CRIMINALISATION OF TRIPLE TALAQ: DISSECTING THE CONSTITUTIONAL AND SOCIO-LEGAL ASPECTS
Spandana Reddy Bommu
Talaq-e-biddat has been an element of terrible discrimination and subjugation for women of the Muslim community. As a consequence of this tradition, a marriage can be unilaterally ended at the husband's discretion. Since the judiciary has found the practice inappropriate with specific caveats on multiple instances, the legislative tendency has shifted against it. The Indian Supreme court ruled in Shayara Bano vs. Union of India that this practice was unconstitutional. The "Muslim Women (Protection of Rights on Marriage) Bill, 2017" was introduced in Parliament, declaring the practice unconstitutional. The proposal also deems the practice a non-bailable and cognisable offence with a three-year prison sentence. This researcher examines the law extensively and find that criminalising domestic conduct would negatively affect the sacrament of marriage. Even though the Bill may outlaw triple talaq, it appears uncertain that it will adequately fulfil its goal of preserving married Muslim women's rights in the process. The researcher proposes an alternative approach that might attain Bill's goal while addressing its inadequacies.
KEYWORDS: Talaq-e-biddat; Muslim; Criminalisation; Women; Marriage.
Marriage according to Muslim law is both a sacred commitment and contract. It is a sanctified entity that has existed since the beginning as a deed of ibadat (worship) or piety. The right to divorce is a fundamental implication of the right to marry. As marriage is seen as holy, its dissolution is socially wrong. Talaq (separation by the husband at his will and without the interference of a court) was declared by Prophet Muhammad to be the most loathsome of all authorised practices before God.
The talaq-e-biddat, simultaneous and irreversible divorce ('triple talaq'), is one of the methods for dissolving a marriage in Muslim laws. It is uttered by repeating the word talaq three times in immediate proximity or even in the same breath. A legitimate talaq does not necessitate any unique terminology, except that the terms stated should unambiguously reflect the husband's decision to terminate the marriage. When the rejection was expressed at the time of the wife's tuhr (the period between menstruations), and the spouse had no intimacy with her at that period, it is definitive and irreversible.
Considering its immediate and irreversible character, triple talaq has traditionally been a subject of grave unfairness to Muslim women. After the Lower House enacted the "Muslim Women (Protection of Rights on Marriage) Bill, 2017 ('the Bill,')" proclaiming the practice void and rendering it a criminal offence, the debate heated up even more. The Bill, which recommended making the simple utterance of triple talaq a cognisable and non-bailable offence, was received with substantial resistance because it could be misused. The restriction of an individual's freedom by detaining him for making such an assertion enhances primary criminal and constitutional considerations. As a result, it's critical to think about these difficulties.
2.CRIMINALISATION OF TRIPLE TALAQ: DISSECTING THE CONSTITUTIONAL ASPECTS
When it pertains to divorce, the Indian legal system has a heterogeneous perspective, which means there are multiple e to get it within various marriage laws, contrary to the universal civil code found in other parts of the world. In India, divorce law at present is governed by six significant statutes. The Hindu Marriage Act (HMA) of 1955 governs Sikhs, Jains, Buddhists, and Hindus. In contrast, Muslims follow the Dissolution of Muslim Marriages Act (DMMA) of 1939, Parsis follow the Parsi Marriage and Divorce Act (PMDA) of 1936, and Christians follow the "Indian Divorce Act (IDA) of 1869. The Special Marriage Act (SMA) of 1956, the 5th enactment, serves all valid weddings that don't come under the ambit of the preceding Acts or those who intend to follow the SMA.
