman, the passing of this Bill seems intuitively good, it’s something ‘progressive’; but the Bill and the circumstances surrounding it are slightly more problematic than that.

Legislative ambiguity

The way this Bill has been drafted is fraught with logical inconsistencies. Section 3 of the Bill declares any pronouncement of Talaq by a Muslim husband as void and illegal.

“3. Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.”[3]

When the pronouncement of talaq is declared void, it means that the aforementioned pronouncement has no legal effect i.e. one must treat it as if it did not exist.

However, Sections 5 and 6 provide for certain circumstances where pronouncement of Talaq confers certain custodial and maintenance rights on the woman. Section 5 provides married Muslim women an entitlement over a subsistence allowance for her[4] and her dependent children, and Section 6 establishes that the married Muslim woman shall be entitled to the custody of her children. [5]

In essence, these Sections act as a contingency for circumstances when the triple talaq is invoked by the husband despite this law. These Sections become problematic because they implicitly recognize the validity of the ‘talaq’ as a legitimate means of communicating divorce. When the first part of the Bill declares a certain act as voidbut it simultaneously goes on to recognize its validity by providing contingency scenarios, it creates an ambiguity within the Act. Without any reconciliation between the two contradictory provisions within the Act, this dilutes Section 3 to a point of absurdity.

Disconnected from reality

The Bill exists to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.”[6] First, the Bill does not address desertion. There is nothing to stop Muslim husbands from merely abandoning their wives without actually invoking the triple talaq. According to the last Census in 2011, a total of 2.37 million women across India identify themselves as “separated”.[7] Of these, 0.28 million women happen to be Muslim.[8] This Bill allows for individuals to circumvent the system and inflict injustice.

Second, the Bill is disconnected from the socio-economic reality of Indian Muslims. Significantly large number of Muslims live in poverty. In 2006, the Sachar Committee reported that one-third of Indian Muslims (31%) live below poverty line. The National Council for Applied Economic Research (NCAER) noted that more recently, 3 out of 10 urban Muslims subsist on a monthly income of Rs. 550 and less and 1 out of 5 rural Muslims subsist on a yearly income of Rs. 338.[9]

In such abysmal circumstances, Muslim women are particularly affected. Most Muslim families are highly patriarchal. Muslim women do not have the social and economic capital to take criminal action against their husbands. This is because even if the triple talaq is criminalized legally, there is a very real social stigma against the pursuing legal action against one’s husband. The word of the law may recognize the triple talaq as a crime but that cannot take away from the very real cultural power exercised by the word ‘talaq’.

Furthermore, even in the best-case scenario in the present matter, where a Muslim husband who invoked talaq gets imprisoned, the Muslim woman still suffers. Apart from being socially ostracized from her family, she is deprived of a sustainable form of alimony or maintenance from her husband in prison. The average Muslim woman in India would be particularly harmed because the socio-economic circumstances surrounding her life precludes her from reasonably accessing financial independence in and outside marriage.

Therefore, this goes on to show the absolute lack of engagement the Legislature has with the people in the ground level, the people likely to be affected by the contents of the legislation, and is something truly worthy of regret.

Vaishnavi Prasad is a third year student from NLU Jodhpur

[1] India Today Webdesk, History Made, Triple Talaq Bill Passed by the Parliament, India Today, https://www.indiatoday.in/india/story/triple-talaq-bill-passed-in-rajya-sabha-1575309-2019-07-30 (last accessed: 12th August, 2019)

[2] The Code of Criminal Procedure, 1973, s. 2(c)

[3] The Muslim Women (Protection of Rights on Marriage) Bill, 2019, s. 3 (Triple Talaq Bill)

[4] Triple Talaq Bill, s. 5.

[5] Triple Talaq Bill, s. 6.

[6] Triple Talaq Bill, Statement of Objects.

[7] Census, (Office of the Registrar General & Census Commissioner, India, 2011).

[8] Census, (Office of the Registrar General & Census Commissioner, India, 2011).

[9] Socially Exclusion and Inequality: Opportunities in Agenda 2030; Sustainable Development Goals (SDGs): Their role in ending inequalities in India, (Ranjan K Panda) p. 18.

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