Triple talaq ordinance entrenches women in marital patriarchy rather than freeing them; must be reconsidered

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 was promulgated on Wednesday by the President of India Ram Nath Kovind. The ordinance commonly referred to as the "triple talaq ordinance" is one that has been passed with the aim of prohibiting and criminalising the Islamic practice of triple talaq whereby a marriage may be dissolved unilaterally by the husband by him pronouncing the world "talaq" three times in succession.

 Triple talaq ordinance entrenches women in marital patriarchy rather than freeing them; must be reconsidered

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The ordinance is problematic for many reasons: the foremost of which is the criminalisation of the practice of triple talaq. Under the ordinance, a person guilty of pronouncing triple talaq would be liable to three years' imprisonment. The ordinance, which makes the offence one that is bailable only after the woman is heard though the machinery of the law, can only be set into motion by the married woman or her relative.

In the same breath, the ordinance makes void any legal consequence for the marriage emanating from a triple talaq and thus effectively rendering the practice moot. The issue that arises is this: Under Islamic Law, a marriage is a contract. While the ordinance renders void a method of terminating the contract, the act of criminalising the means is something that requires strict scrutiny.

The offence, if any, should be that of "abandonment" and not that of pronouncing talaq. As if the talaq is void in itself, the marriage subsists. The aim of the ordinance—if it is indeed to protect Muslim women—is not served by criminalising triple talaq, because it only goes ahead and imprisons the husband, who in most cases is the source of maintenance for the married woman.

The ordinance also provides for an interim allowance to be paid to the woman in the event of her having talaq pronounced. However, this is moot if the husband is in jail. There can be little question of maintenance as he would not be in a position to earn money. The only women who can truly benefit under this law are those whose husbands have significant estates that would permit the payment of maintenance while the husband is not working.

Further, the grant of custody to the woman is also problematic. If the divorce itself is void, where does the question or custody at all arise? What will happen to the custody in case of another form of divorce? Why is custody being treated as a case peculiar for triple talaq? If there needs to be a revision on the law of custody insofar as Islamic marriages are concerned, then that needs to be dealt with via legislation that applies irrespective of the means of the divorce.

If the ordinance essentially seeks to protect Muslim women from abandonment, it needs to be tailored towards that rather than triple talaq. Triple talaq should be rendered void but then the consequential offence shouldn't be the act of pronouncing the talaq but the abandonment of the woman by the husband, who can desert her irrespective of the status of the divorce.

But this brings in the larger question: Should the government keenly intervene in relations between a husband and wife? If, under Islamic law, the triple talaq enables a husband to forthwith divorce his wife, should the remedy not be legislation by which the wife can plead for a no-fault divorce from the husband without recourse to court?

The whole approach behind the ordinance is one that keeps women entrenched in the marital patriarchy rather than liberating them. It works on the fundamental assumption that marriage is integral and inseparable from the identity of a woman. Such a mindset is backward and needs to change. The ordinance needs to be reconsidered as it fails to achieve its objects and only creates more legal confusion.

Updated Date: Sep 20, 2018 23:45:58 IST