A very flawed law: on instant talaq By A. Faizur Rahman

In this article publised in THE HINDU English Daily Dtd 28/12/2017

A. Faizur Rahman says that the proposed Bill criminalising instant talaq has no legal basis, and is riddled with contradictions

The Muslim Women (Protection of Rights on Marriage) Bill 2017, which is set to be tabled in Parliament today, is riddled with so many internal contradictions that one is left wondering what purpose it would serve.

The stated intent of the Bill is “to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands”. Talaq here is defined as “talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce”. 

The draft law goes on to declare, in Sections 3, 4 and 7, that the “pronouncement” of talaq-e-biddat by a person upon his wife in any form whatsoever “shall be void and illegal”, and whoever “pronounces” such a talaq “shall be punished with imprisonment for a term which may extend to three years and fine”, and the offence would be “cognizable and non-bailable”.

This amounts to a gross misreading of the August 2017 Supreme Court judgment which neutralised the legal effect of instant talaq and rendered it bad in law. In other words, the pronouncement of talaq-e-biddat does not dissolve the marriage, and this is the law of the land under Article 141.

Several contradictions

But the proposed Bill presumes that the “pronouncement” of talaq-e-biddat can instantaneously and irrevocably dissolve the marriage, and proceeds to “void” it in Section 3. Nonetheless, this begs the question of how after rendering talaq-e-biddat inoperative in Section 3, its nugatory pronouncement can be considered a cognisable and non-bailable offence in Sections 4 and 7. Can a law criminalise an act after conceding that it does not result in a crime?

However, the most glaring internal contradiction is found in Sections 5 and 6 which discuss post-divorce issues such as a “subsistence allowance” for the woman upon whom instant talaq “is pronounced” and the “custody of her minor children” as if her marriage is dissolved by the mere pronouncement of talaq-e-biddat. How could the authors of this Bill talk of post-divorce matters ignoring the fact that the pronouncement (instant talaq) has already been voided in Section 3 and cannot result in a divorce?

The chairman of THE All India Muslim Personal Law Board (AIMPLB) , Maulana Rabe Hasani Nadwi, had requested Prime Minister Narendra Modi to withhold or withdraw the proposed bill that criminalises the practice of instant divorce, an official spokesperson of the Muslim body said.

The Pakistan ordinance

With so many inconsistent provisions, the only option before the Centre is to withdraw the Bill immediately. Instead, in its place, it may consider something similar to Sections 7(1), (3), (4) and (5) of Pakistan’s Muslim Family Laws Ordinance, 1961 (http://bit.ly/2Cf7fz8).

According to these clauses, ‘any man who wishes to divorce his wife shall, after the pronouncement of talaq in any form whatsoever, give the chairman of the state-appointed Union Council notice in writing of his having done so, with a copy submitted to the wife. Within 30 days of receipt of notice, the chairman should constitute an arbitration council that comprises himself and a representative of each of the parties, for the purpose of bringing about a reconciliation between the parties. And talaq shall not be effective until the expiration of 90 days from the day on which notice is delivered to the chairman. If the wife is pregnant at the time of the pronouncement, talaq shall not be effective until the termination of her pregnancy’.

It may be noted here that the Muslim Family Laws Ordinance does prescribe, in Section 7(2), a simple imprisonment of one year. But this is not for the mere “pronouncement” of talaq, as envisaged in the Centre’s draft law. The husband will incur this punishment only when he pronounces talaq with an intention to divorce but fails to inform the chairman and the wife (in writing) about his pronouncement.

A case in the U.S.

As is obvious even in Pakistan, the mere pronouncement of talaq-e-biddat neither dissolves the marriage nor is it a cognisable offence.

This was proved beyond doubt in the interesting case of Tahira Naseer, a Pakistani citizen, decided by the ‘Court of Appeals of Virginia’, in August 2012 (http://bit.ly/2Dlympk). According to court records, Tahira was divorced by her husband, Nasir Mehmood Khan, through talaq-e-biddat, without any written intimation to the chairman of the Union Council.

The background to this case is as follows. In August 2000, Tahira married Nasir in Pakistan. Within a year, he told her three times that ‘he had divorced her pursuant to Islamic law’. Believing that she was divorced, she returned to her parental home and broke off all contact with Nasir, considering him to be her former husband. Then, in 2003, she married Hamid Mughal, who was a U.S. resident, in Pakistan, with another marriage ceremony, being held the next year in Fairfax County, Virginia, U.S. But this marriage too did not last long, and in November 2009, ended in them getting separated.

While waiting to seek a legal divorce in Virginia, Hamid discovered that Tahira had been married earlier and not obtained a legal divorce in Pakistan. He sought annulment of the marriage on grounds of bigamy which was granted by a U.S. trial court on the testimony of Ellahi, a Pakistani lawyer brought in by Hamid as an expert witness.

Tahira appealed against the verdict. But the Court of Appeals of Virginia rejected her arguments saying that the trial court was right in accepting Ellahi’s testimony to arrive at its decision and to treat her first marriage as legally intact because, as a Pakistani lawyer, Ellahi was a “better qualified expert” to interpret the Pakistani law than Tahira’s own witness who was not a lawyer. Ellahi had testified that ‘in order to be divorced in Pakistan, a person had to obtain a legal divorce, not just a religious one’. These facts and arguments make it clear that the Centre has no legal basis to justify the Muslim Women (Protection of Rights on Marriage) Bill 2017.

It negates the recent Supreme Court ruling by unwittingly favouring the All India Muslim Personal Law Board’s medieval view that the pronouncement of talaq-e-biddat breaks the marriage, and, therefore, needs to criminalised.

Source : http://www.thehindu.com/opinion/op-ed/a-very-flawed-law/article22288659.ece

A. Faizur Rahman is an independent researcher and secretary-general of the Chennai-based Islamic Forum for the Promotion of Moderate Thought. E-mail: a.faizur.rahman@gmail.com






A very flawed law: on instant talaq
In this article publised in THE HINDU English Daily Dtd 28/12/2017
A. Faizur Rahman says that the proposed Bill criminalising instant talaq has no legal basis, and is riddled with contradictions