The Muslim Women (Protection of Rights on Marriage) Bill, 2017, which seeks to make triple talaq a criminal offence punishable with three years in jail and a fine, has been passed by the Lok Sabha and now requires the Rajya Sabha’s approval. In August, the Supreme Court had declared triple talaq – the practice by which Muslim men divorce their wives by saying the word talaq three times in one sitting – unconstitutional.
Muhammad Munir, a professor of law and director-general of the Shari’ah Academy, International Islamic University, Islamabad, read the Bill and compared it with measures taken in several Muslim countries to reform Muslim personal law. In a telephone interview with Scroll.in, he compared the punishment prescribed for Muslim husbands in India for resorting to triple talaq with how Pakistan penalises them for not following the law on divorce. His conclusion was that the Bill has several shortcomings and will lead to problems if and when it becomes law.
Excerpts from the interview:
As an expert on Islamic law, how do you respond to the Muslim Women (Protection of Rights on Marriage) Bill, 2017?
I have reservations regarding most of the provisions of the Bill. To begin with, Section 2 (b) says, “Talaq means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.” Frankly, I have never seen such a definition of talaq in fiqh [Islamic jurisprudence] manuals or statutory laws of any Muslim state. This is something unique.
In what sense is it unique?
You have talaq-e-ahsan, talaq-e-hasan and, of course, talaq-e-biddat. This Bill makes all forms of talaq appear the same and illegal as well.
Are you saying the Bill’s definition of talaq is erroneous or inadequate?
There should have been a broader definition of talaq. They should have provided a legal mechanism as to how a husband should pronounce talaq. This Bill is silent on it.
What countries opting for reform do is that they ensure talaq is pronounced in the court, and that it is not recognised as talaq if it has been done outside it. This is what Algeria has done. There, a man wishing to divorce his wife has to approach the family court. The judge then has to find out the reason why the husband wants to give talaq, decide whether the reason cited is justified, and seek to reconcile the husband and wife. The court is given 90 days to bring about a reconciliation between them, failing which the husband is allowed to pronounce one talaq in court. In some countries, it has to be pronounced before two witnesses. This ensures the door to the revocation of divorce remains open.
Obviously, after the revocation, they can remarry?
They may marry, yes. More often than not, during the reconciliation process lasting 90 days, the husband regrets his decision of having pronounced talaq. If I am a Muslim husband in India, how do I divorce my wife? There is no mechanism provided in the Bill.
Doesn’t the bill make out implicitly that a Muslim husband cannot pronounce talaq three times in one sitting, while other forms of talaq remain valid?
Honestly speaking, this Bill is silent about it.
Are you saying the Bill will create problems in the future?
Problems will arise when or if this Bill becomes an Act. I can very well see what will happen: the husband, knowing or believing that he can pronounce triple talaq, will do so. The wife will then lodge a complaint with the police and the husband will be arrested. However, once the case goes to court, the wife has to prove that the husband has resorted to talaq-e-biddat. How is she going to furnish evidence? The court, after all, was not involved in their divorce. In most cases, triple talaq is not pronounced publicly or before witnesses. Men mostly pronounce triple talaq in anger. The husband will deny before a judge that he resorted to talaq-e-biddat. This is typical. We see such cases in Pakistan. It will be the same in India.
The Bill sends the husband to jail, gives the wife maintenance money and custody of her children. But she should have also been given her dower. I am surprised the Bill should have glossed over it.
The problem with the Bill is that it seeks to protect the interests of women, as is obvious from its title. But it will end up not protecting the interests of women and expose men to new dangers.
How is the Bill exposing men to new dangers?
For the very simple reason that it would be difficult for a woman to prove that the man has given her triple talaq in one sitting. Yet, he would be arrested. The other problem is that you are punishing the husband for an act that, in Section 3, has been declared void and illegal.
Yes, many in India have levelled this criticism against the Bill.
