- The Union Cabinet has cleared an ordinance that makes talaq-e-biddat, commonly known as instant triple talaq, a criminal offence. The President has given his assent to the ordinance.
2.Marriage is considered a civil contract under Islamic law.
- Islamic law prescribes Triple Talaq as the means to end marriage. Instant Triple Talaq is a distorted form of Triple Talaq which is not mentioned in the Quran.
- There were 430 incidents of instant triple talaq from January 2017 to 13 September 2018. Of these, 201 were after the Supreme Court judgment of 2017.
- The Supreme Court in August, 2017 declared the practice of instant triple talaq unconstitutional and wanted Parliament to bring in legislation governing Muslim marriages and divorce.
- The government introduced The Muslim Women (Protection of Rights on Marriage) Bill to give statutory form to the Supreme Court verdict.
- The Bill sought to criminalize instant triple talaq and make it a punishable offence.
- The Bill was passed in Lok Sabha but is pending in the Upper House as opposition parties wanted it to be sent to a select committee for further discussion.
Provisions of the ordinance
- The ordinance has incorporated certain safeguards which were not present in the original Bill, to allay fears among Muslim.
- Instant Triple Talaq has been made a cognizable offence with a maximum of three years imprisonment and a fine.
- The offence has been made non-bailable. Under a non-bailable law, bail cannot be granted by police at the police station itself. The accused has to approach the magistrate for bail.
- However under this law the accused can approach a magistrate even before trial to seek bail. The move was taken to allay fears among Muslim men.
- Police can lodge a First information Report (FIR) only if the complaint is filed by the wife (victim), her blood relations or her relatives by virtue of her marriage.
- Non-relatives or neighbors cannot lodge a complaint under the proposed law.
- The ordinance makes the offence of instant triple talaq “compoundable” which means that the magistrate can use his powers to settle the dispute between a husband and his wife.
- When categorized as a compoundable case, both parties are allowed to withdraw the case.
- A compromise can be achieved only when the woman is willing and says so to a magistrate. A magistrate can grant bail only after the wife’s consent.
- The magistrate will have the power to decide the quantum of compensation and subsistence allowance for the victim and her minor children.
- The custody of children from the marriage will go to the woman.
- The law doesn’t affect Jammu and Kashmir.
Criticism of the Ordinance
- The move would create problems for Muslim women as the ordinance does not provide clarity on issues like property rights.
- There is also no clarity on who will pay for the maintenance of the wife once the husband is in jail.
- Why taking the ordinance route to enact a law on Triple Talaq is wrong.
- This is a matter that required deliberation since serious objections were raised to some provisions of the Bill passed by the Lok Sabha.
- There is also an ongoing debate on the desirability of criminalizing instant triple talaq.
- There was no such exigency for which government needed to take recourse to the extraordinary power of promulgating an ordinance.
- Mere lack of consensus in the House is not a good enough reason to promulgate an ordinance. It could even amount to subversion of the parliamentary process. The Bill should have been passed through the normal route.