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Muslim Women (Protection of Rights of Marriage) Ordinance 2018 or as it is more popularly known as ‘Triple Talaq Ordinance’ lays down the law that giving instant triple talaq is illegal and void and the punishment for the same would be imprisonment for three or more years for the husband, also he will be liable to pay fine. Even though Muslim Women (Protection of rights of Marriage) Bill 2017 is pending in the RajyaSabha, the Union Cabinet passed the ordinance to amend provisions of the bill on September 19 and President Ram NathKovind signed it the same day. Such urgency was showed because it is believed that notwithstanding the Supreme Court’s decision that the practice is unconstitutional, it is still carried on.

The Ordinance was passed to make three amendments in the Muslim Women (Protection of rights of Marriage) Bill 2017 passed by LokSabha; the provision relating to the bail of the offender, the inclusion of provision which says that the offence would be cognizable only if the FIR is lodged by the victim wife or her blood relatives, also the offence would be compoundable only on the instance of the wife if the Judicial Magistrate of First Class deems it fit and lastly, the provision regarding reconciliation and compromise among the parties.

The reasoning behind passing the said Ordinance in relation to the Muslim Women (Protection of rights of Marriage) Bill 2017 which is pending in RajyaSabha is the unabated continuity of the practice. The fact that should be given importance however is not the political urgency of the Ordinance or the “overpowering urgency and compelling necessity” but the excessive penalty and unconstitutional provisions.

The crimes of armed riots and import or export of counterfeit currency are some of the offence given under IPC which have 3 years of imprisonment. If seen on a balance of criminal intension and severity, a husband giving an instant ‘talaq’ instead of waiting for three months cannot carry such a weight. The incompetence could also be seen from the fact that the main stakeholders of this Ordinance were not consulted during the whole process.

Moreover, the ordinance uses the words such as “subsistence allowance”, which are to be provided to the victim wife. The point of concern is that under Indian law the term is mostly used in laws relating to workmen. It is quite unclear as to,was usage of term mostly used in service jurisprudence used in relation to Muslim wives unintentional or an indication to the thought process of the law makers. Additionally, what the Ordinance fails to consider is that if the husband is in jail for over three years or more then how would it be possible for him to provide “subsistence allowance” to the victim wife in addition to maintenance as provided under other laws applicable.
The triple talaq ordinance could be considered as an arbitrary ordinance or executive decision as IPC, Domestic Violence Act and Dowry prohibition Act already apply to Muslims. There was no need for an additional law to protect only Muslim women. The ordinance makes such an act a criminal offence which does not exist in the eyes of law, since the Supreme Court has already set aside instant triple talaq in the case of ShayaraBano.

It fails to consider the basic rights which the Constitution gives to an accused, i.e., innocent until proven guilty. The ordinance does not provide for hearing the accused and arbitrarily pronounce an accused guilty with the provision of attaching conditions to the bail like payment of money etc. at FIR stage. The provision of bail as given under CrPC state that the bail is granted on the satisfaction of the judge but the ordinance puts a condition that in case of offence of triple talaq a bail can only be granted on the conditions imposed by the wife.
The Constitution of India provides for separation of power and states that an ordinance can only be passed if such circumstance exist which render it necessary to take immediate action. In the given situation of triple talaq there was no need for immediate action as the practice of ‘talaq-e-biddat’ or instant triple talaq was already set aside by the Supreme Court.

At last, the reason of the ordinance is says that the Supreme Court held triple talaq unconstitutional where-in-fact, the Supreme Court merely set aside the practice of instant triple talaq. Here, it is importance to say that the ordinance could be considered unconstitutional on grounds of harm theory (as it targets Muslim men), excessive punishment and arbitrariness.

By- BhanuPriyaBhati
(Student Reporter INBA)

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