DNA Edit: Triple Talaq – Ordinance route has shown govt’s scant regard for Rajya Sabha

The Union Government resorting to an ordinance to criminalise instant triple talaq, or talaq-e-biddat, raises several questions related not so much to the objective and content of the law as to the route it has chosen and the underlying rationale of the measure. To deal with the latter first, marriage is a civil contract and accepted as such even among the devout who hold it to be an indissoluble sacrament that is at best sanctified as a civil arrangement. In the event, how can the process of unmaking a marriage – even if the process be wrong, unjust, peremptory, irrational and cruel – be criminalised, and made cause for prosecution as a non-bailable offence that could end in a jail term? Both law and logic ought to dictate that the process of breaking up of a marriage, like the marriage itself, should remain at all times a civil matter and does not lend itself to be criminalised. However, none of the political parties has raised this central issue because in the prevalent perception, even if the principle of modernity is sought to be selectively applied – to women of the Muslim community alone and not other communities – there is general agreement that the practice of instant triple talaq is abhorrent and must be ended. Thus, the matter has gone far beyond this and at issue now is the provisions of the law which the Centre is seeking to enact. 

The Lok Sabha has already passed the Muslim Women (Protection of Rights on Marriage) Bill, which only seeks to embed in law the Supreme Court ruling of 2017 that had declared instant triple talaq as illegal. Under the provisions of this Bill, instant triple talaq is punishable with a fine as well as a sentence of three years in prison. (It should be mentioned that the apex court holding this form of talaq to be illegal does not make the act criminal – it only means that the marriage remains unbroken because instant triple talaq is no longer applicable). None of the parties, certainly not the Congress party can openly oppose the Bill and its provisions without paying the political and electoral price for it. Therefore, the opposition parties proposed changes in the Bill that had been passed by the Lok Sabha. Since the government did not accept the changes at that time and the Opposition did not relent, there was no consensus. In the absence of an all-party consensus, the Opposition’s notice for amendments to the Bill was not taken up by the government in the last session of the Rajya Sabha. However, the ordinance has incorporated in the law some of the changes demanded by the Opposition. These include the introduction of provisions for: granting bail to the offending husband by a magistrate after hearing the affected wife; making the offence cognisable only if the woman (against whom the talaq-e-biddat is pronounced) or her relative by blood or marriage, files the police complaint; and, making the offence compoundable, that means, allowing the parties to settle the matter mutually without invoking the law. These changes, to a large extent, address the issues and concerns raised by the Opposition and may go a long way in acting as safeguards against the misuse of the law. But, the merits of the Bill are now overshadowed by the government taking recourse to an ordinance.