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Triple Talaq Bill Needs Protective Approach Rather Than Punitive nature

"An eye for an eye will turn the whole world blind" - Mahatma Gandhi[1]

With the 42nd amendment of the constitution of India in the year 1976 added the word ‘secular’ to the preamble to declare India as secular nation. Secularism is the principle of the separation of government institutions and persons mandated to represent the state from religious institution and religious dignitaries (the attainment of such is termed secularity).

One manifestation of secularism is asserting the right to be free from religious rule and teachings, or, in a state declared to be neutral on matters of belief, from the imposition by government of religion or religious practices upon its people. Another manifestation of secularism is the view that public activities and decisions, especially political ones, should be uninfluenced by religious beliefs or practices. But ‘Secularism’ in India means equal treatment of all religions by the state. In fact in our original constitution our framers embodied the spirit of secularism and provided equal status for all religions and provided even protection for minority sections including related to religion. But the concept and spirit of secularism which has been practicing by India is different with western practice of secularism and it is a controversial topic even today in India.

However, neither India's constitution nor its laws define the relationship between religion and state. The laws implicitly require the state and its institutions to recognise and accept all religions, enforce parliamentary laws instead of religious laws, and respect pluralism. India does not have an official state religion. In matters of law in modern India, however, the applicable code of law is unequal, and India's personal laws - on matters such as marriage, divorce, inheritance, alimony - varies with an individual's religion. Muslim Indians have Sharia-based Muslim Personal Law, while Hindus, Christians, Sikh Indians live under common law. The attempt to respect unequal, religious law has created a number of issues in India such as acceptability of child marriage, polygamy, unequal inheritance rights, and extrajudicial unilateral divorce rights favorable to some males, and conflicting interpretations of religious books.[2]This conflict reached pick mainly regarding Islam personal laws implementation with regarding divorce. So, to avoid this criticism many emanates proposed for a uniform civil code that is equal civil laws for every citizen irrespective of his or her religion (in India already we are following uniform criminal code). But there are many supporters as well as opponents for this uniform civil code.

Opponents says that this concept of uniform civil code may be impose majority population that is Hindu ideas on Islamic religion which is not acceptable to Muslim community and may caused for religious conflicts. Supporters saying that Islamic personal laws mainly respect to marriage and divorce violating the principle of equal human rights, discriminates against Muslim women. So, they suggest India should move towards separating religion and state. After a long time because of many cries for protection of Muslim women recently Supreme court of India declared the practice of triple talaq as unconstitutional.[3]In this case in a majority 3:2 judgment the apex court set aside instant talaq as a “manifestly arbitrary” practice. It also said, “given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, Cannot ever take place”.[4]

Though India is the 3rdlargest Muslim population in the world, it has been slow to ban triple talaq through a law unlike most Muslim majority countries. 22 Islamic Countries including Pakistan, Bangladesh and Afghanistan have regulated triple talaq.[5]But in India to oppose a law to regulate triple talaq many people raising the issue of secularism and communalism, In fact triple talaq is not an issue of religion or faith. It is only an issue of gender justice, gender dignity and gender equality.

After a land mark judgment by Supreme Court of India on August 22, 2017 in the case of Shayara Bano v. UOI , BJP government proposed a Bill namely “The Muslim Women (Protection of Rights on Marriage) Bill, 2017” with an aim to make instant triple talaq or talaq-e-biddat as punishable offence.Law Minister Ravi Shankar Prasad, in the statement of objects and reasons attached to the Bill says that this legislation will, "help in ensuring the larger Constitutional goals of gender justice and gender equality of married Muslim women and help sub serve their fundamental rights of non-discrimination and empowerment."

What does the Bill say?
It makes the pronouncement of talaq-e-biddat "void and illegal." According to clause 3 of the Bill, "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."

What is the proposed punitive measure?
A man who pronounces talaq on his wife will be punished with a jail term and a fine. This Bill also makes the pronouncement of talaq-e-biddat a non-bailable offence.

Clause 4 of the Bill states, "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."

Clause 7 says, "an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the Code." (The Code of Criminal Procedure, 1973)

What are the benefits provided to Muslim women?
The woman upon whom talaq is pronounced will have to receive an allowance from her husband, and she retains custody of her children.

Clauses 5 and 6 of the Bill say, " 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," and "shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband."

Some of the lowlights of the bill
No doubt this bill is a wonderful step towards protection of innocent Muslim women and to eliminate gender bias. It was based on punitive nature but in fact it should be based on protective nature and aimed to provide better life to women. On this point this bill had with so many flaws. The All India Muslim Personal Law Board (AIMPLB) and various women’s groups too are ranged against this bill. The women’s groups are particularly opposed to the criminal provisions in the bill. More over they are claiming this bill as “very wrong law” and the bill was with full of flaws.[6]A section of MPs in the upper House had demanded that the bill be referred to a parliamentary committee for review. The following are the some flaws in the bill.

-Criminal Law interference with civil issue that to in a sensitive relation
This bill mainly aimed to declare practice of triple talaq as criminal offence. But it is fact that ascribing criminal nature to any matrimonial offence has always remained a contentious issue. It is fact that in Islam the marriage is a civil contract more over matrimonial relation is so sensitive issue it should deal with sensitive nature rather than harsh attitude.

-Simply punitive nature rather than protective
Since the beginning of the issue, scholars and many women groups have suggested that the legislature should have adopt the path of including it (triple talaq practice) as an act of infliction of domestic violence under the ambit of the Domestic Violence Act, 2005 wherein it could have been categorized as verbal and emotional abuse, covered under Section 3[7]of Act. This would provide a greater number of avenues to the women folk to seek resort to against the injustice inflicted on them due to the arbitrarily callous attitude of their husbands. More over this may provide more protection to women against violence and ensure right to residence in the marital home, maintenance, medical facility and compensation etc.

