A detailed word on word analysis of the proposed Bill-Part 4
Let us now talk about the most pressing topics related to our discussion and analysis of the Triple Talaq Bill. Time for a few facts now. [.]
For the Muslims, the writings in the Quran are of foremost importance. Muslims in India are governed by The Muslim Personal Law (Shariat) Application Act, 1937. Since then, the Shariat Application Act mandates aspects of Muslim social life such as marriage, divorce, inheritance and family relations. The Act lays out that in matters of personal dispute the State shall not interfere. This is where the problem cum conflict seems to have actually arisen.
The implication is that even the Supreme Court or the ruling Government cannot interfere in any disputes arising thereof in matters related to the Muslim Personal Law. This is not confined to only Muslims in India as such legislation has been made over the years for other religious groups in India as well. Separate civil codes have been for different religions in the country.
For example, the Hindu Succession Act of 1956 which lays out guidelines for property inheritance among Hindus, Buddhists, Jains, and Sikhs. Even The Parsi Marriage and Divorce Act of 1936 which lays out rules to be followed by the Parsis according to their religious traditions.
So, it’s the freedom to practice religion is a fundamental right in a democratic and secular country like India. Accepted. It’s our right.
The All India Muslim Personal Law Board (AIMPLB), a non-government organization constituted in 1973 has worked continuously and proposed suitable strategies for the protection and continued applicability of Muslim Personal Law . [.] in India.
Muslim marriage is a civil contract between a man and a woman according to Islam. We have already discussed the various forms of divorce permitted in Islam and about the word “Triple Talaq” and its concept finding no mention and status in the Holy Quran in detail. Let us now take a look at the current situation in India related to this issue and what will happen if it is made a law in India.
On 22 August 2017, the Supreme Court of India deemed instant triple talaq unconstitutional and ordered it to be ”Set Aside” [.] from the Shariah Laws.
Let us read the final verdict and order of the court in the courtroom itself, this is what Chief Justice Khehar said.
“by a majority of 3:2, talaq-e-biddat is set aside.” Deeming it a “manifestly arbitrary” practice, which is not protected by
Article 25 (freedom of religion) of the Constitution.
Triple Talaq given at one time is a sin according to the Shariah but it is still being practiced (this was the Judge’s argument). Now, further, during the discussion Justice Kurian held that instant talaq was against the tenets of Quran.
“What is banned in Quran cannot be good in Shariat. What is banned in theology cannot be good in law,” he observed.
1) Now, comes the logical part which has to be observed through common sense. On one side, you are accepting that “Triple Talaq” is against the tenets of the Holy Quran and deeming it banned in the scripture. On the other hand, you are proclaiming its use as a legal form of divorce which should be done away with. It is an innovation, it is haraam, it is not accepted in Islam, it does not cause a divorce. Full stop.
Now, we come to the retrospection part of where, how and when this ambiguity arose and why has it become so important for words to be translated correctly by those of deep knowledge of the religion.
We may subtly blame inefficient and half-hearted attempts by scholars in translation, meditating and understanding the true essence of Islamic Law and its peaceful teachings. The perfect competitors for achieving such excellency would be those experts who have dipped their hands full in Islamic studies, comparative religion, law and proficiency in language translation and previous historical significance of translation. [.].
Or else, it can easily become the case of “Bad in religion, Good in Law”. If there is something which has been declared as a sin in your religion then how can it be good in law, at the least?
With due respect to the eminent non-Muslim scholars who have published and worked wholeheartedly on translating books of Islam, the above problem can easily arise. Etymology allows us to look into the history of words and their origins to get a fuller and purer understanding of a word and Arabic has a very special importance related to etymology. [.]
The Arabic language has a very special three letter word system, with deep visual and descriptive meanings for each and every letter. Three root letters of a single word can be further broken apart for further understanding of how even that 3 letter word was made. For example, the first letter of Arabic, “Alif” has the meanings,
- Manifests itself
So, to understand each and every word requires a high level of exposure to the Arabic language, especially the grammar. It can easily become ambiguous and twist the complete meaning of a word if it is not understood in its right context. Hence, all this confusion related to the controversial word, ”Triple Talaq”.
