Why is a new law needed for triple talaq, asked WCD Ministry

Under Muslim personal law, the father has the upper hand, as he is considered to be the natural guardian. (Illustration by C R Sasikumar)

The Ministry of Women and Child Development is learnt to have expressed certain reservations about the triple talaq Bill before the union cabinet approved it on Friday.

The proposed Muslim Women (Protection of Rights on Marriage) Bill criminalises talaq-e-biddat (instant triple talaq) and proposes a three-year jail term for a Muslim man who divorces his wife in this way. A copy of the draft Bill was circulated among the concerned ministries. While most ministries concurred, the WCD Ministry dissented on some issues.

The WCD Ministry questioned the need for separate legislation, arguing that divorce by triple talaq amounted to cruelty and hence, fell within the purview of Section 498A of the Indian Penal Code. This section, “Husband or relative of husband of a woman subjecting her to cruelty”, popularly known as the “dowry law”, defines “cruelty” as “any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security…”

The Law Ministry disagreed with the WCD Ministry — arguing that while this section provided for punitive action against a husband or his relatives, a separate law was required because there were no dedicated provisions to deal with instant triple talaq.

The WCD Ministry also flagged the issues of payment of maintenance, and the custody of children. The proposed Bill provides for maintenance to be paid to the wife through a magistrate, and for her to get custody of the couple’s child. Both of these provisions would legitimise the talaq, the WCD Ministry argued.

In response, the Law Ministry clarified that the maintenance was meant to serve as a “subsistence allowance” for the woman and her dependent children in case of a separation, until the divorce was finalised. Maintenance, as stipulated under the Muslim Women (Protection of Rights on Divorce) Act, 1986, would be applicable only if, and when, the divorce was finalised.

The Law Ministry also pointed out that a magistrate can decide on the custody of the children even if the couple were not divorced, and that custody in no way validated triple talaq. Under Muslim personal law, the father has the upper hand, as he is considered to be the natural guardian. The mother only has hizzanat or custody of a female child until puberty; and of a male child, until the age of seven in the case of Sunnis, and just two for Shias.

Incidentally, the WCD Ministry was not a part of the inter-ministerial group that was set up to draft the Bill after the Supreme Court “set aside” the practice of instant triple talaq in August. The group was headed by Home Minister Rajnath Singh, and included External Affairs Minister Sushma Swaraj, Finance Minister Arun Jaitley, and Law Minister Ravi Shankar Prasad among others.

The proposed law makes instant triple talaq a “cognizable and non-bailable” offence. Muslim women’s groups have sought a more comprehensive, codified Muslim personal law that goes beyond just instant triple talaq, and deals with all aspects of gender justice.