Muslim women have dominated the social debate like never before. A class of women traditionally known to have been allowed minimal social interaction through ‘parda’ are now asserting their marital rights. This is an unprecedented development and would leave profound imprints on history.

It all began with the Supreme Court’s path-breaking judgment in Shayara Bano vs Union of India delivered on 22 August 2017. The Supreme Court by a majority of 3:2, set aside the practice of ‘talaq-e-biddat’ – triple talaq – by declaring it as unconstitutional. However, the battle is still not over. Imagine the result of this decision in effect. If a Muslim man would pronounce triple talaq, what will be the fall out? It would at best lead to civil contempt of the Supreme Court’s decision. Is that all for which the best Constitutional lawyers contested the case of Muslim women to guard them against arbitrary and unilateral pronouncement of talaq?

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Triple talaq is nothing but a social form of an ex-parte divorce verdict. No prudent person sufficiently trained in Constitutional Law would accept this fallacy. However, quite surprisingly we do have some senior lawyers, Professors of Law, senior journalists and social activists who though they reluctantly accepted the Supreme Court’s verdict are now actively campaigning against further strengthening of the legal position established by the Apex Court.

This is where the Union Government stepped in and showed unprecedented swiftness in translating the Supreme Court’s ruling into a legislative product. Hence, the Muslim Women (Protection of Rights on Marriage) Bill, 2017 is now before Parliament. The Lok Sabha has already passed the Bill but it is stuck in the Rajya Sabha for want of majority of the Government in the Upper House coupled with strong objections by opposition parties. Nonetheless, amid strong criticism on criminalisation of triple-talaq, we would see how the proposed law leaves Muslim women in the lurch with the legal status of remaining married but practically divorced. Isn’t this a case of a legislative absurdity which reflects poorly on the drafters of the proposed Bill?

The triple-talaq Bill has indeed led to a complex socio-legal condition for the Muslim community in particular and the country’s legal system in general. Television channels, print media and social networking platforms are flooded with competing opinions on the pros and cons of this proposed law. The supporters of the Bill are visibly riding on the argument of arbitrariness of ‘triple talaq’ and the necessity to curb such a practice through law. Prima facie the argument is tenable. This draws strength from the evolution of several social welfare laws in our country. Most of them emanated from rulings of the Supreme Court which were gradually incorporated into a statute by the legislature. The basic idea has been to provide a foolproof legislative measure to the beneficiaries so as to enable them to effectively claim their legal rights and entitlements before a proper forum. The Supreme Court’s order followed by legislative action complete the exercise of providing teeth to the legal principle. Failing which, there are chances that a judicially crafted legal right may go unprotected.

The Union Government has come up with a proposed law and attempted to give teeth to the legal position determined by the Supreme Court. Leaving the violators of triple-talaq judgment to merely face civil contempt proceedings would have amounted to watering down the verdict. A strong law, which could deter Muslim men from exhibiting their so-called control in dissolving the marriage instantly, is therefore an absolute necessity. Unfortunately, some legal scholars want triple-talaq to remain a civil contempt of the Supreme Court’s judgment.

From a social perspective, it seems like a conspiracy to protect the patriarchal control of Muslim men on the governance of marital relationships. This is because the law criminalising triple-talaq will have far reaching implications. It will have a snowball effect and would lead to an emancipation of Muslim women in many ways. Quite understandably the elite class Muslim men, comprising of the educated and some of them well versed in Constitutional law, are opposing the triple-talaq Bill.

The journey of the triple-talaq case wasn’t easy in the Supreme Court. And now the legislative action has once again resurrected the battle which was concluded in the Chief Justice’s Court.

A first look at the Bill reflects that the purpose of the law and intention of the legislature is far from being flawed. It is also well settled that the State has acted within its jurisdiction by tabling this Bill in Parliament. However, a plain reading of the proposed Bill indicates that if it were to pass in its present form, rights of Muslims would have actually been caught between legal contradictions.

This is because Section 3 of the proposed Muslim Women (Protection of Rights on Marriage) Bill, 2017 titled as ‘Declaration of Talaq to be Void and Illegal’, provides that ‘talaq-e-biddat’ shall be void and illegal by virtue of the proposed law. Then, Section 5 provides for subsistence allowance for the victim of triple talaq and her dependent children. Finally, Section 6 of this Bill further provides for the custody rights of minor children to the victim of triple talaq. These provisions are self contradictory and defeat the purpose.

When the proposed law declares triple-talaq to be void and illegal, the question of providing relief of subsistence and child custody to the affected Muslim woman does not arise. Such remedies are integral only to the divorce proceedings. In contrast, the present Bill primarily does not deal with dissolution of the marriage. In that sense alone, it is a case of legal excess but certainly not in criminalising the sinful and illegal act of pronouncing triple-talaq, in conformity with the ruling of the Supreme Court.

On hindsight, the law shouldn’t have been passed even in the Lok Sabha without rectification of this apparent legal error. Imagine the legal absurdity it would have led to. If the draft of the Bill were to pass in its existing form, firstly, a Muslim woman victim of triple-talaq in future would remain married in the eyes of law. Secondly, at the same time, she would be conferred all benefits like those of a separated wife by the competent court, much similar to what happens in the divorce proceedings. Resultantly, a victim of triple-talaq would be legally married but socially divorced for all practical purposes. Children born out of such wedlock may have to undergo a greater mental trauma than in ordinary divorce proceedings for the confused marital status of their parents. This is a legislative absurdity and needs to be cured before its conversion into an actual law.

Since the winter session of the Parliament couldn’t ensure enactment of this Bill, the Government may now perhaps consider an Ordinance route to legalise the criminalisation of triple-talaq. Even then clearing the defects in the draft of the Bill should not be ignored. Only then will the law fulfil its promise and act as a true deterrent against the pronouncement of tripe-talaq infringing upon the dignity of Muslim women.

The writer is Assistant Professor of Law, National Law University of Odisha and is presently serving as Assistant Registrar (Research), Supreme Court of India.