The Debate On Tripal Talaq

Tripal Talaq

M J Akbar, with his contained hysteria, has strongly supported the triple talaq bill introduced by Union Law minister Ravi Shankar Prasad in Lok Sabha on 28th December 2017. He has addressed every question which the prime time debates of every news channel take up.

The Muslim Women(Protection of rights on marriage) bill makes Talq-e-biddat (instant Talaq) declared by any person upon his wife, by words, either spoken or written or in electronic form or in any other manner, null and void. It also criminalizes the practice and proposes imprisonment (non-bailable) for 3 years along with penalty. The jail term and criminalizing part has been opposed parties such as All India Majlis-e-Ittehabul Muslimeen (AIMIM), Rashriiya Janata Dal, Biju Janata Dal, AIADMK, All India Muslim League, and some of them also strongly opposed the way it has been introduced. Terming it in M J Akbar’s words, “Some oppose it as saying that it destroys Islamic culture!” Mentioning the existence of imposition of 7 year imprisonment for practicing bigamy in Indian Jurisprudence, M J Akbar has trashed the arguments to re-frame the clause in chapter III of the bill, pertaining to 3 year jail term. He has opined that it is necessary to keep such instant talaq practices outside the social system considering the numerous cases which kept women in limbo from law.

Scrutiny finds that, Quran does not provide for Talaq-e-biddat, it is a practice which emerged from outside the book. This practice is considered as bad in Islamic theology. In fact, Islam, in its progressive stance on marriage, allows for divorce, and indeed one that is bound by procedures — Quran provides a long procedure for divorce which is made considering the fact that the partners wish to break the contract of marriage, while providing time for reconciliation. But, there is no mention of giving talaq in a single sitting just by uttering it thrice or expressing it in any manner.

2:226 – “For those who take an oath of abstention from their wives, a waiting for four months is ordained; if .then they return Allah is Oft-forgiving, Most Merciful”

2:228 – “Divorced women shall wait concerning themselves for three monthly periods. And their husbands have the better right to take them back in that period, if they wish for reconciliation. And women shall have rights similar to the rights against them, according to what is equitable.

Before giving Talaq, the husband has to take an oath of abstention, and a period of 4 months is ordained. These four months can be considered as a period to rethink the decision. Even after giving Talaq, 3 months of gestation period is given during which the couple can reunite. If Quran is an accepted part of Islamic law, Talaq-e-Bibbat itself becomes unsuitable for Islamic culture. Apart from the procedure laid out in Quran, any women of India can opt for legal divorce as provided by Indian Jurisprudence.

Quran also asks to provide a necessary remuneration for wives and children if divorce is taken. It provides a way for post-divorce life in an equitable and justiciable manner. This bill also provides for seeking subsistence allowance for wife and dependent children similar to that provided in Quran. Thus, the clauses in chapter III of the bill, which provides for protection of rights of married Muslim women ,actually support Quranic verses rather than rendering them as redundant which is argued by some.

2:236 – “There is no blame on you if you divorce a women before consummation or fixation of their dower; but bestow on them, the wealthy according to his means and the poor according to his means – a gift of reasonable amount is due from those who wish to do the right thing.”

Coming to the clarity on the bill, there was no mention about the alternative subsistence if husband is not capable of any. In the Muslim women bill, 1986 there is a provision which says, state board would provide the remuneration, but there is no mention of it in this bill. No clause tends the problem of raising children. If the mother is unable to handle the burden, how does magistrate decide on the custody of children? There must be a provision to amicably settle the problem of custody of children between the partners and their families which would bring more scope for risk aversion of child’s future. Coming to the provision of allowance, government should provide for financial and rehabilitation assistance through a board if needed.

Another provision that needs urgent discussion is the part that calls for criminalization. As the intent for crime cannot be proved, this provision comes under scrutiny. However, looking at the previous and other laws made by supreme court, even the latter provision may stand still.

It is also important to note that this has been drafted on the lines of THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986, where the protection is now offered even for the marriage and from unlawful, immoral, inhumane Talaq-e-biddat. The previous act was welcomed with much pride and happiness as it was considered as an upholder of fundamental rights, especially for Muslim women.

Contrary to the allegations that the bill violates the right to practice any religion, it can be claimed that the bill does not violate the provisions of article 25 and 26 of the constitution but rather strengthens article 14, 15, 19, 21, and also 25 and 26.

At the same time, it is necessary to consult primary stakeholders — Muslim women — before any consensus is established. There is a need for necessary clarification. It remains to be seen whether said clarification would be provided in the draft before taking the bill in Rajya Sabha.

“Don’t destroy the good in search of Ideal” were the words spoken by M J Akbar at the end of his speech in Lok Sabha — an apt perspective to sum up this discussion.

-Contributed by Arun Teja

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