Let us now embark on a more logical explanation of this concept with a very apt example for our understanding. “To kill someone is a heinous crime which is totally prohibited”. Agreed. This is the perfect example of being “Bad in religion”. The victim will definitely be killed. He cannot argue that since it is such a big crime I will not die. He or she will surely die at that point in time as the damage has been done.
Same is the case with “Triple Talaq” as it is prohibited in Islam but it will surely have on its part damaged the marriage, family, children and even the sacred Islamic Law. Moreover, it now becomes the case of “Bad in religion but still effective “.
If the judgment was passed by a judge who was just “Good in law” then it would have been surely doubted for its intention but if it was the case of a judgment by one “Good in religion” then there would have been no problem of interpretation of its real meaning.
Coming back to the Bill, the reason cited by the lawmakers for its urgency was that the divorce rates had decreased even after the Supreme Court’s ruling (of making this pronouncement three times count as one and a stronger law was needed to curb this growing practice.
Now, let us go to the line by line and word by word analysis of the proposed Bill and try to really analyse what it means in legal terms and its implications.
Bill No. 247 of 2017
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017
Some points to be analysed in this statement,
- First comes the irony that there is no mention of “Triple Talaq” word here.
- Moreover, it has been noted that the whole term, “MARRIAGE” has been included in the Bill statement.
- This is the first shortcoming in the statement itself which has been observed by those analysing it regarding the real intention behind its usage.
- It gives scope for future interference in all matters of Muslim marriages to the ruling Government. For example, making changes in the number of legal marriages for a start.
- It can become a precursor for the introduction of new sub-laws or make amendments in this law without the real need to introduce a new Law pertaining to Muslim marriages. A legally clever form of disguise I would say …
A BILL to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.
- It has been named and introduced for “married Muslim women “only and not for the those who are unmarried, divorced, widowed, single, husbandless and spouseless. Who will now justify that it means justice for these categories of Muslim women in legal terms?
- The next phrase which is noteworthy is “to prohibit divorce” by pronouncing “talaq” by their husbands which again does not specify “Triple Talaq” specifically (which was supposedly the real motive for its introduction in the first place).
- Also, it means that husbands will now be not allowed to divorce their wives. This means that once they are married, they are really married for eternity no matter how abusive, torturous or fatal the relationship has become if the couple has crossed the point of reconciliation and cannot stand each other. Just try to imagine such a situation where there is no way out of it in a legal way.
Now, coming to Clause 2 of Chapter 1 of the Bill. In this Act, unless the context otherwise requires,—
(a) “electronic form” shall have the same meaning as assigned to it in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000;
(b) “talaq” means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband;
- Now, if the divorce is pronounced in any electronic form, be it by a message, Whatsapp, Skype, letter, mail or any other form covered in the specified sections of the IT Act, it will be covered under this law.
- Now, we come to the second point which states the word “talaq” as all forms of talaq including talaq e biddat. This is a very dangerous statement which covers all the Islamic forms of divorce, may they be revocable, irrevocable and even mutual.
- To understand the similar forms of talaq being referred to here, let us see their different forms too. [ https://www.familylaw.co.uk/news_and_comment/the-different-methods-of-islamic-separation-part-2-the-different-types-of-talaq#.Wlxhi5P1W9Y]
i) Talaq-e-Raj’i is a Revocable Divorce
ii)Talaq-e-Ba’in is an Irrevocable Divorce
iii)Talaq-e-Mughallazah is an Irrevocable Divorce
Talaq-e –Mughallazah is the most controversial and also the most misunderstood method of Talaq. Talaq-e-Mughallazah also was known as giving triple Talaq. (The specific form of Talaq we are actually talking about in the Bill). That has also arisen due to the differing opinions in the four main schools of thought (Madhab) in Islamic jurisprudence and which has become a point of debate but not a point of conflict as the Quran is deemed to be the most superior when it comes to clarifying doubts /conflicts in Islam.
