Beyond the talaq: on the Muslim divorce bill

India needs non-sectarian, gender-neutral law that addresses spousal desertion

Both houses of parliament have passed a bill making instant triple talaq a criminal offense, amid lingering doubts as to whether it should be treated as a felony or just a civil matter. It is true that the Muslim Women (Protection of Marriage Rights) Bill 2019 is a watered-down version of the bill as it was originally conceived. Previously, he had not specified who could enforce the law. Now, the offense is only knowable if the affected wife, or someone related to her by blood or marriage, files a complaint with the police. A man arrested under this law can get bail after the magistrate has granted the wife a hearing. Third, the offense is aggravating, that is, the parties can reach a compromise. The government says its main goal is to give effect to the 2017 Supreme Court verdict declaring instant triple talaq illegal. He claims that despite the court ruling, several cases have been reported. Making it an offense, the government says, will deter further use of triple talaq and provide redress to women in the form of a living allowance and childcare, in addition to arresting the lost husband. However, the central question regarding the need to criminalize the practice of talaq-e-biddat did not receive a convincing response.

In light of the Supreme Court ruling on its validity, there is really no need to declare instant triple talaq a criminal offense. The practice has no endorsement in Islamic principles and is indeed considered abhorrent. Second, once declared illegal, pronouncing talaq obviously does not have the effect of “instant and irrevocable divorce” as this bill claims in its definition of “talaq”. Provisions which allow a woman to claim a subsistence allowance from the man and to claim custody of her children can be implemented in the event of abandonment by the husband, even without the arrest of the man. Whether the triple talaq in any form is void, how the issues of child custody and living allowance arise while the marriage continues is unclear. And then there is the practical question of how a man can provide a living allowance while he is imprisoned. Supporters of the bill have argued that dowry-related harassment and cruelty to wives are treated as criminal offenses even during the duration of the marriage. This is a patently flawed comparison, as these acts involve violence and cruelty and are rightly treated as criminal offenses. The same cannot be said of a man who invokes a prohibited form of divorce. The BJP projects the passage of the bill as a historic step in the quest for gender justice. Such a claim will only be valid if there is a non-sectarian law that treats abandonment and desertion of spouses as a common problem instead of focusing on a practice, which is no longer legally valid, among Muslims.

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