2.1 HISTORY OF TRIPLE TALAQ
In Shayara Bano vs. Union of India (Shayara Bano), the judiciary declared triple talaq to be a patently unreasonable practice for the first time. According to Article 25 of India's Constitution (the Constitution), this is not a 'fundamental religious practise. However, some High Courts have taken a skeptical view of said practise even before this decision. The Gauhati High Court examined the idea of talaq within Islamic jurisprudence. It determined that it does not allow for synchronous and irreversible triple talaq in Jiauddin Ahmed vs. Anwara Begum. The court reiterated that the correct doctrine of talaq, as given by the Holy Quran, would be that it would be for a legitimate purpose and therefore must be accompanied by reconciling measures. In Rukia Khatun vs. Abdul Khalique Laskar, the Council reaffirmed such viewpoint. The Kerala High Court ruled in Nazeer vs. Shemeema that "triple talaq in one utterance is not lawful according to Quranic mandate."
The dissenting perspective in Shayara Bano was that triple talaq is a viable type of divorce under Muslim law. Hence, the right to adopt personal law is essential for religious freedom. However, if Parliament so desires, it may pass Legislation on the subject. The Supreme Court's decision to strike down triple talaq did not appear to be a powerful countermeasure in reducing the multitude of such separation or divorce. To give substance to the Supreme Court's order, the state needed to take decisive action in the shape of appropriate Legislation. The House of People enacted the Bill, which declared the practice obsolete and made it a criminal offence. The proposal was subjected to a lot of backlashes. The Union Cabinet approved three revisions to the Bill to protect in response to this. The President endorsed the Ordinance during its time in the Rajya Sabha to combat the 'overwhelming urgency' and 'compelling imperative' of terminating the custom.
2.2 SECTION 125-128: CRIMINAL PROCEDURE CODE, 1973
The Criminal Procedure Code's structure is progressive, as it allows any woman, regardless of background or principles, to plead to the tribunal. Sections 125-128 of the Code of Criminal Procedure contain the notion of maintenance, which is binding. The spouse, children, and family members could all receive support within this provision. Sections 125 to 128 provide precise, thorough, and minor penalties for anyone who neglects or actively opposes their weak and vulnerable dependent.
An individual can protect his family under Section 125 of the Civil Procedure Code (when she cannot maintain herself). The tribunal determined in Bhuwan Mohan Singh vs. Meena & Ors that Section 125 was designed to relieve the emotional turmoil, misery, and economic difficulties of a woman who left her house, once more for interpretations asserted under the section because the court could then make appropriate improvements. She, as well as her kids, could be required to maintain when they're around her. Wealth creation doesn't often indicate that one is experiencing suffering and death. A woman does have the fundamental right to live in the same manner as she might if she lived in her husband's home.
A woman has the right to gain both temporary and permanent subsistence under Section 125 of the CrPC. Additionally, the word "wife," as set out in clause 125(1)(b), includes a divorced woman. Sunita Kachwaha vs. Anil Kachwaha, the Apex Court declared that a husband's upkeep should not be deprived because she has a source of income.
2.3 INTRODUCTION OF DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939.
In Islam, divorce by mutual consent is a relatively new concept. The jury is barred from venturing into the contexts of marital and family dissolution because of the breakdown hypothesis of separation. As much as possible, Islam's attitude was to prevent and avoid martial processes to a tribunal. The "Dissolution of Muslim Marriage Act of 1939" also specifies the number of other grounds within whereby a judge's ruling might cancel an Islamic woman's wedding. According to the Prophet Muhammad, the marital collapse was the weakest of all approved actions, and he advised his followers to abstain from it. The Messiah changed the pre-Islamic disintegration system to protect women from being victimised and offer them a status equal to that of men and social, cultural, and economic protection.
Muslim law has stayed relatively constant in comparison to Hindu law. India's Constitution was enacted seventy years ago, but a Muslim man has four women to date, and the ancient practice of polygamy remains in place. The Muslim wife was not given any liberty to terminate the marriage by old custom. Still, she was given limited powers within the "Dissolution of Muslim Marriage Act, 1939", fixed and negligible. Furthermore, most of these incentives were only available if the agreement had not yet been constituted.
