The Muslim Women (Protection of Rights on Marriage) Ordinance 2018, more familiar as the Triple Talaq Ordinance, is the newest legislation to be challenged before the Supreme Court, unfortunately with the intent to achieve what is contrary to its actual intention. The Objective of the Ordinance is to protect the rights of married Muslim women and to prohibit divorce by the pronouncement of talaq thrice by their husbands.

Recently prior to the advent of this Bill, the Supreme Court had rightly, in the case of Shayara Bano vs. Union of India and Others [WP (Civil) No. 118 of 2016] held that the practice of instant triple talaq (talaq-e-biddat) as unconstitutional and a violation of the rights of the married women.

Currently, there are two petitions questioning the Ordinance pending before the Madras High Court and the Supreme Court respectively. It is important to note that a petition filed previously before the Mumbai High Court has already been dismissed on the ground that the Supreme Court had already seized of the matter.

The Ordinance introduced by the Government, invoking its powers under Article 123 (1) of the Constitution of India was apparently necessitated by the continuation of the practice of talaq-e-biddat, despite the Supreme Court’s ruling.

While Section 3 of the Ordinance, reaffirms the Supreme Court ruling, stating that, “Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”, there is a difference between Section 3 of the Ordinance and the Supreme Court’s ruling. The  Supreme Court had held the act of talaq-e-biddat to be void, whereas the Ordinance holds the act of talaq-e-biddat as void and illegal. An act which is deemed to be void is an act without legal sanctity or binding effect. The action does not grant the parties any positive enforceable rights, but neither does the act make you liable to face penal consequences. A Void act can be equated to a civil wrong. An Illegal act, however, is a crime, with serious penal consequences.

As a Muslim marriage is essentially considered a contract, we could refer to the principles of Indian Contract Act, 1872 (“Contracts Act”) to understand the difference between void and illegal and how the Ordinance goes beyond the Order. The Contracts Act differentiates void and illegal in the following manner: A void agreement is not punishable under law whereas an illegal agreement is considered as an offence, hence the parties to it are punishable and penalised under Indian Penal Code. The scope a void contract is comparatively wider than an illegal contract as all agreements which are void may not necessarily be illegal, but all illegal agreements are void from its inception.

Picture courtesy: Raising Kashmir

Section 4 of the Ordinance, is the penal provisions, which states; “Any Muslim husband who pronounces talaq-e-biddat referred to in Section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.”

Section 5 goes ahead to state that, “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 for her and dependent children as may be determined by the Magistrate.”

While Section 5 attempts to take into consideration the condition of the Victim, it fails to take into account as to how would an individual imprisoned under Section 4, provide subsistence under Section 5 of the Ordinance. As a general principle, the estate/property of the guilt the husband can be held liable, but more often than not there would be situations where the property/estate won’t be able to provide subsistence for a period of three years to a woman and her children.

More than that, the Ordinance disregards the very reason why the case was filed, and the principle that the Court had laid down. The Court held that unilateral and instant talaq violated the rights of Muslim women, as it did not give parties an opportunity to reconcile, which is a part of normal divorce proceedings and allowed the errant husband to take divorce and abandon the wife without any specific cause. The Court held that wives could not be abandoned and all accountability washed off under the guise of an instant talaq. Hence the Court held that the declaration of talaq-e-biddat would be void (though not illegal), so as to have no sanctity and ensure the couple stays together.

A far more practical Ordinance, instead of criminalizing the act and imposing jail time, would have had a provision equivalent to Section 22 of the Special Marriages Act, 1954 and the Section 9 of the Hindu Marriage Act, 1955, i.e., Restitution of Conjugal Rights.

Once a Muslim woman has beendivorced” by her husband using talaq-e-biddat, holding instant talaq as void, the case becomes one of abandonment, i.e a case where the husband, without reasonable grounds had withdrawn from the company of the other. Restitution of conjugal rights, as present in the Hindu Marriage Act and the Special Marriage Act, is a perfect remedy for this scenario. It is important to note that while the Dissolution of Muslim Marriage Act, 1939, does not grant a remedy of restitution of conjugal rights on Muslim women, the Mumbai High Court, 2010 had held that, though there were no express legal provisions, there were no reasons under Islamic principles, as to why a Muslim woman should be barred from making an application for restitution of conjugal rights. Refusal by the husband to reinitiate cohabitation, even after a petition of restitution of conjugal rights, would have been contempt of court, leading to penal actions, including imprisonment.

Section 5 of the Ordinance, can be compared to Section 494 of the Indian Penal Code, 1860, which deals with the offence of bigamy. Section 494 of IPC, holds marriages after the first marriage as void and holds the errant party liable to criminal prosecution.  As explained above, there seems to be no good outcome for the doing so. It is important to point out in this instance, that if a man of any other religion, apart from Muslim, abandons their wife, the only remedy the wife has is a suit for restitution of conjugal rights. The wife, in those cases, cannot have the husband arrested. This creates a difference between Muslim married couples and married couples of other religions, which is not based on any reasonable differentia and would not stand the test of Article 14 of the Constitution.

To reiterate while the Ordinance, and the Muslim Women (Protection of Rights on Marriage) Bill, 2018 which is meant to replace it, has the right idea, in its current form it is most likely to be struck down by the Supreme Court eventually.

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