Muslim Divorce Regulation Bill: Full of ambiguities

Safi H. Jannaty

AT last, the government of India has enacted the Muslim Women (Protection of Rights on Marriage) Bill without any amendments whatsoever to the draft. As the bill was not cleared by the Rajya Sabha, the upper house of the Indian parliament, the government took the route of presidential ordinance to implement the bill despite the fact that the ordinance and hence the regulatory effect will lapse in six months since it will not be cleared by the Rajya Sabha by then.

Moreover, an ordinance is a constitutionally sanctioned ad hoc mechanism by which critically urgent situations are met when Parliament or a State Assembly is not in session and the government cannot afford to wait until it reassembles for fear of things becoming unmanageable if not legislatively redressed immediately.

Without an iota of doubt, the situation did not warrant the government to take the route of issuing an ordinance. Even before the talk of the bill or the Supreme Court directives, the number of terminations of marriage by means of what is referred to as instantaneous talaq was minuscule. A survey covering over 20,000 Muslim men and women done in 2017 found that the incidence of the so-called oral triple talaq without witness or record among the 331 cases was a mere 0.3 percent.

From the day the bill was tabled in the Lok Sabha, the lower house of parliament, the debate on the bill has been as hazy as its content. The political parties who are opposed to the bill did not understand it correctly, nor did Muslim leaders hit the right buttons.

A close observation reveals that the entire drama is being played out before the eyes of over one billion people in the name of protecting the dignity of Muslim women in India. However, it is much more than what meets the eye. The well-calculated step is part of the larger sinister design to strip minorities of their right to practice, propagate and manage their personal affairs in accordance with their religions. The obvious target for now is the Muslim community; however, ultimately, other communities too will be forced to bear the brunt as there are concerted and concentrated efforts to shake and desecrate the pillars of secularism. In fact, one must be deaf if one is not hearing the clarion call to tear down the cherished secular fabric of the Indian Constitution.

Muslim leaders and scholars have focused most of their attention on the politics involved in the issue instead of highlighting the inequity and inequality insofar as the provisions in the bill are concerned. Sadly, community leaders and others have fallen prey to the devilish trap and have perilously ignored the vicious agenda of the Hindutva forces which are diametrically opposed to the secular ethos and religious freedom guaranteed by the Constitution, the sole obstacle preventing them from stripping India of secularism.

It does not require any legal luminary or expert to decipher the objective of the regulation. If seen in the light of Supreme Court directives, which too are as superfluous as the law, the sole purpose should have been to curb the so-called “triple talaq” practice observed erroneously by some sections of the Muslim community. Just a cursory reading makes one suspect the devious design hidden in the ambiguities surrounding the law. It is aimed to cause commotion first and then using the ensuing chaos, misuse and misinterpret the law in order to abolish the personal laws of different communities guaranteed by the Constitution.

In a broader sense, the bill is aimed at prohibiting divorce by Muslim men by means of pronouncement whether verbal or written and here is the caveat. The heading of the regulation states: “To prohibit divorce by pronouncing talaq by husbands.” Section (3) of the law says: “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.” Although, for the purposes of applicability of the law, it defines, divorce as “talaq-e-bidah”, yet makes it ambiguous in the next part by adding the phrase “similar forms of divorce.”

A plain reading of the section clearly denotes that it does not restrict the applicability of the law only to cases where men make divorce irrevocable by uttering or stating it three times in one go or in one sitting without following the norms and rules stipulated in the Holy Qur’an including the waiting period.

In a sense, it prohibits and makes all divorces pronounced by husbands on wives illegal and void without any explanation about the nature, means, kind or type of divorce. After terming the divorce pronounced by Muslim men illegal, it makes such pronouncements a criminal offence with a provision of punishment of three years jail for the culprits. Ironically, this punishment of a jail sentence of three years is equal to the punishment prescribed by Section 498(a) of the Indian Penal Code for a husband or his relative who is found to be subjecting a wife to cruelty. However, there is a clear definition of cruelty in that Section. As Section 498(a) is currently being misused by disgruntled women, there is a greater possibility of this new law creating problems for men who could be accused by women of having pronounced talaq verbally as the law does not require any evidence or witness to substantiate the accusation.

Legally speaking, the law does not mandate or determine any framework or mechanism under which Muslim husbands and wives can separate. Nor does it provide for the applicability of the Muslim Personal Law for cases not coming under the ambit of the law. From a religious point of view, undoubtedly, it is an open and clear trespass on religious domain, which grants sanctity to the institution of marriage and families. When communities enjoy freedom to practice their faith and religion and when like other laws, Shariah is allowed to be applied on personal matters including marriage and divorce procedures and formalities, why should there be a separate legislation to cover personal affairs that are defined under the respective personal law?

The third section of one of the most succinct and concise laws ever promulgated by India after independence deals with subsistence allowance for women upon whom divorce was pronounced and that is set to be determined by a court magistrate who is also empowered to decide on the manner in which the custody of children be awarded to such women. The bill, which can be reproduced on two sheets of A-4 size paper, ends with an objective statement that is as ambiguous and conflicting as the main section.

In short, the law makes the State an ombudsman or rather a godfather to coerce couples to live together despite differences, conflicts and incompatibility or face punishment. It brazenly overrides the clearly defined provisions of the Muslim Personal Law Application Act, which has governed the affairs of the community since 1937. One wonders when qadis or priests administer the oath or perform the rituals to solemnize marriages, how it can be left to the State or the State-appointed magistrates to nullify a divorce or determine subsistence allowance or the custody of children or other issues related to separation and divorce.