According to the draft law, which would be applicable to the entire country except Jammu and Kashmir, giving instant talaq would attract a jail term of three years and a fine. It would be a non-bailable, cognisable offence.
The state of Jammu and Kashmir has its own laws in civil matters such as divorce and is governed (the only state in India) by the Muslim Personal Law, 2007, which had made Shariah as the basis for divorce and succession rights. The special law could throw a challenge in extending the Supreme Court verdict to Jammu and Kashmir, the only Muslim majority state of India, reports FirstPost.
During the PDP-Congress rule in 2007, former minister and National Conference leader Abdul Rahim Rather had moved a private members bill for the state to have its own law, which was passed unanimously in the state Assembly. As per the Jammu and Kashmir Muslim Personal Law Application Act, 2007, “The dissolution of marriage including talaq, ila, zihar (and) mubarat, the rule of decision in a case where the parties are Muslims shall be the Muslim Personal Law (Shariah).”
Muslims in Kashmir follow the means provided under Sharia to solemnise marriages. They don’t register marriages and the practice of instant triple talaq has not been an exception but rather the most prevalent means of divorce.
Rather said that the bill was passed with a voice vote in the state Legislative Assembly in 2007 before it was notified as a law. He said that even though former deputy chief minister Muzafar Hussain Beg had argued that “improvements” should be made in the law, it was passed in the House because National Conference held that “there was no scope for improvement in Shariah law”.
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Islamic scholar, Professor Hamid Naseem Rafiabadi, said that Muslims in Kashmir have been deciding on matters of divorce as per the practice laid out in the Quran. He said that the Supreme Court judgment has opened the possibilities for endless interference in the religious rights of Muslims, reports FirstPost.
Why the law
A government official told news agency PTI that the practice was found continuing despite the Supreme Court order prompting the Centre to introduce a law. Provisions of the Domestic Violence Act were found to be of little help in such cases even as the government and the Prime Minister’s Office were receiving complaints from women. As of now, even police are helpless as no action can be taken against the husband in the absence of punitive provisions in the law.
What the SC had said
On August 22, a five-judge constitution bench of the Supreme Court by 3:2 majority struck down triple talaq practice as unconstitutional. The top court ruling held the practice to be “violative of the fundamental right under Article 14 (equality before law) of the Constitution of India”.