Triple Talaq: Why Criminalise After Supreme Court has Declared it Illegal?

The Muslim community is voicing opposition to the Muslim Women (Protection of Rights on Marriage) Bill 2017, which has the provision of three year jail term to husbands who divorce their wives with the now illegal practice of instant triple talaq or Talaq-e-Biddat (uttering the word talaq thrice in one sitting). The controversial bill was tabled in the Lok Sabha on Thursday for discussion.

The predominant feeling across several informed members of the community was that there is no need to for the punitive law since the Supreme Court has already declared the practice “unconstitutional” and “arbitrary”. 

“In view of the different opinions recorded by a majority of 3:2, the practice of ‘talaq-e-biddat’ - instant triple talaq – is set aside,” said a five-judge Constitution Bench in an order on August 22 this year, in the matter of Shayara Bano Vs Union of India and others.

Members of Muslim community as also several women’s organisations like AIDWA and Bebaak Collective say there is no need for a law as triple talaq no more dissolves the marriage. So the question of punitive action of three years imprisonment is little understood. Nowhere in the 395 page judgement does the Supreme Court mention that triple talaq may be criminally punished.

Interestingly, the Congress – the principal opposition party – has reportedly decided to back the Bill introduced by the government. The grand old party will not bring any amendment to the proposed legislation.

But many of the Opposition parties are opposing the Bill saying that such a “draconian” law will be an “injustice” to the Muslim families in the country.

Legal luminaries too expressed unhappiness over the proposed legislation calling it a case of “over criminalisation”. “I don’t think that there is an evil after the Supreme Court has set aside the instant triple divorce. We should not be over using criminal law. It should be used as a last resort. The Bill is not really going to help Muslim women because a husband on return from jail, if he is sent behind bars, he will give the valid form of divorce. So, we are doing something which is not really going to help our women,” Dr Faizan Mustafa, vice chancellor of Hyderabad-based Nalsar University of Law, told Newsclick.

He partly blamed All India Muslim Personal Law Board (AIMPLB) for this fiasco adding that “they should have long back reached a consensus on the issue” to avoid this situation.

All India Muslim Majlis-e Mushawarat (AIMMM), an umbrella body of the Muslim bodies in the country, has termed the governent’s promptness to bring Bill on the issue as an attempt to hide its “failures”. “The move is nothing but an intrusion in the freedom of religion. The spirit of the proposed Bill is not only against the Constitution but the judgement of the Supreme Court on triple talaq. The Bill wishes to ban all forms of talaq,” said AIMMM President Navaid Hamid.

Asked why the AIMPLB failed to develop consensus on the matter, he said that the board “represents a particular school of thought (hanafi) that dominates in India and subcontinent and where instant triple talaq is valid”.

The AIMPLB on its part has defended itself accusing the government of perplexing Muslims with intervention in their personal laws.

“One fails to understand the hastened approach of the government on the issue despite the fact that the divorce rate among Muslims is lowest compared to other faith groups. According to Islam, triple talaq is irrevocable, but the Supreme Court considers it “ineffective”. If one goes by the SC argument, then there is no logic to punish a man who pronounces “ineffective” words, talaq in this case. The government plans three-year jail term for the one who pronounces triple talaq in one sitting. If so, then who will bear the expense of the divorced woman and his children? This is direct interference in shariah. The Muslims are perplexed due to the intervention in the personal laws,” the board said in a statement.

“This Bill is more of winning the lost victims – the Muslim women and losing the new victims – the Muslim men. This totally destroys the gender equality proposition of the Bill. This opens doors of clear division between men and women practising Islam,” said a young woman who is practicing in the Supreme Court to Newsclick, without wishing to be named.

She said the introduction of the said Bill is “not incorrect per se for saying that triple talaq should be banned, but making it a criminal offence will be a misuse”. The pronouncement of triple talaq is being made a non–bailable and cognisable offence making it equivalent to other serious offences.

The cardinal principle of criminal law is presumption of innocence and the burden is always on the prosecution, which has to prove the case beyond any shadow of doubt. “In this case, how will an oral talaq be proved by the wife? These are points of speculation. Now saying that pronouncement of triple talaq is a criminal offence, the moot question is: whether the pronouncement of triple talaq constitute a civil wrong or is similar to a crime which has three years imprisonment like Section 498A IPC,” she argued.

All India Majlis-e-Ittehadul Muslimeen President and Hyderabad MP Asaduddin Owaisi termed the bill as “draconian” even as he said that more than a law against instant triple talaq, a legislation against husbands abandoning their wives was required.

“My primary objection to introduction of this bill is twofold. One, Parliament lacks legislative competence because this Bill violates the Fundamental Rights. Two, this Bill lacks basic legal coherence and is inconsistent with existing legal framework,” he told Newsclick.

“Talaq-e-Biddat (instantaneous talaq) has already been called void and set aside by the Supreme Court. Now, with this legislation, the government is creating another law when there are already provisions under the domestic violence act and IPC sections. You cannot criminalise a similar action when laws are already there,” he said referring to existing provisions like 498 A IPC, Section 20, and 22 of the Domestic Violence Act, and the Women Protection of Divorce Act.

What is required, Owaisi said, is to make a law wherein lakhs of women who are abandoned by husbands and may not belong to the Muslim community, should be given justice. He also said that the bill contained a serious contradiction on maintenance for women because how can a jailed husband give maintenance allowance.

But there are people who are supporting the Bill as well. “People like us who have been divorced and those who are threatened with divorce would be benefited from this law. If a law is formed for triple talaq just like there is a law for domestic violence, we will get some relief,” said a Lucknow-based woman Huma Khayanat, who is a victim of triple divorce.

But contrary to all these reactions, there are few who consider that the court does not have jurisdiction on the issue of triple divorce.

“If two individuals decide to stay together as husband and wife or stay apart, it is their choice. Will the state force its citizen to live or get separated from his/her spouse? A court’s intervention is required only when a party feels infringement of his/her rights. In spirit our constitution advocates individual liberty, so the state should better stay away from brining in any legislation,” said Qamar Ashraf, a Delhi-based journalist who writes on minority issues.

“Legally speaking, the scrapping of instant triple talaq means you ask woman to compromise her dignity and wait for certain periods. An empowered woman would give a damn to the waiting period and walk away from the relation…. It is patriarchal view on women,” he concluded.