- So, is the Bill only talking about making Talaq- e-Biddat /Talaq-e-Mughallazah/Triple Talaq only. NO. It covers all the valid and justified revocable forms of divorce which have been provided for equality to the wife in taking the decision of divorce according to her will.
- Another consequence of the Bill will be that she may not be able to take a divorce through mutual consent (qula) no matter what happens. According to Islamic law, if she gets divorced once, she can reconcile and get back with her husband after cooling-off during the waiting (iddah) period without the need for a witness, remarriage, declaration in Court of any sort. If her husband says, “I take back my words. I don’t divorce you” or any similar statement then its enough to nullify the divorce. If the woman takes talaq, then it means that she doesn’t want to live with her husband anymore and she can’t be forced to do so.
So, to protect her authority and provide her security (most probably in case she has a violent husband), she can use this form of divorce for freedom from his torture. (She can make it irrevocable by the way, the power rests with her). Again, if she wants to go back with him by marrying him again (let us suppose he has improved in behavior), they can remarry with mutual consent. Here again, the marriage (nikah) can be done only if both she and her husband are giving their consent on the marriage statement and he is willing to accept her with dignity. So, can anybody point out where she has been less empowered than her husband in the divorce process? But, sadly, she may be from now on. If the Bill is passed. Because she will lose her golden right of mutual consent too since it will also get included in “any other similar form of talaq” clause of the Bill. She may have nowhere to go and can even be tortured / mentally and physically harassed by her husband or even be handed over to the police under false accusations. Trying to imagine someone in this situation is horrifying.
CHAPTER II DECLARATION OF TALAQ TO BE VOID AND ILLEGAL. Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal. Whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine.
Again, no mention of “Triple Talaq” here for the talaq to be void and illegal. It will obviously include all the forms of talaq herein.
- So, it means the husband will have completely and totally lost his right to pronounce divorce of any form whatsoever. Right?
- The punishment term of three years with a fine will be given to every Muslim man pronouncing the word “talaq” and not “triple talaq”.
- So, it means that even in the state of anger, insanity, argument or by mistake if he is reported to have said these words three times, then its straight to jail?
- This ambiguous and clever statement also leaves scope for future judgments to make illegal all cases of permissible Talaq is Islam. Will they be “married forever” and have to bear with each other till “death does them part”? Will this in a real situation grant the Muslim woman her right to freedom, equality or grant her respite if she can’t handle the marriage anymore?
- The illogical part is concerning the pronouncement of a jail term of three years even after talaq has been proclaimed to have not occurred between them. If they are not divorced and legally still married, how he can still be sent to jail? (also considering the case of an innocent husband). As if Section 498a was not enough.
- In cases where he is innocent and has not had the intention of saying so will also be included in this statement for a 3-year imprisonment.
Now, we will do an analysis of the jail terms and punishments for different offenses and crimes in India.[.]
i)Theft: The punishment for theft is up to three years’ imprisonment, a fine, or both.
ii)Manslaughter: Causing death by negligence is punishable by imprisonment of up to two years, a fine, or both.
iii)Sedition: Imprisonment for 3 years and fine or fine.
iv) Framing Public Servants using fake documents: Imprisonment for 3 years and fine.
v) Causing hurt: Imprisonment for 1 years with fine
I have listed only a few of them but more can be researched later for their punishment terms under the Indian Penal Code.
- Is pronouncing “Triple Talaq “(and “Talaq”) a bigger crime than the above-mentioned crimes at least? Is it justified for a jail term of three years when our Constitution provides lesser terms for more serious crimes committed by the real criminals of our society?
- Will this really decrease the divorce rate if such a stringent law is passed? Rather, it will increase the cases and chances for more abuse and torture of women by infuriated and angry relatives of the husband.
CHAPTER III PROTECTION OF RIGHTS OF MARRIED MUSLIM WOMEN
- Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced, shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children as may be determined by the Magistrate.
- Notwithstanding anything contained in any other law for the time being in force, a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.
- Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the said Code.
- Now, coming to the part of Chapter 3 of the law dealing with subsistence allowance of the divorced woman (using “talaq”) and not only the “Triple Talaq” divorced woman.
