The proposed bill that criminalizes the practice of instant divorce "empowers" Indian Muslim women by giving them a larger say in dissolving marriages, custody of minor children and the right to seek maintenance from their estranged husbands, according to the cabinet-cleared controversial legislation opposed by Muslim groups.
The bill defines triple talaq as "any pronouncement (of divorce) by a person upon his wife by words, either spoken or written or in electronic form, or in any other manner". It proposes to make the practice a punishable offense and is set to be introduced in the Lok Sabha next week.
The draft bill says the practice against "constitutional morality" and "gender equity" is to be considered "void and illegal".
Anyone who pronounces instant divorce "shall be punished with imprisonment for a term which may extend to three years and a fine", the bill proposes.
In its statement of objects and reason, the draft mentions the landmark Shayara Bano case in which the Supreme Court invalidated the practice of instant triple talaq. The statement would be read bylaw minister Ravi Shankar Prasad when he introduces the bill in the Lok Sabha to explain why the government had to formulate the legislation.
Shayara Bano, a 38-year-old woman from Uttarakhand, fought a long legal battle seeking an end to the patriarchal custom after she claimed to have suffered for 14 years in her marriage.
"This judgment gave a boost to liberate Indian Muslim women from the age-old practice of the capricious and whimsical method of divorce, by some Muslim men, leaving no room for reconciliation," the minister says in the bill's statement of objects.
The judgment vindicated the position taken by the government that "talaq-e-biddat", which allows men to pronounce divorce thrice in one sitting, is against "constitutional morality, the dignity of women and the principles of gender equality, as also against gender equity guaranteed under the Constitution".
Clerics and several Muslim organizations, cutting across sects and schools of jurisprudence, protested against the Supreme Court judgment and termed the government's stand as "uncalled for interference" in the personal laws of the community.
Ravi Shankar Prasad, however, in the bill's objects and reasons says the All India Muslim Personal Law Board (AIMPLB), which was also a respondent in the Shayara Bano case, had contended that it was not for the judiciary to decide matters of religious practices such as talaq-e-biddat but for the legislature to make any law on the same.
"They had also submitted to the Supreme Court that they would issue advisories to the members of the community against this practice," the minister explains.
The bill notes that "there have been reports of divorce by way of talaq-e-biddat from different parts of the country" even after the Supreme Court invalidated the practice and the assurance by AIMPLB.
"It is seen that setting aside talaq-e-biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims. 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," the minister says.
The bill states that urgent suitable legislation was necessary "to give some relief to...the hapless married Muslim women who suffer from harassment due to talaq-e-biddat.
"This is essential to prevent this form of divorce, wherein the wife does not have any say in severing the marital relationship.
"The legislation would help in ensuring the larger constitutional goals of gender justice and gender equality of married Muslim women and help subserve their fundamental rights of non-discrimination and empowerment."