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Govt mulls ordinance as talaq bill faces flak

Dileep Shora

There are a lot of ways to come at this story, but one way to say it is that when brought to a halt in any endeavour, then the easiest way to get out of that bind is to come up a drastic remedy – like an Ordinance! But a Pakistani Islamic scholar says the government is only inviting trouble.

News is that the government is “mulling” the decision. Meanwhile, a Sharia scholar of Pakistan has said the bill in its current form is fraught with problems that will come to the fore when the bill becomes an Act.

The government is looking at all options including convening a joint session of Parliament in the Budget Session to get the bill passed bypassing the Rajya Sabha where the numbers do not stack up for the government.

The bill went through Lok Sabha without a hitch because the Congress opted to either stay away or voted with the ruling party. But the Upper House was a different ballgame altogether. Even NDA ally TDP does not want to criminalize triple-T.

The opposition in RS wanted the bill to be referred to a parliamentary committee for review. The BJP sees in the demand a Congress move to steal its thunder. It is another matter that the All India Personal Law Board and some sections of Muslim women also do not want criminalization of triple-T.

The bill proposes to make triple-T a cognizable and non-bailable offence. The opposition to this that if the husband is sent to jail how will he be able to earn to pay for the upkeep of the “wife” and children?

The Muslim women (Protection of rights on Marriage) Bill, 2017, seeks three years in jail and a fine for those who break the triple-T law. The Supreme Court had declared triple-T unconstitutional in August 2017 and had asked the government to pass a law.

India is probably the only country in the region and around where Muslim men still divorce with triple or instant talaq. Twenty-two countries, including Pakistan and Bangladesh, have banned the practice.

A Pakistani Sharia scholar, Muhammad Munir, said that the way the Indian triple-T bill is drafted, it has shortcomings, which will lead to problems once the bill becomes law. Talking to an Indian news website, Muhammad Munir of the International Islamic University, Islamabad, compared the punishment prescribed for Muslim husbands in India for resorting to triple talaq with how Pakistan penalises them for not following the law on divorce and said that he had “reservations” regarding most of the provisions of the Indian bill.

He questions the very definition of talaq in the bill. “Talaq means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband. Frankly, I have never seen such a definition of talaq in Islamic jurisprudence or statutory laws of any Muslim state. This is something unique,” he told the website. “This Bill makes all forms of talaq appear the same and illegal as well. There should have been a broader definition of talaq. They should have provided a legal mechanism as to how a husband should pronounce talaq. This Bill is silent on it.”

According to Munir, countries opting for reform ensure talaq is pronounced in the court, and that it is not recognised as talaq if it has been done outside it. “This is how it is done in Algeria. There, a man wishing to divorce his wife has to approach the family court,” he said. “The judge then has to find out the reason why the husband wants to give talaq, decide whether the reason cited is justified, and seek to reconcile the husband and wife.”

The court is given 90 days to bring about a reconciliation between them, failing which the husband is allowed to pronounce one talaq in court. In some countries, it has to be pronounced before two witnesses. This ensures the door to the revocation of divorce remains open, he said.

“If I am a Muslim husband in India, how do I divorce my wife? There is no mechanism provided in the bill,” he said. “Problems will arise when or if this bill becomes an Act. I can very well see what will happen.”

According to him, the husband, knowing or believing that he can pronounce triple talaq, will do so. The wife will then lodge a complaint with the police and the husband will be arrested. However, once the case goes to court, the wife has to prove that the husband has resorted to talaq-e-biddat.

How is she going to furnish evidence? The court, after all, was not involved in their divorce. In most cases, triple talaq is not pronounced publicly or before witnesses. Men mostly pronounce triple talaq in anger. The husband will deny before a judge that he resorted to talaq-e-biddat.

“This is typical. We see such cases in Pakistan. It will be the same in India,” Munir said. “The Bill sends the husband to jail, gives the wife maintenance money and custody of her children. But she should have also been given her dower. I am surprised the Bill should have glossed over it.”

The problem with the bill, he said, is that it seeks to protect the interests of women. But it will end up not protecting the interests of women and expose men to new dangers. For the very simple reason that it would be difficult for a woman to prove that the man has given her triple talaq in one sitting. Yet, he would be arrested.

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