Though the bill seeks to bring the Muslim women on equal footing by ensuring they get their due share of rights like get the custody of the children accompanied with the obligation on the husband to pay sustenance allowance to the wife and his children it is not enough. More over this bill mainly aimed to criminalization of triple talaq and punitive approach towards practitioners.

-This bill creating fear among Muslim Men
The most important flaw is that this bill takes away the additional layer of judicial oversight that was present in the case of offences related to marriage to prevent third parties from seeking redressal of wrongs committed between two private parties. By making practice of triple talaq a cognizable offence under the bill. It gives police officers the power to conduct an investigation without bringing it to the notice of the concerned magistrate forthwith, the moment a police officer receives a complaint, without waiting for the magistrate’s order. This has raised the fear of Muslim men becoming soft targets, who the police can arbitrarily throw in jail for 3years based on any body’s complaint. This gives the police an additional handle to incarcerate the Muslim men.

-Inconsistencies within the Bill
There are some inconsistencies within the Bill itself, with the most glaring internal contradiction found in sec.5 and 6 which discuss about post divorce issues such as a “custody of children” and “subsistence allowances from husband” etc. if a marriage is dissolved by the mer pronouncement of talaq-e-biddat.

In fact, in section 3 of the bill it is clear that instant talaq is void and cannot result in a divorce then what is the need of sec.5 and 6. More over husband will be pushed into jail for 3years then who will pay the allowances.

It is the fact that this 3years imprisonment for male person is an ultimate and indirect punishment to innocent women. It may not give a chance to reconcile among wife and husband. This bill also suffer similar flaw as in case of section 498A of IPC which has turned out to be a futile piece of legislation.

-No possibility to reconciliation
Criminal recourse may ultimately closes all doors of possible reconciliation, even in as scenario where the couple may have been ready in the beginning to forego the animosity generated. Such penal policy can be considered as an interference in the personal matters as this takes away the opportunity from the errant husband to reconcile and thus may, in the longer run, have the effect of instilling a sense of insecurity and alienation among the minority Muslim community.

Let's not forget that Muslim women who went to the Supreme Court against triple talaq did so in order to save their marriage because Indian society looks down upon divorced women.

Already in case of section 498A of IPC throughout the country there are many cases where women using this section as weapon to deter husband and in-laws rather using it a shield to protect them. This bill will also become just like sec.498A.

-This bill also punishing innocent children
It is the fact that children needs love and affection of mother and father equally unless denied by nature. Under this bill, the woman will get the custody of children. Irrespective of religious consideration and other issues like divorce between wife and husband this is unfair on fathers. In all cases of separated and divorce families, children must be under joint custody. Fathers have a beneficial role in a growing child’s life. On that point this bill punishes children.

-Lack of equal rights among men and women
In the name of protection to one group arbitrarily denying the rights of other group is not a tenable step. This bill mainly concern with only the instant divorce issue. That to only empowering Muslim woman to take recourse from law but in fact it is not right step. Once the then attorney generalMukul Rohatgiinformed the Supreme Court that if instant divorce is struck down, the government would bring a law "to regulate marriage and divorce" among Muslims. But the Bill has failed to fulfil this promise.[8]

Conclusion
Like above there are so many flaws in the current form of the bill. It is better to write a new expanded legislation that addresses numerous question surroundingMuslim family laws. This is essential for reform among Muslims and their integration in the emerging social order of India. A Muslim family reform bill must outlaw all unilateral forms of divorce by a Muslim husband. It must also outlaw practices such asmehr, halala,polygamy, two Muslim women's testimony being equal to one man's, the girl's inheritance being half of a boy's, the guardianship of male over female, and so on. These are real issues facing the Muslim families. Considering the plight of Muslim women, this decision was a necessary requirement. However, the single-step criminalization of the same is something that needs legislative reconsideration in a manner that the primary objective of safeguarding the rights of the Muslim women and their family is not defeated.

End-Notes
[1]Mahatma Gandhi used the phrase "An eye for an eye, and soon the whole world is blind", in reference to his Satyagraha philosophy of non-violent resistance.
[2]Available at : https://en.wikipedia.org/wiki/Secularism_in_India
[3]Shayara Bano v Union of India, (2017) 9 SCC 1
[4]Available at : http://www.thehindu.com/news/national/what-is-the-instant-triple-talaq-bill/article22296008.ece
[5]Available at : http://economictimes.indiatimes.com/articleshow/64403212.cms?utm_source=contentofinterest&utm_ medium=text&utm_campaign=cppst
[6]Available at: https://economictimes.indiatimes.com/news/politics-and-nation/triple-talaq-bill-has-many-flaws-says-aimplb/articleshow/62835832.cms
[7]Section 3 in The Protection of Women from Domestic Violence Act, 2005
Definition of domestic violence.—For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—
(a)harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b)harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c)has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d)otherwise injures or causes harm, whether physical or mental, to the aggrieved person. Explanation I.—For the purposes of this section,—
(i)“physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii)“sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii)“verbal and emotional abuse” includes—
(a)insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b)repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv)“economic abuse” includes­—
(a)deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b)disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c)prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.
[8]Available at : https://www.firstpost.com/india/triple-talaq-bill-is-flawed-in-its-present-form-rajya-sabha-must-amend-it-or-send-it-to-the-dustbin-4287015.html

*Assistant Professor, Smt. V.D. Siddartha Law College, Kanuru, Vijayawada, Krishna District, Andhra Pradesh, India. E-mail: anuradhakoneru988@gmail.com

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