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Seeds Of Triple Talaq Bill In Shah Bano Case

By Harihar Swarup


Mohammed Arif Khan, a minister in the Rajiv Gandhi government, was seen vehemently pleading for retention of punishable clause as the Rajya Sabha took up triple talaq Bill for discussing. It was his rare visit to the Central Hall of Parliament and he was trying to convince some senior Congress members that the clause envisaging, “imprisonment for a term which may extent to three years”, was necessary to discourage the practice of talaq-e-biddat (three pronouncement of talaq, at one and same time). His point was that unless there is fear of stringent punishment, no law can be enforced. Same was the case with triple talaq Bill now.


Arif had become a hero of oppressed Muslim women in what was commonly known as the Shah Bano case in 1986. It was the controversial maintenance lawsuit in which the Supreme Court delivered a judgment favoring that maintenance be given to an aggrieved divorced Muslim woman by her estranged husband. The then Congress government, headed by Rajiv Gandhi, gave in to the pressure of Muslim orthodoxy and enacted a law with its most controversial aspect being the right to maintenance for the period of iddat (after the divorce). It shifted the onus of maintaining a divorced Muslim woman to her relatives or the Wakf Board. It was seen as discriminatory as it denied right to basic maintenance available to non-Muslim women under secular law.

Arif Khanhas always called for reformation within Muslims. He resigned from the position of Minister of State protesting against Rajiv Gandhi Government’s stand on Shah Bano case in 1986. He vociferously defended Supreme Court judgment on Shah Bano case in Parliament. Arif opposed triple talaq and said that it should be punishable with three years in jail.


Coming to the present time, the Supreme Court in the matter of Shayara Bano vs Union of India and others on August 22, 2017 set aside the practice of talaq-e-biddat (three pronouncement of talaq) practiced by certain Muslim husbands to divorce their wives. This judgment gave boost to liberate Indian Muslim women from the age-old practice of capricious and whimsical method of divorce, by some Muslim men, leaving no room for reconciliation.


In spite of Supreme Court setting aside talaq-e-biddat, there have been reports of divorce from different parts of the country. It is seen that setting aside of talaq-e-biddat by the apex court has not worked asa deterrent in bringing down the number of divorces among certain Muslims. It is, therefore, felt that there is need for state action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce, says the Muslim Women (Protection of rights on Marriage) bill, 2017.


The Congress members pointed out during the debate in both houses of Parliament that the party is not opposed to the Bill as such, but has opposed the three-year punishment, which it felt was too harsh. If the head of the family is sent to three years imprisonment, who would look after the family, the divorced woman and children, Congress members asked. They wanted the Bill to go to a select committee so that it could be further examined. Many Opposition parties too supported the Congress on this point.


Few days before Parliament adjourned sine die, Union Law Minister Ravi Shankar Prasad and Minister of State for Parliamentary Affairs, Vijay Goel, met Leader of the Opposition in Rajya Sabha Ghulam Nabi Azad, seeking Congress support for the passage of triple talaq Bill that had sailed through Lok Sabha on December 28.


Azad pointed out his party’s reservation over the provision in the bill for three-year term for any Muslim man who divorced his wife by uttering talaq three times in quick succession. He told Prasad that putting the bread-winner of a family in jail would not just be injustice to his family, but also to the women and children as they would be left to fend for themselves without financial support during the period.


The Law Minister was reportedly told that the Congress would be ready to support the Bill, even with criminal clause, if the government takes up the responsibility of financially supporting all such Muslim women whose husbands are in jail for pronouncing triple talaq. The Law Minister did not agree to the proposal.


Azad reiterated his suggestion in the Rajya Sabha a day before Parliament adjourned since die: “Till the time a woman’s husband is in jail who is going to pay for the family’s maintenance? The government should pay the women subsistence allowance. Let them do this, and we will support the Bill.”


The Congress, which has been demanding removal for the criminal provisions in the bill, stuck to its demand for referral of the Bill to the select committee.


The triple talaq bill got stuck in the Rajya Sabha as the Parliament adjourned sine die, as scheduled, on Friday. The Bill will now be taken up in the budget session of Parliament when it meets on January 29. (IPA Service)


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