“In spite of the Supreme Court setting aside talaq-e-biddat, and the assurance of AIMPLB, there have been reports of divorce by way of talaq-e-biddat from different parts of the country….. It is, therefore, felt that there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce”, Union Law Minister Ravi Shankar Prasad asserts in a “Statement of Objects and Reasons” of The Muslim Women (Protection of Rights on Marriage) Bill 2017.
Union Law Minister justifying the need of legislation states, “in order to prevent the continued harassment being meted out to the hapless married Muslim women due to talaq-e-biddat, urgent suitable legislation is necessary to give some relief to them.” The bill makes instant triple talaq a cognizable offence (arrest can be made without warrant by police).
The criminalisation of behaviour or practices stemming from or associated with religious conventions is not without precedent. The Dowry Prohibition Act, 1961, and the Commission of Sati (Prevention) Act, 1988, are two instances of penal laws designed to combat abhorrent behaviour by Hindu men and their families.
Implications of triple talaq being cognizable offence
When an offence is non-cognizable, it is left to the individuals to make a complaint before a magistrate if aggrieved by the offence. Now it is up to the court to direct the police as to whether they should investigate the matter.
Section 376B of the Indian Penal Code, which makes the heinous act of a husband raping his wife while they are separated, a cognizable offence that can be prosecuted only if the wife or her relatives lodge a complaint. It can’t be a cognizable offence if wife has no desire to see errant husband punished.
As a matter of public policy, offences relating to marriage, as long as they do not result in any physical harm to the wife, are made non-cognizable and subject to judicial oversight to prevent third parties from seeking redressal of wrongs committed between two parties.
The proposed triple talaq bill, however, directly gives power to police officers to conduct an investigation without bringing it to the notice of the magistrate.
If the triple talaq bill in its current form is passed, a Muslim husband will be prosecuted without his wife’s consent for pronouncing triple talaq, whereas a Hindu man who rapes his wife while they are separated will not be prosecuted unless his estranged wife agrees. The government introducing a bill that seeks to criminalise the act is hasty, ill-conceived and cruel.
Bebaak Collective, a women’s rights group that played a pivotal role in the Shayara Bano case, has warned that “the move to imprison Muslim men will add to the prevailing insecurity and alienation of the Muslim community”.
Role of All India Muslim Personal Law Board
All India Muslim Personal Law Board (AIMPLB) on Sunday urged the Central government to withhold and withdraw its Bill to outlaw instant triple talaq stating “The board is of the view that the triple talaq bill is against the Constitution, rights of women and Shariah (Islamic law). Apart from this, it is also an attempt to interfere with the Muslim personal law. If this bill becomes a law, then women will face a host of difficulties.”
AIMPLB, being a self-proclaimed representative body of Indian Muslims should have come up with their own version of draft bill instead of just condemning or requesting central government to withdraw it but as usual, they failed to give a concrete solution.
Indian Muslims were looking at AIMPLB for guidance after the triple talaq SC verdict but board members failed to reach any common ground about the next course of action. It was all fine in the board except the Babri Masjid issue till central govt. brought the proposed bill and again the same rushed meetings with hollow actions.
The actual problem with AIMPLB is, though it claims itself as representative body of all Muslim sects in the country but in reality reduced itself to a particular sect within the community. Still, in their statements they emphasize more on quashing of instant triple talaq against Sharia but they failed to understand that the whole argument in SC was to examine if instant triple talaq is part of sharia. Wherein, majority view of judges held it against the teachings of the Quran and, therefore, violation of Muslim personal law.
At one hand, AIMPLB terms the Bill against sharia and on the other hand, complaints about not being consulted before the lawmaking. Although, it’s agreed that government should consult AIMPLB and other women organisations being stakeholders in the process of lawmaking.
It’s high time for AIMPLB to come out from shade of a particular sect and start representing the whole community without any bias or else the time will come when it will lose relevance with the Indian Muslims.