How can you punish a man for an action that has no legal effect? Whether he said it three times does not matter at all. To punish a man for giving talaq that has no legal effect is like multiplying a number by zero. [Laughs]
Yes, there will be people who will say the husband must be punished for resorting to talaq-e-biddat, although it has not been prescribed by Allah. I have seen at least one person in Pakistan, who is now a member of our Parliament, say that a husband who pronounces talaq three times in one sitting should be punished with six months of imprisonment. But then he also argues that talaq-e-biddat should be recognised as legal.
Who is this person?
He is Maulana [Muhammad Khan] Sherani. He was chairman of the Islamic Council of Ideology for a long time. He is a rigid man. He used to say husbands can beat their wives.
What about Section 4 that prescribes a punishment of three years in prison and imposes a fine?
This section does not define what should be the maximum fine. I do not know what laws they will rely upon to impose a fine on the husband. As far as incarceration of three years goes, it criminalises the husband and is unfair and unjust to him. For instance, it is possible that the wife, very angry with her husband, demanded that he pronounce talaq three times in one sitting. There are several instances of this in Pakistan and elsewhere. Shouldn’t the wife be punished as well?
Do you think three years of imprisonment is excessive?
Yes, I do. There is a concept in the tort law of contributory negligence. For instance, if I work with a machine in a factory and hurt myself by my own negligence or mistake, then I am deemed to have contributed to my injury. So, if the compensation due to me is Rs 50 lakhs, the court could very well halve it because of my contribution to the injury I sustained.
But the Indian Bill does not factor in the possibility that the wife could have angered the husband. Let us assume that a husband stumbles upon his wife making out with another man. Is he justified in getting angry and pronouncing talaq three times? Or assume the husband tells the court that it was his wife who wanted to be divorced instantaneously and irrevocably, that they were engaged in a heated argument and that she made this demand on him. And he, in a huff, did exactly that. What will the court do?
Give me an example of it?
There was this couple, both civil servants. The husband had given the wife talaq once but revoked it. They resumed cohabitation. But they quarrelled again, and the wife demanded that her husband divorce her irrevocably. He did. But they wanted to reunite all over again. They were known to me and they came to me for advice. I do not want to tell you what happened next as their marriage is now over. But they did go to a mufti [Muslim legal expert], who gave them a fatwa [opinion] and they reunited yet again.
That is why I say the Bill should have laid out the correct procedure for pronouncing talaq. For instance, it could have said that no matter how many times a husband pronounces talaq during the wife’s tuhr [when she is not menstruating, called the period of purity], it should be counted as one. Or it could have said the husband can pronounce talaq in three successive tuhrs and it would then become irrevocable.
In India, Muslims, as is true of most minorities in any country, are sensitive to matters of faith and to courts and the state interpreting what they think is Islamic law. Since the state has decided to legislate on the subject, it should have included provisions laying out the correct process of giving talaq.
What about Section 5, which says a Muslim woman upon whom talaq is pronounced is entitled to subsistence allowance for herself and her dependent children?
It is the magistrate who will fix the subsistence allowance. Given that her husband can be sent to jail for three years, I do not know where he will get the money to pay his wife and children from.
Yes, this point has been raised by critics of the Bill in India as well. Has any other country criminalised triple talaq?
No country has criminalised triple talaq. It has been made illegal and void. For instance, in Algeria, talaq pronounced outside court is not considered legal.
Nevertheless, if the husband were to pronounce talaq three times in one sitting, would he be punished?
No, he would not. This is because talaq pronounced three times in one sitting is counted as one. When I wrote the paper “Reforms in Triple Talaq in the Personal Laws of Muslim States and the Pakistani Legal System: Continuity Versus Change”, I had the laws of all countries before me. Twenty-one states or provinces within these states either banned triple talaq outright or, as in the case of Pakistan and Bangladesh, did so implicitly. All Muslim countries say that no matter how many times a person pronounces talaq in one sitting, it will be counted as one. Or they say that talaq can be pronounced only before a judge in a court.
India, in this sense, is a break-away state.
Yes, it is. I think even as India seeks to protect women, it shows no mercy to men. You do not even know whether it would be beneficial to women, because I cannot understand how a husband in jail can maintain his wife.
Assume the husband is sent to jail for three years for resorting to talaq-e-biddat. But his marriage remains intact, does it not? After all, the Bill has declared talaq-e-biddat illegal and void – and, therefore, ineffective.
