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Illogical punishment for triple talq

By Maulana Wali Rahmani

The Muslim Women (Protection of Rights on Marriage) Bill 2017 has finally been presented and passed from the Lok Sabha. It is related to giving instant triple talaq in a single sitting. On 22 August, the Supreme Court in a verdict ruled that if the husband gives instant triple talaq, it will be null and void and will not impact the marital status of the couple. In the eye of the legal language, it will be concluded that it was an ‘unwanted word’ that was uttered by a man. The impact of the uttering will not be more than an unwanted word.

In the eye of the Islamic shariah, the word ‘talaq’ creates fissures in the marital life of a couple and its usage thrice completely and permanently ends the relationship. The Supreme Court ruling on triple talaq has created a huge problem for the Muslim society. As per the apex court ruling, while one and two talaq are valid, but instant triple talaq is void. On the contrary, according to Islamic laws, the marital relationship instantly ends with triple (According to Hanafi Fiqh). They are no longer husband and wife and their living together is completely illegal afterwards.

The Muslim society will suffer badly due to this ruling as lawful and unlawful are very clear for Muslims. We accept the Supreme Court verdict, but if Muslim couple continues to live together after instant triple talaq, it will be completely illegal and haram in the eyes of Islam and Islamic shariah. While giving the verdict, the apex court didn’t pause to think as to how difficult the ruling will make it for the Muslim society.

Now the Muslim Women (Protection of Rights on Marriage) Bill 2017 makes the instant triple talaq a criminal act. Why the bill has been brought? While explaining it, the proponents of the bill said that it was necessitated due to the fact that despite Supreme Court ruling, people were still giving triple talaq to their wives. They said that at least 72 such cases were documented in a matter of weeks. The bill had become necessary as people were not following the apex court ruling and thus tough penal law had become necessary.

My first question is, when the instant triple talaq is void and doesn’t break the marriage, why there was the need to bring the bill with tough punitive measures. The man uttering triple talaq gets three year jail term and is still responsible to provide expense to his wife and children. If a woman goes to the court after a man utters triple talaq and the man is sent to the jail for three years, how he will be able to provide maintenance for woman and meet educational and other expenses of his children.

When the man comes out of the jail, according to Supreme Court ruling, the woman is still his wife (The present bill is mute on it). How the man is expected to cohabit with the woman who was behind his three year jail term? Will it be practically possible? The bill makes triple talaq a criminal act, while the marriage is a civil contract.
Making civil aspects criminal is simply against the spirit of the Constitution. In their 2006 ruling, Supreme Court judges HK Seema and R V Ravinderan had said that making civil matters criminal is wrong and this cannot be called sane. It is against the very spirit of justice.

When the apex court has made triple talaq null and void, then the issue of separation of husband and wife doesn’t arise. It is neither a curse nor a torturous word. If the union government believes it is a curse, then there is a law for it too. If a woman suffers emotional distress due to the fact that her husband uttered the word, there is Domestic Violence Act 2005. The affected woman is free to approach the court and the court has solution for the aggrieved woman. This is an issue of civil procedure and not criminal.

How it is appropriate that when the Supreme Court has made something null and void, all of a sudden a criminal law has been brought. The history of jurisprudence shows that emotional or physical torture is first kept under the purview of civil laws. It should also be seen through the eyes of legal testimony. Usually talaq is given when the couple has a fight. Usually only husband and wife are alone when they have a fight. Very rarely the fight is in front of other family members, neighbors or elders.

If the woman claims that she was given instant triple talaq in the court, how she will bring witnesses. Who from among the family members will like to send his close relative to jail? If there were only husband and wife present when the talaq was uttered, the issue of bringing witnesses becomes all the more complicated. Many people, who have witnessed family fights, know that there are many women who want to get rid of their husband due to multiple reasons. These women themselves demand that husband give them instant triple talaq. After some prodding, the husband gives his assents, sometimes with his own riders and sometimes without any rider to give triple talaq.

Now, after this bill is made into law, no husband will like to do it despite all persuasions of his wife. If someone thinks that man always gives divorce unilaterally is due to lack of understanding of social realities. The people who are aware of the functioning of the shariah courts, are well aware that on many occasions, men divorce their wives on their wives’ insistence. The bill that has been brought for ulterior political motives has been prepared by those people who are unaware of the Muslim society, its issues and problems. The people behind it never thought that when the punishment for deserting wife for followers of other religions is only one year jail term why Muslim man is punished with three year jail term. Isn’t it discriminatory against the Muslim community?

The policy makers should know that the last Census says there are 32 lakh women in the country who have been left by their husband. These women are living a miserable life. Their husbands are also culprits and there should be provision for punishing them too. This bill has numerous discrepancies and is against the objective of the Supreme Court. The government should reach out to the Muslim scholars and try to remove the lacunae from the bill. (Translated from Daily Inquilab)


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