- According to Section 125 of the Code of Criminal Procedure,1973 [http://indianlawwatch.com/practice/wife-under-section-125-criminal-procedure-code/], a divorced woman in India can claim subsistence which provides a relief of maintenance to her children and parents, provided they are unable to maintain themselves since 1973.
- According to The Protection of Women from Domestic Violence Act, 2005 [https://indiankanoon.org/doc/542601/] she is entitled to a right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act.
- So, even if she will be granted subsistence from these two powerful Acts already in place for her, she shall still be eligible for being granted “such amount of subsistence allowance for her and dependent children as may be determined by the Magistrate.” I mean What? Is there any logic in this allowing this if thought from a wider perspective?
- The next conclusion we can derive is even more illogical. The husband cannot pronounce talaq to his legal wife. It is illegal and void in terms of the Law. But, it also means that the two of them are still not divorced and considered married still. He has to still provide for her as a normal husband would. But, she is being also granted allowance as if she has been divorced from him. Will he be now providing for her as his wife and also as his divorcee?
So, it is an extremely illogical statement which casts the real marital status of the couple in a dubious light.
- Coming to the part dealing with the custody of the children. If they are still not divorced then where does the question of the custody come up in the first place? The couple is equally responsible for their upbringing if they are not divorced legally.
- Does this mean that the wife will be required to live separately from her husband and take care of them all alone, even if she is physically, emotionally and financially weak to handle all this stress?
- According to Islamic Law, if the child is a girl of a tender age, then it is recommended she stay with the mother.
If the child is a boy of a tender age, then it is usually recommended she stay with the father unless otherwise deemed necessary. In case a conflict arises, the children’s rights, the scope for better upbringing, age, and various other factors are kept in mind to decide who should be given the custody of the children and till when. There is no hard and fast rule that only one parent is responsible for taking care of the children [.]
- Coming to most dangerous part of the Bill. Yes, it is the point 7 of Chapter 3 which makes “an offense punishable under this Act shall be cognizable and non-bailable within the meaning of the said Code.”
- So, if a Muslim man, Mr. X pronounces utters “talaq” even once (not even three times!) then Mr. Y , a complete stranger from a completely different state can call up the police and get him arrested then and there with it being non-bailable and a cognizable claim. Even if Mrs. X pleads that her husband, Mr. X is completely innocent and has not uttered these cursed words, he will still be arrested. The policeman, Mr. Z will say, “Mrs. X, we are just following the Law. We are just doing our duty. Please come to the Court to prove your husband’s innocence”. I am amazed at what a situation it will become to be a “married Muslim man” with a dagger hanging overhead, ready to strike him by a single false complaint!
Practical Analysis and predicted consequences if the Bill sees the light of day- Part 5
I will do a quick analysis of the practical problems which can arise for the married Muslim couples residing in India.
- Criminalisation does no one good, especially in the matters of marriage with scant evidence of the pronouncement of the word in reality.
- An analysis done has deemed it to be inconsistent with the real vision behind the introduction of the Bill for preventing divorce through the innovated “Triple Talaq” procedure of divorce.
- It’s the apt example of a civil matter being made criminal and an interference in personal laws which have been put in place for granting justice in matters of religion in the Indian Constitution.
- It lacks the detailed provisions and definite clauses about their implementation and the correct procedure to be followed for delivering justice to the complainant.
- It does not seem to practically enhance but actually batter the whole institution of Muslim marriage by imprisoning the husband and granting custody of the children to the wife.
- Forces the husband to provide subsistence to his wife and children when he is behind the bars.
- Makes the Muslim woman more vulnerable to attacks from the frustrated relatives of her husband who would totally blame her for this situation even if she were innocent and had not complained in the first place.
- Claims to secure her future but in reality it puts financial, emotional and psychological burden on her shoulders through having to live in an ambiguous marital state of being a divorcee while not being actually divorced, upbringing of her children on her own, lowering chances support from her in-laws, making her (and her children) a target of physical assault and death threats in extreme cases.
- She cannot even seek a divorce and remarry legally or even stay single in India and it will conveniently raise many eyebrows on her character. (Very disturbing I would say)