The ordinance, which contains the provisions of the bill which is stuck in Parliament because of opposition from non-NDA parties, treats triple talaq as a non-bailable offence punishable with a sentence of up to three years. It provides for a magistrate to grant bail to a husband in a triple talaq case but only after the wife has been heard. The government said the decision was a “compelling necessity” given the widespread misuse of “talaq-e-biddat”, or instant triple talaq.
The bail provision was introduced after criticism that “criminalising” triple talaq will break up marriages and deprive families of breadwinners. Also, a complaint can be filed only by the affected wife or her blood relatives or those related by marriage rather than any member of the public or an authority. “Now, a magistrate can use his powers to settle the dispute between a husband and wife. This creates scope for reconciliation,” law minister Ravi Shankar Prasad said.
These provisions were part of the amendments approved by the Cabinet on August 29 to the “Muslim Women Protection of Rights on Marriage Bill” that was approved by the Lok Sabha and is pending in the Rajya Sabha. The ordinance will be seen in the political light as well as BJP had pressed its “secular” rivals like Congress and other parties to explain whether they stood for gender justice, particularly in the light of the SC holding triple talaq to be unconstitutional and not essential keeping in mind that many Muslim nations have banned it.
Although there is a strong chance of the ordinance lapsing because it is unlikely that the opponents would back off on resistance before the winter session is convened, BJP chief Amit Shah promptly celebrated the Modi government’s decision as “historic”. Prasad shared data to show that 430 cases of triple talaq have happened since January 2017 and the offence continues unabated.
He blamed Congress for stalling the bill in the Rajya Sabha and said the ordinance is needed to enable gender justice while calling on Congress president Sonia Gandhi to “rise above vote-bank politics”. He attacked BSP chief Mayawati and Trinamool leader Mamata Banerjee while also appealing for their help. The ordinance is only applicable to incidents of instant triple talaq and not talaq followed according to Sharia with aprescribed waiting period before a divorce is allowed.
Having failed to muster support in the Rajya Sabha to pass the contentious legislation, the ordinance route has been chosen, a move to mount pressure on political opponents who argue that the law needs the support of organisations representing the Muslim community and accuse BJP of playing “divisive” politics to polarise opinion on communal lines. Prasad said he met senior Congress functionary Anand Sharma to seek support without success.
“I had met him five to six times… we had sought cooperation,” he said, adding there was no response from the main opposition. With marriage and divorce laws being on the concurrent list of the Constitution, it is not binding on the Centre to seek the nod of states on any law passed by both the Houses of Parliament.
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