2.4 ANALYSIS OF MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986
The Ordinance was controversially referred to as current regulations adopted in 1986 by India's legislature to protect the interests of Muslim women who were distanced by, or where attained divorce by, their respective spouses, and everything related to or corresponding to such separation. In the case of Mohd. Ahmad Khan V/S Shah Bano Begum, the Supreme Court clearly said that Triple Talaq could not deprive a divorced Muslim woman of her claim to maintenance if she cannot support herself or her children after her husband has disowned or divorced her. The Supreme Court's ruling in the Shah Bano case drew a lot of criticism at the time since it violated the laws of the "Quran" and "Islamic Laws/Islam."
Rajiv Gandhi's cabinet enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, to override the Shah Bano judgement. It was passed by the Congress government with a large majority, amending the Constitutional Jury's secular ruling. The primary objective of this legislation was to preserve the rights of divorced Muslim women and those who have divorced their husbands.
In this frame of reference, it's reasonable to acknowledge that the act mentioned earlier, MWA, was passed shortly after the Mohd. Ahmad Khan vs Shah Bano Begum decision established Muslim woman has the authority to be compensated by her spouse. Under Section 3 of the MWA, it is a compulsion for the husband to provide compensation to the wife even during the period of iddat. This clause was misinterpreted in the earlier times to signify that the man is only lawfully entitled to assist his wife "during" the iddat period. In Daniel Latiffi vs Union of India,the Apex court stated that the maintenance provided by the male individual at the time of iddat continues till duration followed by periods outlined. Furthermore, under the MWA, a divorcee who is incapable of sustaining herself after the iddat period may seek assistance from family or the State Wakf Board if she does not have any.
3. "CRIMINALISATION OF TRIPLE TALAQ: GENDER JUSTICE OR INVASION OF PRIVACY?"
The Bill aspires to establish gender equality, but criminalising the declaration of triple talaq raises the risk of privacy invasion. The Highest Court ruled in Justice K. S. Puttaswamy (Retd.) vs. Union of India that privacy is essential liberty under Article 21 of the Constitution's right to life and personal freedom. It was decided that a government intrusion will only be permitted if it meets three criteria: legitimacy, necessity, and proportional. Even before declaring triple talaq could be criminalised in India, three conditions must be completed. The first criterion is that legislation must be in place to legitimise a breach of privacy. The second is that the Legislation must be rational and not unjustifiable, and the third is it must be appropriate in the parameters of a viable state. The criteria of constitutionality are met because the criminalisation of the declaration of triple talaq is planned to be done by statute. The following are the other two considerations:
3.1 "REQUIREMENT OF A LEGITIMATE STATE AIM":
The desire for a legitimate governmental mission assures that the legal system is not manifestly arbitrarily applied. The essence and contents of the statute imposing the limitation should eventually fall within the appropriateness perimeter established by Article 14, which protects citizens from arbitrary action by the government. According to the Legislation, a Muslim husband's declaration of triple talaq onto his wife, whether verbal or written, in digital format or in some other method, is a severe violation. Due to the sheer following matters, this law fails miserably to meet the requirements of a valid governmental goal of reasonableness:
(i) Criminal consequences for a civil wrong:
It would indeed be incorrect to make the proclamation of triple talaq illegal. Unlawful conduct need not be characterised as a criminal offence in some circumstances.Jeremy Bentham, who's writing a substantial and credible article for comprehending criminal jurisprudence concepts, has enumerated such situations in his publication "An Introduction to the Principles of Morals and Legislation":
The criminalisation of triple talaq cannot be claimed to be without foundation. To be considered a crime, unlawful conduct must have some externally negative repercussions, known as actus reus (criminal act). Perhaps there is a link between the deliberate wrongdoing and the resulting damages. Triple talaq has lacked its legality and authority to break a Muslim marriage after the case of Shayara Bano. The mere denunciation of triple talaq without any other deed is insignificant because it wouldn't terminate the marriage and has no negative consequences for the wife or community. As a result, a seemingly insignificant action can be categorised as a federal felony.
Second, where it is ineffective, i.e., it cannot deter the harm. It is not justifiable if the penalty does not dissuade him from committing a crime. The husband's punishment for pronouncing triple talaq will exacerbate the marital strife and reduce rehabilitation possibilities. It would weaken the deterrent effect by discouraging the wife from disclosing subsequent instances.
