The introduction of the Muslim Women (Protection of Rights on Marriage) Bill, 2017 (and its subsequent passage in the Lok Sabha) is a necessary and logical consequence of the judgement of a five-judge Constitution Bench in the triple talaq case (Shayara Bano v. Union of India & Others). The Supreme Court, by majority, set aside the practice of talaq-e-biddat, that is instantaneous triple talaq. While there was a divergence of opinion on some aspects, three of the five judges took the view that such instantaneous talaq was unconstitutional and that it was not open to a Muslim husband to capriciously and whimsically break the marital tie without any attempt at reconciliation.

However, even as the practice of talaq-e-biddat was held to be unconstitutional, the question of punishment and the consequence of such an action remain undetermined. In fact, there were even reports of divorce by way of talaq-e-biddat from different parts of the country and there seemed to be no deterrent effect to bringing down the number of divorces by this method. It also appears that some clerics found a way of circumventing the judgement by advising recourse to talaq-e-bain, which also dissolves the marriage instantaneously.

The 2017 bill essentially prohibits instantaneous and irrevocable divorce pronounced by a Muslim husband, namely talaq-e-biddat or any other similar form of divorce and declares such talaq as void and illegal, apart from imposition of punishment by imprisonment of up to three years and fine. The bill also addresses the protection of certain other rights of married Muslim women on whom instantaneous talaq is pronounced, such as receiving subsistence allowance for herself and her dependent children, and custody of minor children.

Despite the efforts of Dr B.R. Ambedkar, who strongly advocated the adoption of a Uniform Civil Code, the Constitution only contained (in Article 44) a provision that the State shall endeavour to secure a Uniform Civil Code throughout the territory of India.

In the Constituent Assembly, Dr Ambedkar stated the following in reference to issues relating to marriage, divorce and succession: “After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is full of inequality, discrimination and other things, which conflict with our fundamental rights.”

Regrettably, this cherished dream has yet to reach fruition, notwithstanding the Supreme Court having recommended, more than once, the taking of steps to make a Uniform Civil Code. The matter is currently under consideration of the Law Commission.

However, the sine qua non for uniform civil law is religious reform and most such reform has been assiduously opposed by religious leaders, who exercise sufficient political leverage to stall any change on the ground that freedom to profess, practice and propagate religion enjoys constitutional protection under Articles 25 and 26 and must not be interfered with.

A prime example is the Shah Bano case (Mohd. Ahmed Khan vs. Shah Bano Begum) where a Supreme Court judgement was nullified by legislation, after the then government had initially supported the same in the Lok Sabha. It would be recalled that in the said case, a divorced Muslim woman was held to be entitled to maintenance under Section 125 of the Criminal Procedure Code, regardless of the husband having paid “mehar” and maintenance during the period of iddat. Such payment of maintenance was held not to be in conflict with the Muslim Personal Law.

The judgement was, however, opposed by the orthodox sections; the government of the day enjoying a huge majority in Parliament, introduced and passed, post-haste, the Muslim Women (Protection of Rights on Divorce) Act, 1986 (which largely nullified the effect of the Supreme Court judgement) on the basis, curiously enough, that it was an Act to protect the rights of Muslim women. But the effect was exactly the opposite as it limited the period of maintenance within the iddat period and for children, born before and after divorce, for a period of two years from their birth.

Rather than immediately addressing the larger question of a Uniform Civil Code, the incumbent government would, in my view, be better advised to incrementally reform religious practices which fall foul of the essential Fundamental Rights. This would restrict the reach of the orthodoxy in trying to exercise disproportionate influence over the adherents of the faith and signify a move in the direction of the salutary constitutional goal of complete equality.

The 2017 bill is, thus, an appropriate step and is in sharp contra-distinction to the fallout of the Shah Bano case, since the State is now seeking to legislate in a matter of empowerment and equality—keeping in mind the Fundamental Rights granted under the Constitution—and is also seeking to ensure that the Supreme Court judgement is fully given effect to. It has been seen in the past that constitutionally protected rights also require legislation, with penal consequences, for their enforcement. For example: untouchability was abolished in the Constitution but needed the enactment of the Untouchability (Offences) Act, 1955 to ensure its implementation.

The opposition to the present bill, as voiced by the All India Muslim Personal Law Board (AIMPLB), is but an attempt to stall essential religious reform; despite assurances furnished in the Supreme Court, the requisite advisories have not been issued by them to deprecate the practice. On the contrary, new methods of instantaneous talaq are, apparently being devised, merely through change in nomenclature. Objections to the effect that the bill seeks to regulate other forms of talaq as well and that the punishment is excessive, are specious. The AIMPLB had even accepted in the Supreme Court that the practice of a talaq-e-biddat was sinful, lacked the approval of the Shariat and that it was only the State which could regulate it by legislation. Such a legislation has now been introduced and needs to be unequivocally supported in order to achieve the twin goals of gender justice and equality.

The bill addresses instantaneous talaq only (irrespective of nomenclature) and the punishment provided is both necessary commensurate and proportionate with the nature of the offence so as to act as a credible deterrent.

Religious reform is expressly permitted in the Constitution by way of State action; it is no less a function of the State to ensure that religious practices that are discriminatory and unequal are addressed through appropriate legislation.

Well over six decades after the Constitution came into force, it is obvious that self regulation and reform by the clergy have not worked. While a Uniform Civil Code still seems a distant vision, enactments like the Hindu Code Bills, 1955-56 and the amendment, in 2005, to the Hindu Succession Act have been noteworthy landmarks.

At the present juncture, unless the State takes upon itself and assumes the mantle of religious reform to bring about gender justice, equality and protection, the fulfilment of Fundamental Rights guaranteed in Part III of the Constitution would not be completed. It is, therefore, to be hoped that the government would consider further reformative legislation after the 2017 bill is duly enacted.

Siddharth Bhatnagar, a lawyer in the Supreme Court, has appeared in matters relating to minority rights.

 

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