As the Union Cabinet approved an ordinance criminalising triple talaq on Wednesday, Muslim and women’s rights activists reacted with a mixture of pleasure and disappointment.

The ordinance imposes a jail term of up to three years for Muslim men who pronounce instantaneous and irrevocable divorce by uttering the word “talaq” three times in any form. The ordinance is based on the Muslim Women (Protection of Rights on Marriage) Bill, which was passed by the Lok Sabha in December 2017.

On August 9, the Cabinet cleared a number of amendments to the bill based on demands by Muslim women’s organisations. The amended bill was tabled in the Rajya Sabha a day later, only to be stalled by vehement protests by Opposition parties. Its passage has now been deferred to the Winter Session of Parliament. The triple talaq ordinance promulgated on Wednesday will now serve as an interim law for the next six months, after which the amended version of the bill will have to be tabled and cleared by both houses of Parliament before the law is finally passed.

While the provisions in the ordinance are an improvement on the original version of the bill cleared by the Lok Sabha, some Muslim and women’s rights groups maintain their belief that triple talaq – which was already deemed unconstitutional by the Supreme Court in August 2017 – should not be criminalised at all.

The road to criminalisation

Triple talaq has been controversial for decades and has been invalidated in a number of court judgements in India over the years. In 2002, for instance, the Supreme Court invalidated a divorce through triple talaq in a case called Shamim Ara vs State of UP.

In February 2017, however, triple talaq victim Shayara Bano and several other petitioners moved the Supreme Court to specifically demand that Muslim practices like triple talaq, polygamy and nikah halala – a practice that allows a divorced Muslim woman to return to her first husband only after marrying another man, consummating the marriage and then divorcing him – be declared unconstitutional. The fight was led by Muslim women and Muslim women’s rights activists, but as the controversial litigation wore on, their voices were increasingly hijacked by political leaders and Muslim male clerics. In August 2017, a five-judge bench of the Supreme Court declared triple talaq to be unconstitutional in a landmark 3:2 majority judgment.

Following the judgment, some Muslim women’s organisations, notably the Bharatiya Muslim Mahila Andolan which was one of the petitioners in the case, pressed for a law to make triple talaq a criminal, punishable offence. Within a year of the judgement, the Bharatiya Janata Party government tabled a two-page bill in the Lok Sabha, which sought to make triple talaq a cognisable, non-bailable criminal offence attracting imprisonment of up to three years and a fine.

One of the controversial provisions of the bill was that it allowed anyone to file a police complaint against a husband if they came across a case of triple talaq, with or without the consent of his wife. This provision has been amended in the ordinance, which allows only the wife and her close family relations to file police complaints against men who pronounce triple talaq.

In another significant amendment, the ordinance allows magistrates to grant bail to an accused husband “on reasonable grounds”, after hearing the wife. Additionally, the ordinance makes the triple talaq offence compoundable – it allows the husband and wife to settle on a compromise if it is at the insistence of the wife.

The Bharatiya Muslim Mahila Andolan welcomed the ordinance and the amended provisions that it contains. “These amendments are exactly the kind of changes we wanted to the original triple talaq bill,” said Noorjehan Safia Niaz, the co-founder and trustee of Bharatiya Muslim Mahila Andolan. “It would have been better if the law was passed by the Rajya Sabha as well, but this law is important because Muslim women need legislative protection against practices like triple talaq. Once a legislation comes in, there is always the possibility of improving it further.”

‘How will trials be conducted?’

Other organisations believe there is a clear difference between the unconstitutionality of triple talaq and making it a criminal offence.

“We are totally disappointed by this ordinance,” said Hasina Khan, a founder of human rights organisation Bebaak Collective, which was one of the petitioners in the case against triple talaq, but did not support criminalisation. “It will amount to targeting Muslim men in the name of Muslim women.”

She added: “The Cabinet passed the ordinance because they knew the Rajya Sabha would not pass it. We are going to see if we can challenge this ordinance in court.”

Human rights activist Javed Anand also expressed concerns about criminalisation of triple talaq, even as he expressed relief about the amendments that softened the stringent original version of the bill. “We stand by our position that it is far better to treat triple talaq as a form of domestic violence, under the Domestic Violence Act,” said Anand, speaking as the convener of the non-profit Indian Muslims for Secular Democracy. Even though the ordinance grants Muslim wives the right to an allowance from their husbands in cases of triple talaq, Anand points out that a man imprisoned for three years would not be in a position to earn and provide his wife with the allowance. Meanwhile, he said, the man would be provided with food, clothing and shelter in prison.

“Muslim women’s organisations have had concerns that nothing will change unless there is some kind of punishment for triple talaq,” said Anand. “But even though the Domestic Violence Act is a civil law, it does have provisions for punishment if the husband violates court orders. So it gives the husband an opportunity to behave himself.”

Lawyers from Majlis, a non-profit, feminist legal services organisation, expressed doubts about how the law against triple talaq could be implemented in cases where the instantaneous divorce is pronounced orally. “How will trials be conducted?” asked Audrey D’Mello, a lawyer at Majlis, which has been one of the most vocal critics of efforts to criminalise triple talaq. “If the man denies having pronounced talaq, what evidence would the woman have to prove her case?”

Cases of triple talaq are almost always in the context of domestic violence, said D’Mello, and women typically find it very difficult to get the police to file complaints under the law against domestic violence or Section 498A of the Indian Penal Code, which deals with dowry and cruelty. “But I suspect that the police will now encourage Muslim women to file cases under the triple talaq law, because it is against Muslim men,” she said.