Thirdly, criminalising the pronouncing of triple talaq might still serve to curb a minor behaviour. It has been noticed that accusing one spouse of the other increases marital dispute, resulting in relationship collapse. The goal of preserving the interests of the injured woman cannot be realised because locking up the husband would make reunification less likely. It will have the unintended consequence of allowing the provision mandating a penalty for such pronouncements to be abused. Similar requirements have indeed been misconstrued, such as "Section 498A of the Indian Penal Code ('the IPC') and the provisions of the Dowry Prohibition Act, 1961 ('the DP Act')". 
Finally, because Muslim marriages are contractual in structure, civil remedies are adequate to resolve any disputes. Criminal sanctions by the authorities will not be warranted. When a problem can be solved with less expensive alternatives, using the state apparatus to confine someone for three years isn't acceptable. The "Protection of Women from Domestic Violence Act of 2005 ('the DV Act') and Section 125 of the Code of Criminal Procedure" reflect this concept of offering civil remedies rather than criminal penalties.
As a result, the proclamation of triple talaq shouldn't ever be considered a criminal violation. Even the Hanafi school of Shariat law, which acknowledges this kind of talaq, believes it a sin and terrible theologically. Furthermore, it has never been deemed illegal by any court, including the Supreme Court. Even though the practice was declared illegal in Shayara Bano, the tribunal did not recommend becoming a criminal offence. The Judge ruled that the authorities should take a simple approach to criminalise offences since a more significant rationale is necessary when a violation is penalised by detention. It has also been decided that concluding the deterrent effect after only four months is indeed not adequate.
(ii) ABSENCE OF MENS REA:
The Bill prohibiting a Muslim husband from imposing triple talaq on his wife could be understood to encompass declarations uttered even without the motive of divorcing the wife. The standard pattern in criminal law is that an element of mens rea must accompany the accused's reprehensible conduct. According to Jeremy Bentham, dishonest behaviour perpetrated without mens rea should not even be deemed a felony act.However, there is a category of crimes called strict responsibility offences that do not require any mental component and comprise only prohibited acts or omissions. It is satisfactory to establish that the forbidden act was committed, and any defences of knowledge, omission or due care are ruled out.
The Act of pronouncing triple talaq doesn't fulfil the actus reus criteria, which is required to constitute a criminal offence. The following are the three types of strict liability offences: First, activities that are not truly criminal but appear to be so. Second, the menace to society, defamation, and contempt of court charges. Third, there are circumstances where, although the proceedings are criminal, it is a means of upholding a civil right. Whenever a verdict entails the potential of jail and punishment, strict liability under criminal law is unjustifiable. Violations of local laws and regulations, for example, usually result in minor penalties. Since a crime of triple talaq doesn't quite qualify under these parameters, designating it a crime punishable by up to three years in jail will be inappropriate. As a result, under Article 14 of the Constitution, the criminalisation of the simplified proclamation of triple talaq without an acceptable determining principle is arbitrary and absurd.
(iii) Requirement of proportionality:
The proportionality criterion establishes a sensible relationship between the goals and the methods used to attain them. It is a significant aspect of the provision contrary to arbitrary governmental action. It assures that the quality and nature of the infringement on the rights do not exceed the law's objective. Punishment ought to be proportionate to the seriousness committed. The notion of proportionality between crime and punishment is a desert premise that underpins every valid criminal conviction.
The declaration of triple talaq was declared unlawful and illegitimate by Shayara Bano and the Legislature through this Bill. The purpose was to preserve Muslim women 's rights, but categorising it as a criminal misdemeanour prosecutable by up to three years in custody would do catastrophic damage to the marital relationship. The methods used by the Bill ultimately jeopardise the very same objective it is seeking to accomplish. Violation of privacy by the government through prosecution cannot be allowed since the criminalisation of triple talaq does not meet the essential circumstances. Intervention by the authorities would indeed be permissible if it utilised civil measures to ensure the achievement of banning triple talaq since this would meet the requisite conditions.
