Volume 22 Issue 2, February 2018


There is no guarantee that adopting a needlessly punitive approach to law-making can encourage citizens to toe the line. To the contrary, such tactics can be fundamentally ineffective as they impose unnecessary restrictions.

The controversy in India surrounding the Muslim Women (Protection of Rights on Marriage) Bill, 2017 serves as a glaring testament of this belief. Months after the Indian Supreme Court issued its judgment on the constitutional validity of the triple talaq (or instant divorce) in August 2017, almost 100 cases of this nature surfaced in the public domain. As a result, the BJP felt the need to legislate on the matter. On December 28, 2017, the Lok Sabha passed the 2017 bill whereby instant triple talaq was declared illegal and void. Under this bill, the mere utterance of these dreaded three words that often draw Muslim women into a dark abyss would suffice to award a three-year prison term to their husbands. Legal experts have deduced that this is a brazen attempt to convert a civil wrong into a criminal offence.

Skeptics believe that while the 2017 bill has introduced a cluster of provisions that protect Muslim women from exploitation, it erodes the civil character of the laws on marriage.

Although India is a secular nation, the significance of Muslim personal laws has never been undermined as the state has always maintained an equidistant approach in this regard. However, the proposed legislation has done little to dismantle the state’s trust in the system of personal laws as the triple talaq has remained a subject of controversy since times immemorial. Instead, it has reduced the minimum standards that are required to take punitive action against people. The quantum of punishment for triple talaq also imposes an unnecessary burden that defies legal justification. In addition to the jail term, the bill proposed that a hefty fine should be imposed on a Muslim woman’s husband. While this is an attempt to deter people from using triple talaq to dissolve their marriages, it is unlikely to have the desired effect.

Asaduddin Owaisi, the president of the All-India Majlis-e-Ittehadul-Muslimeen, wrote a letter to India’s union law minister and trenchantly critiqued the need for a new criminal provision on triple talaq. Owaisi is of the view that cases of instant divorce under Muslim personal law already fall within the purview of Section 498A of the Indian Penal Code or provisions of the Protection of Women from Domestic Violence Act, 2005. These provisions allow husbands to be prosecuted for inflicting physical or mental cruelty or resorting to emotional and economic abuse.

Interestingly, the necessity for a specific law on triple talaq has drawn a mixed response. In the Supreme Court’s judgment of August 2017, the minority opinion of Chief Justice J.S. Khehar and Justice Abdul Nazeer suggests that triple talaq is a valid method of dissolving a marriage under Muslim law. According to these judges, the right to follow personal law is a fundamental aspect of freedom of religion. However, they have also maintained that parliament has the unquestionable authority to legislate on the matter. Meanwhile, the majority view declared that the practice of triple talaq was unconstitutional and, therefore, cannot dissolve a marriage. But the judgment does not state at any point that triple talaq be criminally punished.

It must be borne in mind that cases of triple talaq are often rare and have drawn the ire of Muslims across the world. It appears that the Modi government has adhered to the views adopted by a conservative set of ulema on the matter when it decided to declare triple talaq a penal offence.

There is a string of questions that legal experts have raised over the nature of this offence. At this stage, it remains largely unclear if the triple talaq will be billed as a strict liability offence that does not require any guilty intention. As a consequence, the law needs to adopt a cogent position on whether it wants to punish people for words that are uttered through an angry outburst or a momentary lapse of reason. If it is castigating people on these grounds, the law is defying the presumption of innocence.

Moreover, the burden of proof in most criminal cases falls on the prosecution. This raises evidential concerns as the wife will need to prove triple talaq. Most women may be reluctant to file a criminal case against their husbands as it would give the latter the opportunity to divorce them during a period of three months. Overall, it seems as though the new law seeks to tarnish the institutions rather than protecting the rights of women.

More often than not, triple talaq is prevalent in the lowest strata of Muslim society. If we take punitive action against men from these socio-economic classes, it might further weaken the position of women as their husbands will be unable to provide them maintenance. In addition, the punishments prescribed under the 2017 bill are arbitrary and do not adhere to the punitive schemes set out in the Indian Penal Code.

In a criminal justice system that is slow and ineffective, the new bill might not be of much public utility. More importantly, the mere existence of legislation cannot guarantee an end to a social problem if it fails to permeate every sphere of social life. It is, therefore, essential to consider triple talaq as a civil wrong to avoid unnecessary liabilities and chaos in the social sphere.

The writer is a journalist and author.


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