When the Supreme Court passed its judgment in ShayaraBano v. Union of India, it was mostly celebrated as a harbinger of a new dawn for Muslim women.
For years now, the concept of instant triple Talaq has harassed the lives of innumerable Muslim women, who almost always brought the gravity of the problem to the forefront by the media.
Over the years, this had led to the development of a strong sense of sympathy in the minds of the non-Islamic population of India towards the suffering of these women.
Even divorce lawyers in Coimbatore-like cities, where the pre-dominant does not population belong to the religion of Islam, have expressed their opinions on the implications of the Triple Talaq judgment, in the first place, and then the bill.
This blog seeks to analyze the journey of the law, from being passed as a landmark judgment by the Supreme Court to an ordinance and the struggles it faced as a prospective law (bill).
In its judgment of ShayaraBano v. Union of India, the Supreme Court banned the practice of Triple Talaq or instant Talaq, a form of divorce recognized under the Muslim personal law for marriage and divorce, in which the husband could divorce his wife at will by uttering the word, ‘Talaq’ three times, in a single setting.
The marriage would then immediately cease to exist from then, and the wife would have to be bound by the divorce, with no say of hers in the matter whatsoever.
While there was enough criticism already that existed in the writings of scholars against this practice of triple talaq, and there have been volumes written on the level of suffering women had to go through a post this ordeal. People belonging to both the Islam and non-Islamic religions heavily criticized the practice.
The only segment of the population that might have supported the practice were the husbands, who were guilty of having divorced their wives in this way, or those who intended to do so in the future.
However, considering it to be a matter of religion, neither the judiciary nor the legislature, touched upon the issue in their respective discourses, as freedom of religion is guaranteed by the Constitution of India, 1950, as a fundamental right.
The Apex Court was the first to do, in its judgment. The immediate reaction of most of the population to the judgment was that of delight and appreciation, with only a minor segment opposing the step as an over-arching action by the judiciary, going beyond its legal boundaries of jurisdiction.
The problems only came to arise with the introduction of the Triple Talaq Bill. Because of the lack of sufficient votes, the current government had to pass it in ordinances twice.
The Bill contained specific provisions that invited strong opposition from even the women folklore of the Islamic religion. Some of these provisions and the opposition they invited are briefly described below:
It contained a provision giving punishment of three years to the husband found guilty. Many have opined that the in effect, divorce by way of triple talaq has the effect of abandoning the woman.
There are civil laws that deal with the wife’s abandonment by the husband and contain heavy liability. Criminalizing the same by providing a mandatory term of imprisonment only results in an ardent failure of justice since it results in two laws being there for a single act.
Moreover, matters related to matrimonial ties are inherently civil, and imposing a criminal penalty on the guilty will defy the principle of proportionality. That is, the punishment must be proportional to the wrong committed.
Under Bill’s first draft, a complaint could be made by any person whatsoever. Also, since the offense was cognizable and non-bailable, an arrest could be made merely by a complaint being made by a person out of sheer spite or vengefulness.
However, this provision has been modified under the Bill as it now stands. Now, only the aggrieved wife or a sane adult related to her by blood or marriage can complain.
The offense has also been made bailable, however, at the request of the wife. There are many suggestions to reduce imprisonment from three years to about a year.
The main objective of the ruling was to come to the aid of the women. However, it has the effect of further increasing their distress because if the husband is behind bars, the wife will only be left estranged with no source of income for maintenance for either herself or her children.
Many people have opined that the Supreme Court ruling is enough to deal with the grievances of victim women. However, there is no need for the law as the Bill is too harsh on the accused.
Even in the February session (the budget session) of the Parliament, the Bill failed to be passed.
The Bill is not becoming law under the BJP government as by the time the next session of the Parliament is held, and the central elections would have already been completed with their results.
As of now, even though it has garnered the requisite amount of support from the LokSabha, it needs to be seen whether the next government (the one that will be elected in 2019) will be able to gather enough support in the RajyaSabha to make the Bill a law.
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