The Centre has proposed a tough law against “instant triple talaq”, which could be non-bailable offence. The punishment will include a three-year jail for the husband and a fine. The Government has decided to enact the law after the Supreme Court order striking down the practice triple talaq as “illegal” did not act as a deterrent. There have been 177 reported cases of instant triple talaq before the judgment and 66 after the order this year.
The Draft “Muslim Women Protection of Rights on Marriage Bill” was sent to the State Governments on Friday for their views. The draft was prepared by an inter-ministerial group headed by Home Minister Rajnath Singh.
The other members included External Affairs Minister Sushma Swaraj, Finance Minister Arun Jaitley, law Minister Ravi Shankar Prasad and Minister of State for law PP Chaudhary. The Government intends to place the Bill in the forthcoming Winter Session itself, said a senior official.
The proposed law would only be applicable on instant triple talaq or ‘talaq-e-biddat’ and it would give power to the victim to approach a magistrate seeking “subsistence allowance” for her and minor children. The woman can also seek the custody of her minor children from the magistrate, who will take a final call on the issue. Under the draft law, triple talaq in any form — spoken, in writing or by electronic means such as email, SMS and WhatsApp — would be illegal.
“The provision of subsistence allowance and custody has been made to ensure that in case the husband asks the wife to leave the house, she should have legal protection,” an official said.
According to the draft law, which would be applicable to the entire country except Jammu & Kashmir, giving instant triple talaq would attract a jail term of three years and a fine. It would be a non-bailable, cognisable offence. The J&K Government has to make a separate Bill on this regard, explained senior officials.
He said the provisions of the Domestic Violence Act were found to be of little help in the instant triple talaq cases and the Government and the Prime Minister’s Office were receiving complaints from women. The subjects of divorce and marriage come under the concurrent list of the Constitution and Parliament is free to pass laws on it in emergencies. But going by the recommendations of the Sarkaria Commission, the Government decided to consult the States.
“The plan is to bring it in the Winter Session of Parliament,” the official said. As of now, the draft law is prospective in nature. But if Parliament feels, it can be implemented retrospectively once it is passed and gets the President’s nod, he said. Women who have been given instant triple talaq before the proposed law comes into force can also seek custody of minor children and subsistence allowance using its provisions, another official said.
Once the views of the States are received, the law Ministry would move Cabinet with the proposal. As the law stands today, a victim of “talaq-e-biddat” have no option but to approach the police for redressal of her grievance as Muslim clergies are of no assistance to her. Even police are helpless as no action can be taken against the husband in the absence of punitive provisions in the law, they explained.
In August, the Supreme Court had struck down the controversial Islamic practice of instant divorce as arbitrary and unconstitutional. But there have been reports of a number of divorces by way of “talaq-e-biddat” even after the judgment, the officials said.
Despite advisories being issued to the members of the community against the archaic practice, there seemed to be no decline in the cases of divorce by “talaq-e-biddat”, they claimed. In a recent case of instant triple talaq, a professor working with the Aligarh Muslim University divorced his wife through WhatsApp and SMS. However, the local police found difficulties in invoking penal provision against the husband due to lack of provisions in the IPC.