By Salman Khurshid
January 23, 2018
The triple Talaq bill did not go through in the Rajya Sabha after all, much to the chagrin of some media channels. Appeasement charges ruled the day. Both sides in Parliament screamed betrayal of the ‘weaker sex’ – if that description is not itself discriminatory.
BJP said Congress and other opposition parties were giving in to vote bank politics to deny women their rights – as if women do not have votes. Congress and the rest said the government was reluctant to do enough for women. Somewhere there was a formal rejection of criminalisation. But all statements were ex cathedra and without sound reasoning.
What was lacking in logic was sought to be made up by sound and fury. Without disrespect to BJP their case boils down to ‘use gender justice to inflict injustice on Muslims’, or kill a bird twice with the same stone. It is therefore important to understand the entire matter.
Talaq is effective even if said once (of course with such conditions as just cause and after mediation by representatives of both husband and wife). But during the Iddat of three months – during which the wife cannot remarry – it can be taken back by the husband. After a month or two it can be repeated to reaffirm but can still be taken back.
However when it is said the third time at the end of Iddat it becomes final, though even without the third time Talaq becomes final when Iddat expires. The only difference between two pronouncements and three pronouncements is that the couple are free to remarry in case of the latter but not in case of the former.
The triple instantaneous Talaq is – or was – essentially Talaq of the three times but said at one sitting instead of over three months. So essentially the only difference was that the husband denied himself the right to take it back or indeed to remarry the ex-wife after Iddat. For the woman there was no real difference so long as the husband’s obligation of the Iddat period was observed as they must.
Now the Supreme Court has declared triple Talaq to be void. That means, as has been thought from times immemorial, that triple Talaq pronouncement is treated as a single Talaq as such but the man would still have the Iddat period to either take it back or pronounce it again. There is no other difference.
However, the NDA government’s legislation revives triple Talaq to declare it void afresh. Either way, there is no legal consequence of pronouncing Talaq three times at once other than the effect of having said it once. In the circumstances, it makes no sense to impose criminal liability on something that has no legal consequences.
Even if as a policy decision it is felt that some deterrent is called for, it could have been done without resorting to criminal culpability. It is meaningless to compare this with other criminal acts, because in each such case there is a consequence whereas after the Supreme Court judgment there is no consequence of pronouncing Talaq three times at the same time.
We must be careful that there is no case against Talaq per se or the entire Islamic system of marriage and divorce, described by Justice Rohinton Nariman as “astonishingly modern”. The learned judge clearly had in mind that contrary to the widely believed fact, Islam provides for a woman’s right to seek Talaq by delegation, Khula or dissolution of marriage, Fasq or annulment, Mubaraat or dissolution by mutual consent. Besides for the marriage itself the woman has a right to Mehar or consideration to give her consent. The Nikahnama (marriage contract) is integral to the wedding ceremony and is signed by witnesses in addition to the parties.
As a matter of good public policy, criminal law must not intrude into personal lives of citizens unless there is a pressing ground for it such as physical violence. Many grounds of cruelty within a marriage are sufficient for divorce but certainly do not qualify for criminal prosecution. There is good reason for that because no civilised society approves of watchdogs in the family home.
It is sad that some people point to what other countries do as though we have to permanently remain followers rather than show the way to an enlightened legal system. With triple Talaq gone it is a waste of time to decry people for being sympathetic to triple Talaq or seek punishment for those who foolishly utter it despite its ineffectiveness.
Shorn of the noise and harangue the issue is not really about the empowerment of women, because in that case the government should have been looking at enhancing the benefit and protection granted by the Muslim Women (Protection of Rights on Divorce) Act 1986 and other protective legislation. Ironically the present legislation is titled the Muslim Women (Protection of Rights on Marriage) Bill 2017.
The real intent is clearly to chip away at personal laws to bring in the uniform civil code. If that be so let there be at least an honest debate, and let the right view prevail.