Is Criminalizing Triple Talaq Really A Good Idea

Is Criminalizing Triple Talaq Really A Good Idea?

5 min

There’s this interesting word that has gotten excessively popular in the recent times. It all began with demonetization. While everyone was busy critiquing the gargantuan step by NDA Government, there were people who were busy advertising the party’s, wait for it, *INTENT*. Since then, we have become obsessed with this word. From BJP advertising its INTENT behind demonetization to Akash Chopra questioning Dhoni’s in the world cup, the word has become exceptionally popular. If it is indeed such an important word, let us look at the recent Triple Talaq bill passed by the Parliament Houses through the prism of INTENT. Especially since the Union Minister Ravi Shankar Prasad has asked us NOT to look at it through a political prism. *wink*

To begin with, let us understand what exactly “Triple Talaq Bill” stands for!

The Triple Talaq Bill or The Muslim Women (Protection of Rights on Marriage) Bill makes declaration of instant divorce (talaq-e-biddat) in spoken, written or any electronic chat illegal. In fact, the bill has made it a cognizable offence that gives a police officer powers to arrest the offender without requiring a warrant.

A Muslim man pronouncing instant triple talaq attracts a jail term of three years under the triple talaq bill. The accused under the triple talaq bill is entitled to bail, which can be granted by a magistrate only after the said magistrate has heard the aggrieved woman.

Also, a woman divorced through talaq-e-biddat is entitled to demand maintenance for her and her dependent children under the triple talaq bill. (But wait, isn’t the husband in jail?)

And Cognizable Offense? What’s that?

Generally, these are the offences of serious nature like murder, kidnapping, offences of waging or attempting to wage war, abetting the waging of war against the government of India, and rioting etc.

Yeah that doesn’t make any sense but don’t worry. It is not some draconian law after all! (Or is it?) To check misuse of cognizable nature of the offence, the triple talaq bill makes an arrest possible ONLY if the complaint is filed by the aggrieved woman or any of her relation by blood or marriage. (There is no provision for a relative to seek the consent of an aggrieved woman before filing a complaint. Thus, in an attempt to empower the wife, the law actually leaves her susceptible to her relative’s wish.)

Think about the information you just consumed for 30 seconds and then read on!

The prism of Intent emits a rainbow of deception

The government has been obsessively advertising their GODLY intent with every step they have taken. With this Bill too, as per the government, the advertised intent is to ensure gender equality and justice. It is to give Muslim women a way out of the historic oppression they have been subjected to. The intent, according to them, has nothing to do with politics. Okay. But how much of that is true?

First of all, The Supreme Court in Shayara Bano’s case held that the practice of ‘Talaq-e-biddat’ or ‘Triple Talaq’ is unconstitutional. A reading of the judgment clearly indicates that mere pronouncing of triple talaq does not dissolve the marriage and there is no legal implication on pronouncing talaq. So, why an act that has no legal consequences been made a criminal, cognizable and non-bailable offense? This is clearly needless and arbitrary. It only makes sense when you think of it as a politically motivated step. The NDA has obviously won many political points with the passing of this bill, but the Muslim women are far from winners here.

Moreover, the Bill has scope for both 3 years jail term and the liability to pay maintenance.  That’s a contradiction yet to be solved, especially when “Triple talaq” is largely prevalent amongst the lower strata of Muslim society who earn their livelihood by earning daily wages.

The Bill conveniently ignores two of the most important objectives of an ideal Bill to protect abandoned Muslim women- reconciliation and maintenance. While the Bill lays down scope and steps for both, the criminalization aspect of it makes everything contradictory.

So there shouldn’t be a law at all?

We are all against Triple Talaq and thus, the Supreme Court judgment pronouncing it unconstitutional was met with huge relief and appreciation. But, the judgment itself wasn’t enough. A law related to Triple Talaq was definitely required in order to safeguard the rights of Muslim women and protect them in case of abandonment. The issues like custody, maintenance, reconciliation etc needed to be addressed through a well-written law.

But, here’s the catch- Muslim marriage is a civil contract between two adult persons. Hence, the procedures to be followed on its breakdown should have also been of civil nature. A CIVIL LAW could have allowed the issues of economic and social security of women to take the centre stage. Instead, by drafting a criminal legislation, the law has now become all about the man and his *crime*.  In fact, a penal provision makes Muslim women more vulnerable to violence from their matrimonial household.

Moreover, the bill has been drafted in such a haphazard and absurd manner that there is no mental element prescribed expressly or by implication. Thus, by deemed interpretation, the crime would include even those pronouncements which are made without the intention of divorcing the wife. Most of the “Triple Talaq” instances happen out of extreme rage and anger wherein the husband is not seriously considering a divorce with his partner.

Right now, the provisions within the bill are not only contradictory but also counterproductive. In order to meet the primary objectives of women safety and empowerment and to prevent a misuse of the bill, certain safeguards and amendments need to be incorporated in the Bill, the absence of which would make the procedure under the Bill unfair, unreasonable, and unserviceable.

Kaushal Piruka
I write, because I can't dance.