I am sure the husband will not wish to return to the wife who sent him to jail for three years. But yes, legally speaking, as per the Bill, the marriage remains intact. But practically, their marriage is over.
But it creates complications, does it not? For instance, if their marriage is legally intact, the woman cannot marry again.
You are right. She cannot marry another man. And that is another unintended outcome of the Bill.
Many in India argue that if Pakistan can penalise husbands for divorces, why can’t India? How does penal punishment work under Pakistan’s Muslim Family Law Ordinance, 1961, which lays down the procedure for divorce?
In Pakistan, you will not find reported judgement, that is to say judgement from the High Courts or the Supreme Court on this issue.
Judgement on what?
Judgement pertaining to the punishment of husbands. In Pakistan, we cannot say still that we have abolished triple talaq explicitly. All we can say is that the procedure set down by the Muslim Family Law Ordinance seems to suggest triple talaq has been abolished implicitly.
Can you explain the procedure for divorce that the Muslim Family Law Ordinance lays down?
Basically, Section 7 (1) of the Muslim Family Law Ordinance says, “Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.” [The chairman here is the chairman of the Union Council, an elected local government body]. Section 7 (2) says whoever contravenes Section 7 (1) could be imprisoned for a maximum one year with a fine not exceeding Rs 5,000.
In most cases in Pakistan, the man pronounces talaq and does not give notice to the chairman. He is liable to be punished. But you will not find any judgement on this. In 1993, the Supreme Court ruled that if the husband gives talaq and does not inform the chairman of the Union Council, then the divorce is not effective. This is because it is the Union Council that gives the certificate of separation to the divorced couple. Without it, the divorce cannot be said to have kicked in.
So, no one has been punished in Pakistan for contravening Section 7 (1)?
No one has been punished thus far. The provision is an apt example of what you call a paper tiger. It does not mean anything. But you must remember that we do not say that a man would be punished if he were to resort to talaq-e-biddat. The provision applies to talaq in any form – whether it is ahsan-e-talaq, hasan-e-talaq or talaq-e-biddat. In all cases, he has to inform the chairman and provide a copy of it to his wife. But courts have not been punishing husbands for not doing this.
Can you give an example of how courts in Pakistan skirt around Sections 7 (1) and 7 (2)?
Take the Supreme Court judgement of 1963 in Syed Ali Gardezi versus Lieutenant Colonel Muhammad Yusuf. It said that if the husband gives talaq to his wife and does not inform the Union Council, then it will be construed that he has revoked the talaq. This was the judgement given by Chief Justice SA Rahman. The Muslim Family Law Ordinance does not speak of revocation. I consider it a wrong judgement.
But the Gardezi dictum became the Gardezi rule and the High Courts in Pakistan applied it in dozens of cases. It was followed until 1993. This was when in Kaneez versus Wali Muhammad, a five-member bench of the Supreme Court ruled that Rahman’s remark in the Gardezi judgement was wrong. They said that the failure to inform the Union Council does not revoke the talaq, but the divorce remains ineffective. The husband can give notice to the Council that he has divorced his wife at a later stage.
So what is the procedure of talaq as it operates in Pakistan now?
The husband divorces his wife, informs the Union Council and furnishes a copy of it to his wife. They come to the Union Council, which tries to reconcile them. The talaq does not kick in for 90 days. Mostly, after the expiry of the 90 days, the husband and wife come to the Union Council and take the certificate of separation.
But triple talaq is banned in Pakistan implicitly, right?
Under Section 7, it is banned implicitly. But triple talaq happens in Pakistan just about every day.
Do you think triple talaq will persist in India despite the Bill?
Let it be passed in the Rajya Sabha. But it will certainly create a new set of problems. This is because the Bill does not state the procedure the husband should follow to divorce his wife legally. This is the major lacuna of the Bill. The husband may pronounce talaq only once, but his wife can still claim that he did it three times in one sitting.
How would you have drafted the Bill?
I would have introduced a clause saying no matter how many times the husband pronounces talaq in one tuhr of his wife, it will count as one.
