NEW DELHI: The Centre’s bill to make instant triple talaq a criminal offence may have attracted criticism that marriage is a civil contract and breaches therein should not invite penal consequences, but the legislation appears in sync with the Supreme Court‘s August 22 ruling declaring instant oral talaq to be “manifestly arbitrary”.
Some political parties have said triple talaq is a religious issue and should be left to the community to decide while others maintained that a ban on it would hurt the fundamental rights of Muslims to manage their own affairs.
There are still others who believe the bill is flawed. If the bill is faulty, Parliament can cure the defects through debate. But to say that the legislation is antithetical to the rights provided for minorities under Article 25 is to argue that the five-judge Constitution bench had got its basics wrong in declaring triple talaq unconstitutional.
The SC had said: “Triple talaq is only a form of talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it… Triple talaq forms no part of Article 25 (which guarantees right to profess a religion of choice). Merely because the practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. After introduction of Shariat Act, 1937, no practice against the tenets of Quran is permissible. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.” So, the argument of political parties that triple talaq was a religious issue was rejected by the SC.
Triple talaq was held to be violative of Article 14, with the SC saying it was “manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it”.
The bid to punish those who may wish to take recourse to triple talaq even after the SC order has parallels too. To eradicate the evil of dowry, Parliament enacted the Dowry Prohibition Act in 1961 and later, went on to add Section 498A in the Indian Penal Code, which jails a husband and his relatives on a mere complaint from a woman about cruelty. Cruelty in a matrimonial home could be without physical assault, as the SC ruled in several cases making verbal abuse and mental torture part of cruelty.
Threatening to irrevocably nullify a marriage using triple talaq in an instant can be humiliating and demeaning to Muslim women and amounts to the worst form of cruelty in a marital home, fit enough to attract 498A. Since triple talaq has been declared unlawful, Muslim women can also complain under Section 498A against husbands if the bill fails to become law because of opposition by political parties.
To eradicate social evils, Parliament has taken steps from time to time and prescribed penal consequences. Untouchability was abolished by the Constitution when it came into force in 1950. Yet, the practice continued, forcing Parliament to enact the Untouchability (Offences) Act in 1955, renamed as Protection of Civil Rights Act in 1976. It punished those practising untouchability, directly or indirectly, with imprisonment of six months.
This tells us that even if the SC declared triple talaq unconstitutional, the practice will continue in the absence of penal consequences.