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Updated: Sep 19, 2018 23:52 IST

The Cabinet on Wednesday approved an ordinance to criminalise instant triple talaq, the Muslim practice of immediate divorce, a move which follows the government’s efforts to pass a bill to that effect in Parliament’s last session.

The proposed ordinance — which takes effect as soon as the President approves it — will make instant, arbitrary divorce by a Muslim man a crime, but has provisions for reconciliation and bail.

An ordinance, under Article 123 of the Constitution, allows a government to bring a law on urgent matters when Parliament is not in session. The ordinance, however, has to be brought before Parliament and passed by it within six weeks of a forthcoming session. Parliament convenes again for its winter session later this year.

“There was a compelling necessity to bring the ordinance. Triple talaq is taking place across the country. We have information on 430 instances between January 2017 and September 2018, despite the Supreme Court having annulled it,” Union law minister Ravi Shankar Prasad said.

Prasad said the new law had three core provisions. One, the offence would become cognisable — which allows the police to make an arrest without a warrant — only when the “victim wife” or her “blood relatives” or “relations through marriage” lodge a complaint.

Unrelated individuals will not be able to bring a case before the police.

Watch: Hyderabadi woman gets Talaq over WhatsApp from Omani husband

Second, the offence will be compoundable, meaning a compromise can be reached at the instance of the wife.

Third, a magistrate can grant bail only after hearing the wife. The punishment for the crime is up to three years in jail.

To ban instant triple talaq, the Modi government had brought the Muslim Women (Protection of Rights on Marriage) Bill, 2017, in the Lok Sabha on December 28, 2017, where it had been passed by a voice vote.

However, the government did not table it in the Rajya Sabha due to a lack of consensus over some of the law’s provisions. The bill sought to ban “talaq-e-biddat”, a Muslim practice that allows a husband to utter the word “talaq” (Urdu for divorce) three times in a row for an irrevocable, instant divorce.

The Cabinet in August 2018 had approved three amendments to the triple talaq bill. The latest ordinance is pretty much in line with those changes.

The first amendment was a provision of bail by a magistrate. “The provision has been added to allow the magistrate to grant bail after hearing the wife,” Prasad said at the time.

Another provision was that the police would act only if approached by the victim (wife), her blood relations or people who become her relatives by virtue of marriage. The third amendment had sought to make the offence of instant triple talaq “compoundable”. In August 2017, the Supreme Court had, by a 3:2 majority decision, ruled instant triple talaq “unconstitutional”, “arbitrary” and “not part of Islam”.

As part of the minority verdict, the then Chief Justice JS Khehar and Justice S Abdul Nazeer, in a dissenting note, had stated instant triple talaq should be suspended and the government should bring a law to regulate the practice within six months.

Prasad said the Congress was resisting the bill in the Rajya Sabha because of “vote bank” politics. “Sonia Gandhi ji has maintained silence on the issue. The triple talaq matter has nothing to do with faith, mode of worship or politics but gender justice and dignity,” he said.

The Congress’s chief spokesperson, Randeep Surjewala, said the government had not accepted the party’s suggestions to make a provision for attaching the property of those not providing compensation to affected women and children after giving them divorce. “For us, triple talaq has always been a human issue related to women’s rights and extending justice to them. However, the Modi government is treating the issue more as a political football than a matter of justice to Muslim women,” Surjewala said. The All India Muslim Personal Law Board continued to oppose the government’s stand on instant triple talaq.