Triple Talaq: The Muslim woman (protection of rights on marriage) Act, 2019.
Author:Reetambhar kumar Das,
3rd year BBA.LL.B(H),
Adamas University, Kolkata.
Abstract
Triple talaq is on of the form of Talaq forbidden by the Muslim personal laws. Presently it is banned in India. The author intends to highlight different forms of talaq along with its effect. The Muslim woman (protection on marriage) Act 2019 passed by Indian parliament has been critically analyzed in this paper. From this paper the authors also draws attention towards the fact that how Uniform Civil Code plays an important role but it is not implemented anywhere apart from the state of Goa. Lastly the authors will conclude the paper with some suggestive measures.
INTRODUCTION
TRIPLE TALAQ- A law to apply or to criticize?
India is a Secular country respecting all religions prevailing in this country, but which does not have its own religion. Though we say India is a secular country yet all the personal laws have its own succession laws, marriage laws, divorce laws, child adoption and custody.
Under Muslim law the forms of divorce is quite different unlike that of other personal laws where the competent Court declares the dissolution of any marriage. There are 3 forms of talaq under Muslim law- Talaq-e-ahsan, Talaq-e- hasan and Talaq-e-biddat.
Talaq –e-ahsan- In this form of Talaq the husband pronounces divorce under one instance keeping in mind that the wife is not in her menstruating cycle and then has to wait for the iddat period. If before completion of the iddat period the husband has any sexual intercourse with the wife, the divorce is revoked.
Talaq-e-hasan –It is the proper form of talaq. Three successive pronouncement of talaq are made in three successive tuhrs (when the woman is not menstruating). This form of talaq is revocable before the third pronouncement.
Talaq-e-Biddat or Triple talaq is instant talaq and is effective as soon as the word talaq is pronouncement. In this form of talaq, three pronouncements can be made during a single tuhr.
After the famous landmark case of Shah Bano v. Union of India [1] the Supreme Court ordered the Rajiv Gandhi Government to form a Uniform Civil Code, but the Government was not satisfied from the Court’s decision and thus they enacted the Muslim woman (protection of rights on Marriage) Act, 1986.
On August 2017, Supreme Court by a majority of 3:2 declared the uttering of the word Talaq will not automatically dissolve the marriage, and is considered as void. Together with, upholding the legitimacy of the marriage and pronouncement of Triple Talaq is made void.
The Government came up with the amendment in the Muslim woman (protection of rights on marriage) Act, 1986, also known as the “triple talaq bill”. The bill was introduced in the Lok Sabha on June 21, 2019 which was passed by the Lok Sabha by majority on July 25,2019 and was finally passed by Rajya Sabha on July 30,2019 .Though this Act contains 8 sections, yet it suffers from numerous criticisms on the nature of the bill.
Sec 2(c) of the Act says that “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. The word ‘talaq’ instead of Triple talaq means it forbids all kinds of Talaq whether it’s approved form or not is insignificant. The Honourable Supreme Court has acknowledgment the word “triple talaq” in this Judgment where Muslim husband have unilateral right on other forms of Talaq like –Talaq-e-Ahsan, Talaq-e-Hasan etc and all the forms of Talaq becomes irrevocable irrespective of the limit on the third and last pronouncement of talaq. The Act itself stops other manners of divorce by the Muslim husbands on Muslim wives by uttering triple talaq at a time or single sentence.
Under Muslim law, the marriage is a pure Contract which involves the offer, acceptance and Consideration and along with one witnesses from both side and another independent male witness (the lawyer itself). As for the dissolution of the marriage between two Muslim duo parties, the parties need to approach the District Court which means the nature of divorce is of civil nature and therefore it cannot be painted with the colour of Criminality.
Sec 7 of the said act makes the offence, non-Bailable and compoundable. Sec 2 of Criminal Procedure Code 1973 talks of Bailable offence which is also mentioned in Schedule I of the CrPC that an offence in order to be a Bailable offence would be an offence carrying a punishment of less than 3 years or with fine only.
Making the Section Compoundable is a meaningless. It’s a normal psychology that the wife (victim) will not sent her husband (accused) in Court just to bring him back again and to live with him under the same room, though the intention of the law-makers was to bring the Couple back again under the same house but after a husband is being arrested and the Court proceedings starts its of no use. Bail will also be granted only after the Court hears from the wife or only after an application is filed for releasing the husband on bail. In this case the Court has no discretionary power but again the shield lies on the hand of the wife.
Under Sec 5 of the Act the legislatures have failed to look into the matter about the maintenance and fine, and have left the full matter on the judiciary to decide the amount of fine to be imposed, the amount of maintanance to be awarded by the Husband. It was to be kept in mind that India is a developing Country and not a developed Country and hence it would be difficult for daily wage workers to pay the maintenance amount to the wife and to the children (if any).
Talaq-e-biddat or Triple talaq is considered as a bad form of talaq as it does not leaves any room for the spouse to reconcile or to revive their marriage. It means actually throwing away the opportunity of any futher reconciliation between the spouse. Sec 89 of the Civil Procedural code 1963 talks of settlement of disputes outside the Court. The provisions read as follows:
“Settlement of disputes outside the Court. Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for – (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation.
Also under Sec 9 Family Courts Act 1984 the provision says that: Duty of Family Court to make efforts for settlement.
In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
Indian Court is always in the favour of saving the sanctity of the marriage and always leaves the door open for the couple to reconcile and this is the reason under the above law mentioned there is a scope for a fresh start.
The last and final point that is again a very vital point is to see into the fact that practice of Triple talaq itself is void, so if anything which is void, is it so necessary to make that thing punishable under law? Anyways the pronouncement of triple talaq will not put the marriage into an end but it will surely increase the rate of crimes against womans by their husband itself. When a relationship gets toxic it’s better to end that relationship by valid a Court proceeding, that is to say to believe on the assumption that “what cannot be mended should be ended”. As now the Husband cannot give instant talaq this will result into more torturer life of the wife and may led to the commission of the offence by the Husband.
Though the intention of the legislature was to end this illegal and instant form of talaq under Muslim law but it may be seen as a failure on their part in implementing a proper legal protection for the womans. Hence legislature by introducing this law has not only put a complex part on the woman but also has introduces a path way for the commission of more heinous crimes by the Muslim husbands on Muslims womans.
CONCLUSION AND SUGGESTIONS
The government has time and again tried its level best to incorporate a Uniform Civil Code for the whole country. Starting from the very beginning the British government in 1840 on the basics of Lex-Loci report had framed uniform laws for crime, evidence, and contract and has left the personal law somewhere intentionally. Constituent Assembly was set up to frame our Constitution in 1946 where Dr. B.R Ambedkar proposed to introduce a uniform civil code for the whole country. Subsequently the proposal was rejected and opposed by the minority communities and as a result one line was added in the Constitution of India that is Art 44 in part IV of Directive principals of state policy-“The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India“.
The provision leaves open whether such a UCC would actually replace or simply complement the personal laws. It is at the need of the hour where there would exist only a common civil code around the country. In fact, it is the corner stone of true secularism. Such a progressive reform would help to end discrimination against woman in matter of religion and will strengthen the secular fabric of the country and promote unity among Indians.
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[1] 1985 SCC (2) 556
