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Muslim Divorce In India: An Analysis of Triple Talaq Bill of 2018

The word "divorce" is well-known all around the globe and the concept of dissolution of marriage is found in every religion and language. Marriage, according to the concept of Islam is an alliance that has the nature of a social contract and can be put to an end when it fails to fulfill it's purpose. Islam has a practical and realistic outlook on all human affairs and as a result of that it has recognized divorce but only as a necessary evil. Thus, resort to divorce must be taken only in inevitable circumstances. No one can refuse that at times such circumstances arise that makes it almost impossible for the couple to pull together and live peacefully and happily in their conjugal home. And in such situations, it is better to part ways rather than dragging on with the bitter, miserable and weak reality in a partnership that is forced. It is more conducive for the couple to part ways with good will and grace. 

Talaq, Khula, Mubarat are a few methods of dissolving a Muslim marriage. 

Triple Talaq was recognized by Sunni Muslims and unfortunately it gained prevalence in the entire Muslim society of India. 

Holding it to be a form of divorce is not simple. It is problematic and complex. This method of dissolution created many socio-legal issues in the society. Among all the rules and regulations of the Muslim Personal Law Board that have been criticized and protested against adversely, Triple Talaq has been on top. It is an extremely sensitive issue that has touched the lives of Muslim women. This process developed through various stages of history and if we go back to the controversies that cropped up after every few days with every case being filed in the courts, show that it was a method widely resorted to. 

Seeing through what was the social aspect of Triple Talaq, it must be borne in mind that the society of Indian Muslims in the present day were very far from the true Islamic teachings, principles and values. In simple terms, it can be said that Islam and Muslims are two different concepts that are far from each other. 

Many Muslim sects have rightly waived off the effectiveness of Triple Talaq as an irrevocable form of divorce. It's rigidity has been put to an end. They have made the law of three divorces altogether amount to one revocable divorce. The courts started departing from their old approaches that were rigid and are inclining towards the views and approaches that are progressive. Hence, the courts are resorting to the Quranic way of marriage dissolution.

In recent years, rights of women have been ameliorating by advanced interpretations of Muslim Law by the judiciary. These verdicts are markers that serve to support the rights of Muslim women. 

After a long battle of cases like, Shah Bano (1985), Danial Latifi (2001), Shamim Ara (2002) and finally Shayra Bano (2016), the Indian Government formulated a Bill known as The Muslim Women (Protection of Rights on Marriage) Bill, 2018 on December 28, 2017. The Bill made Talaq-ul-Biddat or Triple Talaq in any form, spoken, in writing or by electronic means such as email, SMS and instant messengers illegal and void. 

The prominent features of the Bill are:
1. Declaration of Talaq-ul-Biddat to be void and illegal
2. Punishment upto 3 years and fine for resorting to it
3. Subsistence allowance to protect the rights of married Muslim women from husband for herself and dependent children. Amount to be determined by the Magistrate. 
4. Custody of minor children shall be granted to the woman
5. Offences under this Act cognisable and non-bailable.

Frailty of the Bill:
1. Criminalisation of the practice- Bill ends up criminalising a law since the concept of marriage is of civil nature.

2. Discriminatory in nature- Muslim men can be prosecuted even without agreement of the wife, due to declaration of illegality. Three year jail term for the husband particularly when in no other religion is there such inclement punishment for uttering three words.

3. Removal of judicial oversight-Making the offence cognisable, the police have the authority of arresting the husband without leave of the court.

4. Custody and allowance- Section 3 declares talaq to be void implying that it cannot result in divorce, yet the Bill goes on to discuss post-divorce matters. Since talaq has been declared illegally void, the husband-wife relationship still persists.

5. Virtual shutting of the doors on any possibility of reconciliation.

The Islamic policy never meant to confer an absolute authority of talaq upon a husband to be misused by him. Unfortunately, this unrestricted power was always misinterpreted and gravely distorted and the actual guidelines of Islam for it, was flouted by the society as well as the courts. Islam leans in the favour of subsistence and saving the marital tie and not on divorce and separation. The main motive was and still is protecting the women who were victims of this weapon of Triple Talaq in the hands of husband's to escape their obligations.

There can be no doubt that Triple Talaq was a wicked and reprehensible act both in law and theology. It has been asserted in various verses of the Quran and traditions by Prophet Muhammad (PBUH). 

It was never a part of Muslim Law and can never be. Quran clearly illuminates the method of dissolution of nuptial ties, thus only that method must be resorted to. 

References: Swaniti-Initiative.pdf

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