India needs a non-sectarian, gender-neutral law thataddresses desertion of spouses

Both Houses of Parliament have passed a Bill making instanttriple talaq a criminal offence, amidst persistent doubts whether it ought tobe treated as a crime or just a civil case. It is true that the Muslim Women(Protection of Rights on Marriage) Bill, 2019, is a diluted version of the Billas it was originally conceived. Earlier, it did not specify who could set thelaw in motion. Now the offence is cognisable only if the affected wife, or onerelated to her by blood or marriage, files a police complaint. A man arrestedunder this law may get bail, after the Magistrate grants a hearing to the wife.Thirdly, the offence is compoundable, that is, the parties may arrive at acompromise. The government says its main objective is to give effect to theSupreme Court’s 2017 verdict declaring instant triple talaq illegal. It claimsthat despite the court ruling, several instances have been reported. Making itan offence, the government says, will deter further resort to triple talaq, andprovide redress for women in the form of a subsistence allowance and custody ofchildren, besides getting the erring husband arrested. However, the corequestion regarding the necessity to criminalise the practice of talaq-e-biddathas not been convincingly answered.

In the light of the Supreme Court ruling on its validity,there is really no need to declare instant triple talaq a criminal offence. Thepractice has no approval in Islamic tenets, and is indeed considered abhorrent.Secondly, once it has been declared illegal, pronouncing talaq obviously doesnot have the effect of “instantaneous and irrevocable divorce” as this Billclaims in its definition of ‘talaq’. The provisions that allow a woman to claima subsistence allowance from the man and seek custody of her children can beimplemented in the event of the husband abandoning her, even without the man’sarrest. If triple talaq, in any form, is void, how the questions of children’scustody and subsistence allowance arise while the marriage subsists, is notclear. And then, there is the practical question of how a man can provide asubsistence allowance while he is imprisoned. It has been argued by the Bill’sproponents that dowry harassment and cruelty towards wives are treated ascriminal offences even while the marriage subsists. It is a patently wrongcomparison, as those acts involve violence and cruelty and are rightly treatedas criminal offences. The same cannot be said of a man invoking a prohibited formof divorce. The BJP projects the passage of the Bill as a historic milestone inthe quest for gender justice. Such a claim will be valid only if there is anon-sectarian law that addresses abandonment and desertion of spouses as acommon problem instead of focusing on a practice, which is no more legallyvalid, among Muslims.