By Sunil Garodia
The Triple Talaq Act is finally a reality. The Act makes triple talaq, or using talaq three times by a Muslim man to divorce his wife, by any means - verbal, written, digital or any other - a criminal offence punishable with three years in jail and fine. It makes the offence cognizable and non-bailable. It provides that the divorced wife would have the right to claim custody of the children and demand maintenance for herself and dependent children.
Although the Supreme Court had previously declared triple talaq to be invalid, the Act seeks to put it in statute rather than let the matter hang on judicial fiat. Further, there are many consequences of triple talaq which were not addressed by the Supreme Court order. The Act seeks to put them in black and white so that the law guides the courts. For instance, if an act has already been declared a crime and a person is prohibited from doing it, will it stop if the law does not provide for a deterrent? Hindus cannot marry a second time during the subsistence of their first marriage. One of the conditions for a valid marriage under Section 5 of the Hindu Marriage Act, 1955 (HM Act) is that neither of the party should have a spouse living at the time of the marriage. Under Section 11 of the Act, second marriages can be declared null and void. Section 17 of the H M Act provides anyone who commits such an offence be punished as per sections 494 and 495 of the IPC, which provides for a jail term of seven years with fine and if the person conceals his or her first marriage from the second spouse, a jail term of 10 years with fine. The Triple Talaq Act also provides that the Muslim man who commits this offence can be handed a three-year jail term and a fine.
The major difference in the two laws is that the Triple Talaq Act makes the offence compoundable at the instance of the divorced wife. The wife, against whom talaq is pronounced and who would normally be the complainant, can drop the charges against her offending husband. But the Act leaves it to the wisdom of the magistrate who can lay down the terms and conditions that the couple would have to follow for granting permission for the wife to withdraw the charges and drop the case. The other big difference is when it comes to granting bail. Since the law is non-bailable, the accused has to be produced before a magistrate for bail proceedings. In normal cases, the magistrate can grant bail after hearing the investigating officer if the complainant does not file a separate petition to be an intervener. But under the Triple Talaq Act, it is mandatory for the magistrate to hear the wife against whom the talaq was pronounced before passing any order.
The other major difference (although this is now being adopted in all laws that seek to stop gender abuse against women) is that the magistrate in the area where the women lives will have jurisdiction to hear the case. This is very important as it becomes very difficult for a woman to pursue a case if the court is not near to where she lives. If the jurisdictional court is at the place where the offence was committed and if the woman's paternal home or friends' home (where she is normally expected to go till an alternative emerges) is in another town, she would be hard-pressed to attend hearings and get the accused punished. By making things easier for her, the Act ensures that it is one hurdle less for her to cross in her quest for justice. The Act also provides for the wife to claim custody of her minor children and claim subsistence allowance, or maintenance, for herself and all her dependent children.
The opposition to the Act from self-styled guardians of the Muslim society, mostly male, and from the Opposition parties, is untenable. The Muslims feel that the government is interfering in their religion by trying to criminalize something that is permitted by their personal laws. Syeda Saiyidain Hameed, the noted Muslim historian, wrote that "the clear instruction in the Quran is as follows: At-talaaqu marrataan: fa-imsaakum-bima`-ruufin `aw tasriihum-bi-ihsaan. Wa la yahillu lakum `an-ta`khuzuu mimmaa`aatay-tumuuhunna shay-`an `illaaa. Surah Al Baqr, 226. This means that talaq must be pronounced twice (in two months) and then (a woman) must either be retained in honour or released in kindness. Further, it says, it is not lawful for you that you take from women anything which you have given them. The commandment is clear. Talaq has to be pronounced twice with an intervening period in which to rethink, reconsider and reconcile. For this, the important instruction is to take time, then, again, take more time, during which period there should be interlocutors from both sides to try to mediate the conflict. After the second talaq, there is still an intervening period, during which the husband has to think about the two choices available to him; either reconcile with his wife in an honourable way or pronounce the third (irrevocable) talaq with kindness and let her go. At the end of the third interval, he must exercise this choice. But then follows the absolute command. If he decides to let her go, he must do so "without taking from the woman anything you have not given her". The spirit of the Quran with regard to the process of divorce and the divorced woman, as reflected in this command to the man, is imbued with sensitivity towards women. The same command is repeated in Section 241 of the same Surah as a reminder to Muslims that in matters of talaq (as in other matters) women must be treated with utmost kindness."
Triple, instantaneous, verbal talaq, in any event, is repugnant to the spirit of Islam. Further, many Muslim majority nations that follow the Shariat or Muslim laws have already declared triple talaq illegal. The Opposition parties, on the other hand, wrongly think that they will preserve their Muslim vote banks if they go against the government on this issue. One says wrongly because they forget that Muslim women comprise nearly half of this so-called vote bank and most of them think that the Triple Talaq Act will bring dignity to their lives.
The other objections are in regard to punishment and payment of maintenance. The Muslims leaders question the need to punish someone for something that has already been declared illegal by the Supreme Court. But as said earlier in this article, a deterrent is needed to prevent people from breaking the law. If the Muslim man knows he can be jailed for pronouncing triple talaq, he will think twice before breaking the law. As regards maintenance, it is questioned how a Muslim man will provide it if he is in jail. This is a specious argument as the world does not stop if a person is jailed. If he is a salaried person and his salary stops on being jailed, the courts will ensure that the maintenance is paid from his savings. If he is a businessman, then it will be paid from his profits or his savings. If the person is at all unable to pay, so be it but the provision has to be there to provide succor to the divorced women and the children and as far as possible, it will be the endeavor of the courts to facilitate the payment of maintenance. The Muslim leaders had vehemently opposed maintenance at the time of the Shah Bano case too and got Rajiv Gandhi to reverse the Supreme Court order by getting the Muslim Women (Protection of Rights on Divorce) Act, 1986 passed which had nothing to protect their rights despite its name, but this time their protests will not work. The Muslim community should realize that the Act is a big step towards providing Muslim women the same rights and privileges that are being enjoyed by their contemporaries in other Muslim majority nations. The Act is a big step in breaking the hegemony of the self-styled guardians of the Muslim community who have highlighted selective Surah's of the Holy Quran to keep their womenfolk as chattel.