analysis

Updated: Jun 24, 2019 20:29 IST

The main argument advanced in Lok Sabha against the proposed bill to make instant triple talaq a punishable offence was prefaced by the assertion that opposition to the introduction of the bill does not mean defence of the triple talaq. Instead, the bill was opposed because it seeks to conflate the civil and the criminal laws.

This statement betrays total ignorance about the history of how triple talaq, despite being bad in religion, became good in law. Even the Muslim Personal Law Board, in its affidavit submitted in Supreme Court (SC) in Shayara Bano case, has admitted that this form of divorce is a departure from the procedure sanctioned by the Quran and Prophetic traditions), an unjust, sinful and prohibited act. In fact, the Personal Law Board had agreed with almost all the religious and legal grounds on which the petitioners had argued that the practice of triple talaq deserves to be outlawed. The only point of difference was that the Personal Law Board had challenged the jurisdiction of the SC to intervene in this matter. But at the same time, the board had given an undertaking, through an additional affidavit, that the members themselves shall start a campaign against the practice of triple talaq, will suitably amend the model marriage contract and give a call to boycott those who resort to triple talaq. But later it became clear that all these assurances were meant to be tactical to persuade the court not to give its verdict and leave this matter wholly to this body of clerics.

It is important to remember that the Personal Law Board had initially welcomed the judgment of the SC but a few days later at its session at Bhopal the board made highly critical remarks and went to the extent of saying that notwithstanding the SC verdict, the practice of triple divorce shall continue as before.

The assertion made by Personal Law Board proved to be right. In a short period of three months, more than 100 cases of triple talaq were reported from all over the country. In all these cases the women were instantly thrown out of their marital homes and the board did not think it right to come to their rescue by explaining to the community that this form of divorce, which in any case is bad in religion, has also become bad in law. The board did not give any call for social boycott of these offenders.

Among these cases of triple talaq, one happened in my district on September 5, 2017. Despite my intervention and the best efforts by the local police officers, the man and his family refused to see reason and when pressed more they insisted on Halala (marriage with another man to be followed by divorce), which was flatly refused by the woman. The police officers were sympathetic but they were not sure as to the legal provision under which they could take action against the man. But a month later when instant triple talaq became a punishable offence, the man was not punished but reunion with his wife became possible.

The experience of last more than six months shows that since the promulgation of the ordinance, hardly any case of triple talaq has been reported from anywhere and, therefore, not a single case where anybody has complained of any harassment on account of this law.

As for conflating the civil and criminal law, there is no doubt that matters pertaining to marriage and divorce are laws of civil nature. But a casual glance at the history of Muslim law will show that triple talaq right from its inception has been treated as a criminal act. Caliph Umar, who recognised it as good in law, always flogged the offenders. This was the time when the jails were not in existence, so the punishment was forty lashes. But it is amusing to see this argument given by those who felt no hesitation to reverse the Shah Bano judgment that was given under a provision of Criminal Law to protect the Personal Law which admittedly is a civil law.

The purpose of the proposed law is not to do away with divorce; the purpose is to make people follow the prescribed procedure of law. According to the Quran, divorce becomes final on the completion of Iddat of three months preceded by counselling, sleeping separately, explaining by examples and mediation (Quran 4.34 and 35).

The question is for those who favour not triple talaq and yet oppose the proposed law to tell us how to ensure that the verdict of SC is respected by the likes of the Muslim Personal Law Board and its members do not incite their followers to continue with the practice of triple talaq, which violates both the law and religion and the dignity of women.

Arif Mohammad Khan is former Union minister

The views expressed are personal