Triple Talaq Case : Why The Triple Talaq Verdict Will Not Trigger An Instant Revolution

 

The Lok Sabha recently passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017. The bill's stated objective is to "to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husband (sic)". he Lok Sabha recently passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017. Our Parliament has two houses — the Lok Sabha and the Rajya Sabha. The Rajya Sabha with its many committees is ideally the house that is supposed to do the legislative heavy lifting. It is supposed to scrutinise the text of a legislation and ensure that it makes sense. For example, in this bill, there is a lot that does not make sense, and that means there is a lot that the Rajya Sabha needs to do. Take for example the definition of talaq as mentioned in Section 2 (b) of the bill:

definition of "talaq" as:

"'Talaq' means talaq-e-biddat or any other similar form of talaq (which, if it had not been for the provisions of this Act would have had the) effect of instantaneous and irrevocable divorce pronounced by a Muslim husband; "

From a legal standpoint, the definition also becomes problematic, as according to it, once pronounced, the divorce is in effect. Though the bill declares a talaq under this definition void, it fails to take into account the fact that you can make something void only if it is in effect, and you can’t declare it void unless you declare it void ab initio (invalid from the outset).

Either the definition had to change or Section 3 has to be changed to replace the word "shall" to “is” to resolve this contradiction.

There are more problems. Sections 5 and 6 are progressive sections in terms of policy but are very badly drafted. Section 5 says that a woman who has talaq pronounced on her is entitled to maintenance while Section 6 says that she is entitled to custody of her minor children. But if the talaq itself is void, there can hardly be a question of maintenance or custody. They only come into play post a divorce. In the absence of one, there is no question of the same.

Further, the provisions of maintenance and custody need to be further supplemented with provisions that speak as to situations when this will be necessitated, such as when the woman is not being maintained or is being deprived of custody. Else, the provisions are mere letters of law, having no meaning and fundamentally unenforceable.

A good bill takes a long time to draft, especially a bill relating to family law. Because, in India, family law is very complex. It has numerous judicial pronouncements and myriad of other legislations that have to be considered. A general bill like this one, with seven clauses, does no favour to anyone.

If the Rajya Sabha passes the bill in its present form, no one gains anything. It is not even a political victory. It is a badly drafted bill and needs to be fixed before it is passed if one hopes to achieve anything at all from it.