The Muslim Women (Protection of Rights On Marriage) Bill, 2017, is no doubt a piece of progressive social legislation, well warranted. In the celebrated words of justice Wendell Holmes of the American Supreme Court it appears to have been actuated by the ‘felt necessities of the times’. Such a legislation in India was long overdue. The evil practice of talaq-e-biddat was prevalent in India since long and had to be abolished at the earliest. The Supreme Court of India therefore, felt it imperative to examine the constitutionality of such a practice and by way of its judgment dated 28.08.2017 in the case of Shayara Bano Vs. Union of India and others had declared the practice of talaq-e-biddat to be contrary to the principles of constitutional morality, equality, gender justice and hence, unconstitutional.
The Muslim Women (Protection of Rights On Marriage) Bill, 2017, is therefore, well-intentioned having judicial imprimatur and acceptability. However, the manner in which the bill has been passed by the Lok Sabha i.e. (The House of People) in a single day leaves much to be desired. It has been felt in many quarters that some provisions of the bill are self-defeating and bear the character of being a hasty and ill-considered piece of legislation and therefore, it was all the more necessary that a thorough debate and discussion on all provisions of the bill ought to have been undertaken in the Lok Sabha before rushing through its passage.
In particular, according to them, what seems to be disturbing is section 4 appearing in chapter II of the bill and section 7 appearing in chapter III of the bill. The said sections read as follows:
“Whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine.”
“Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the said Code.”
It is well settled in law now that the criminal process for an offence which is ‘cognizable’ can be set in motion by any person, and once the ingredients of the cognizable offence are satisfied in the complaint the police would be obliged to register the FIR and carryout the investigation. In the case of Lalita Kumari vs. Govt of UP a Constitution Bench of the Supreme Court has conclusively laid down this law. Such being the legal position, making of the offence of talaq-e-biddat a cognizable offence without further specifying the locus of the complainant to file the complaint to the police would open the flood gates for filing of complaints by third parties motivated by extraneous considerations, which could also be at times without the knowledge or consent of the concerned wife, thereby causing serious prejudice to domestic harmony and peace, and thus militating against the very purpose and object of the legislation. Unlike section 498A IPC (a somewhat similar provision relating to cruelty against a married women) which prescribes that the complaint to the police can be given only by the person aggrieved by the offence or by any person related to her by blood, marriage or adoption or by any public servant belonging to such class or category as may be notified by the state government in this behalf, in the present bill there is no such prescription.
A further area of concern in the bill is that the offence of talaq-e-biddat has not been made ‘compoundable’. One fails to understand as to how by not making the offence compoundable the object of the legislation is furthered. In the object and reason of the proposed legislation it is clearly mentioned that the practice of talaq-e-biddat is “the age-old practice of capricious and whimsical method of divorce, by some Muslim men, leaving no room for reconciliation”. It defeats logic as to how by not making the offence compoundable the aforesaid paramount objective of reconciliation, peace and harmony of the family can be achieved. In the context, it is relevant to note that in relation to section 498A IPC i.e. cruelty by husband or relative of husband to a married woman (a somewhat similar provision) the Law Commission of India in its 243rd report has recommended that the offence under section 498A IPC – which is presently non-compoundable – be made compoundable. In para 19.5 of the report, the commission has recommended as follows:
“The offence under S, 498-A shall be made compoundable, with the permission of Court and subject to cooling off period of 3 months, as already recommended by this Commission in 237th Report. The preponderance of view is to make it compoundable.”
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The Lok Sabha therefore, by passing the bill within few hours of its introduction seems to have acted as a shackled and non-deliberative body. Issuance of a whip by a political party is, admittedly, an extra-constitutional growth in India. The framers of our constitution had consciously opted for the Westminister model of parliamentary democracy with its emphasis on Parliamentary Sovereignty on the fond hope and trust that each and every issue of national and international importance, touching upon the lives of millions, shall be examined by parliament threadbare on merits by the various parliamentary committees before its passage. Debates and discussions in parliament has been said to be the life-blood of democratic functioning of every parliament failing which it attracts, in the ringing words of Sir James Bryce and Prof. K.C. Wheare, the taint of “Decline of Legislature”. The Muslim Women (Protection of Rights On Marriage) Bill, 2017, indisputably is welcome and laudable. However, provisions of the bill require a detailed scrutiny and analysis and a holistic examination by expert bodies before making it an act of parliament. Wholesale social engineering through law is not just going through the motions.
It is in this context, that the role of the Rajya Sabha i.e. the upper House of Indian Parliament, otherwise referred to as the House of Elders, assumes increasing importance. It has been said of the American Senate, which is the upper house of American Congress (Parliament), that “while the House of Representatives is the most shackled deliberative body of the world, the Senate is the freest.” The Rajya Sabha therefore should give due cognizance to the above statement and in keeping with its constitutional mandate carry out a detailed and in-depth examination of the aforesaid provisions of the bill before allowing its passage, failing which the entire exercise may amount to throwing the baby out with the bath water.
The author, Jana Kalyan Das, is a Senior Advocate in the Supreme Court of India. He is a senior member of the Supreme Court Bar Association Executive Committee.