CRIMINALISATION OF TRIPLE TALAQ: A CRITICAL ANALYSIS
Vanshika Gupta, II year of B.A., LL.B. from VSLLS, VIPS
Triple talaq has consistently been a wellspring of extreme injustice to the Muslim women primarily because of its instantaneous and irrevocable nature. This controversy gained more heat after the Muslim Women (Protection of Rights on Marriage) Act, 2019 was passed, which declared the practice as void and illegal and made it a cognizable punishable offence.
Triple talaq is one of the modes under the Muslim law through which a marriage is dissolved, pronounced by a declaration of the word “talaq” repeated three times at short intervals or even in immediate succession by the husband. The utmost requirement to constitute a valid talaq is that the words “talaq talaq talaq'' used must clearly indicate the intention of the husband to dissolve the marriage. If such repudiation was made during the tuhr of the wife and the husband had no sexual intercourse with her during that period, it becomes complete and irrevocable immediately.
The Muslim Women (Protection of Rights on Marriage) Act, which was passed after the much-praised judgement of Shayara Bano v. Union of India[i], declares the practice to be void and illegal. It also lays down the punishment for pronouncement of triple talaq by a husband, viz. imprisonment up to three years and fine. In this judgement, the Supreme Court struck down the practice of giving of instant triple-talaq by Muslim husband, ruling them as “arbitrary and violative of right to equality.” In essence, the Supreme court of India delegitimize the practice of pronouncing talaq-e-bidat through any form like electronic, physical or verbal. The Court held it not to be an ‘essential religious practice’ under Article 25 of the Constitution of India.
Even prior to the Shayara Bano judgment, several High Courts had adopted a critical approach towards the practice of Triple Talaq. In Jiauddin Ahmed v. Anwara Begum, the Gauhati High Court analysed the concept of talaq under Muslim law and concluded that it does not allow instantaneous and irrevocable triple talaq.[ii] The Court had also stated about the correct law of talaq as ordained by the Holy Quran, which is that it must be for a reasonable cause and be headed by efforts at reconciliation. This position was reiterated by the Court in Rukia Khatun v. Abdul Khalique Laskar.[iii]
A major debate has arisen after the passing of this act, which focuses on the nature and motive behind the criminalization of a divorce act, which itself has been declared void by the Hon’ble Supreme Court.
Firstly, since Muslim marriages are legally binding in nature, civil remedies are adequate to deal with any question emerging out of them. The use of state machinery to incarcerate an individual for a time of three years isn’t justified when the issue can be tended to through less expensive elective methods. Such methods may include civil remedies in the form of satisfactory remuneration and uniquely conceived systems like substitute question goal strategies. This plan of providing civil remedies instead of criminal approvals has been continued in different rules in pari materia including the Protection of Women from Domestic Violence Act, 2005 ('the DV Act') and the Code of Criminal Procedure in Section125[iv]
Secondly, punishment should be proportionate to the crime. It has been held that the penalty imposed must be commensurate with the gravity of the misconduct and any excessive and disproportionate penalty would be violative of Article 14. Thus, such an unreasonable and disproportionate penalty is bigoted and contravenes Article 14.
Thirdly, the maintenance clause of the Act ensures subsistence allowance to the women from her husband. Maintenance implies the quantity of cash required to continue living consistent with a person’s standing within the society, while subsistence allowance is that bare minimum amount required to satisfy the expenses of day-to-day living. However, in a case where the husband is sentenced to imprisonment, where will the allowance come from?
Fourthly, the Act provides that a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband. The first question which arises is about the necessity for a provision for custody of a kid when the wedding remains subsisting and no divorce has taken place. Additionally, making such a provision mandatory is unreasonable. No exceptions and no proper criteria to determine the custody of the children are given in the provision. There might be scenarios where the mother herself is not financially or mentally fit to take care of the child, or the child does not wish to live with the mother, etc.
The first part of the Act which declares the practice of triple talaq as void and illegal is in consonance with the ruling of the Supreme Court in Shayara Bano. However, the provisions which penalize the practice with a stringent punishment are likely to be counterproductive as they would discourage reporting of such incidents and diminish the chances of reconciliation. It is termed as fundamentally contradictory to the essence of the Supreme Court judgement, as well as to itself by stating that a person has not committed a crime, but will be liable for the same.
The maxim “Cessante ratione legis, cessat et ipsa lex” seems fit here, which suggests if the rationale for a law ceases to exist, the law ceases to exist too.
Additionally, the Court in Shayara Bano never suggested the criminalization of pronouncement of triple talaq. The state is likely to intrude into the private sphere of its citizens through criminal sanction for such practice.
[iii](1981) 1 GLR 375
[iv] Shrotriya, Eesha and Pachauri, Shantanu, Criminalisation of Triple Talaq: Dissecting the Constitutional and Socio-Legal Aspects (May 21, 2019). NLS Socio-Legal Review Forum, 2019, Available at SSRN: https://ssrn.com/abstract=3708184 or http://dx.doi.org/10.2139/ssrn.3708184