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ORDINANCE ON TRIPLE TALAQ

The Union Cabinet has cleared an ordinance that makes talaq-e-biddat, or instant triple talaq, a criminal offence. Triple Talaq Ordinance: The triple talaq law, officially called Muslim Women (Protection of Rights on Marriage) Bill 2017

ORDINANCE ON TRIPLE TALAQ

Instant triple talaq will now attract a maximum jail term of three years.
The new law has some safeguards, including bail to the accused before the start of trial.
So, instant triple talaq will continue to be a “nonbailable” offence i.e. the police cannot grant bail at the police station. • However, the accused can approach a magistrate for bail even before trial.

CONDITIONS OF RECOGNISING THE OFFENCE AS NON-BAILABLE

The Bill makes a declaration of Triple Talaq a cognizable and nonbailable offense. (A cognizable offense is one where a police officer may arrest a person without a warrant.) Under the Bill, the offense will be cognizable only if information relating to the offense is given by:

The married woman (against whom Triple Talaq has been declared)
Any person related to her by blood or marriage.

SHOULD IT BE A CRIMINAL LAW

The purpose of criminal law is to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests.
In striking down Section 377 of the IPC this month, the Supreme Court approved the “harm” theory, saying consensual sexual relations do not harm anybody and therefore, homosexuality cannot be criminalised.

WHY AN ORDINANCE NOW?

The Supreme Court, last year, gave a landmark verdict that made triple talaq unconstitutional.
But despite this, the practice of triple talaq continued unabated across the country.
Nearly 200 cases had been reported after the Supreme Court banned triple talaq in August 2017.

NOTES

The Magistrate may grant bail to the accused after hearing the woman (against whom Triple Talaq has been pronounced), and if he is satisfied that there are reasonable grounds for granting bail.
The offense may be compounded by the Magistrate upon the request of the woman (against whom Triple Talaq has been declared).
Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute. The terms and conditions of the compounding will be as determined by the Magistrate.

UNDERSTANDING THE CONCEPT

Talaq or divorce is classified on the basis of pronouncement as follows:

Talaq-ul-Sunnat, which is revocable
Talaq-ul-Biddat, which is irrevocable
Talaq Ahsan (most proper)
Talaq Hasan (proper) Talaq-ul-Biddat is regarded as the disapproved form of talaq and this form is in contrast to the ideology of the Prophet. In this form, husbands could break the relation merely by pronouncing talaq three times. Also, it is a unilateral divorce and is against the gender jurisprudence. Sharia law does not recognize talaq-ul-Biddat. The practice is followed only in the Sunni community of Hanafi School and Hanafi Sunnis, which comprise of around 90 percent of the Muslim population in the country.

TOUGH RAJYA SABHA TEST

At the business advisory committee meeting in the last Parliament session, even pro-government JDU and AIADMK, apart from Congress, SP, BSP, Left parties and Trinamool, demanded that the government refer the bill to the select committee.

ISSUES WITH THE LAW

Nevertheless, the core issue remains – whether a marital wrong, essentially a civil matter, should lead to prosecutions and jail terms. •Also, it is self-contradictory for a law to both allow a marriage to continue (as tripe talaq is invalid) and propose a jail term for the offending husband.