4. "FREEDOM OF RELIGION AS A SOURCE OF CLAIMS TO EQUALITY AND PROBLEMS FOR EQUALITY"
4.1 EQUALITY BEFORE THE LAW:
The Republic of India's Constitution outlines the concept of equality under the law in Article 14. The notion wasn't of indigenous Indian descent, but American and British regulations significantly impacted. It's also based on the very last clause of Section I of the Fourteenth Amendment, which states that no government has the authority to deny anybody within its territory equality and non - discrimination.
In perhaps the most primitive sense, equality before the law implies that there should be no discrimination amongst equals. When all members of a specific group or organisation are treated equally under the law, there appears to be no denial of the underpinning right to constitutional safeguards. Furthermore, this does not imply that the identical rules are applied equally to all individuals in all instances.
The Indian Constitution prohibits the government from discrimination against a person strictly based on their religion, race, area, gender, nationality, or any other factor. Article 16 (1) mandates that nearly all inhabitants have an equal chance of labor and occupation or recruitment for any government-run organisation. Article 17 prohibits untouchability (a severe caste-based disability).
The Bombay Prohibition Act, which included critical constitutional provisions, was the focus of the litigation. In the case State of Bombay vs. Balsara. The provision protecting the defense force against their management has been challenged. The subjugation was made more difficult because it was discriminating, contradictory, and ludicrous. Even the Highest Court concluded the Legislation was appropriate. This was affirmed, and it was stated that army soldiers were just a different category, and thus turning them back wasn't even discriminatory.
4.2 "IMPLEMENTING SEX EQUALITY THROUGH LAW IN INDIA."
The paradox of gender equality was a sensitive subject throughout the writing of the Constitution. Both law ministers, B. R. Ambedkar and Nehru, have been outspoken about their desire to eliminate gender and caste inequity. This focus was taken into account when the Constitutional Provisions were drafted. In Indian culture, reservations and other affirmative discrimination measures for marginalised communities are widely supported ("dating back to the early 20th century"). In other words, the framers saw equalisation as the end of institutionalised supremacy and institutional racism based on gender and sexual orientation.
The Travancore Christian Act, which assures females only "one-fourth of their fathers' inheritance and donates a percentage of every daughter's wealth to the Christian religion", was deemed unconstitutional by the Supreme Court of India of Mary Roy v State of Kerala. The decision appeared confrontational (among other things, the change was applied retroactively to 1951, jeopardising several pre-existing estates), and Catholic priests criticised the above judgement.
Historically, the 73rd and 74th Amendments, which were previously challenged by various reformers, have granted "33 per cent of seats in panchayats, or local councils, that were formerly based on race". The 85th Amendment, which could introduce a similar reservation system on a nationwide basis, has received widespread support. Although many established parties claim to support the Amendments, they are not factored into the equation since caste-based organisations lack significant clout. In India, the 85th Amendment can be a critical component in establishing equality between the sexes.
The suggested Bill contains serious discrepancies that could be addressed by implementing the following alternative scheme:
The use of the term "triple talaq" should be deemed "void and prohibited." It would have no judicial implications for the husband and wife's relationship. On the wife's request, the court may order the spouse to pay her for the psychological trauma she has suffered. The magistrate has the authority to determine the amount of compensation payable and the timeline wherein it must be compensated. The mere proclamation of triple talaq would have no legal ramifications.
When the spouse disobeys the magistrate's direction and refuses to provide the compensation as stipulated, he shall face legal consequences of detention for a period of up to one year, as well as a fine. This is consistent with the structure outlined in the DV Act.
Although the simple proclamation of triple talaq has no binding effect, if the husband or other individual imposes or tries to implement it, they shall be punished with imprisonment for a period of up to one year, as well as a fine.
The husband ought not to be accountable for any of the penalties mentioned earlier if he ends up paying the required compensation and does not pursue or endeavor to implement the decree.
It is imperative to emphasise that as long as polygamy is prevalent, the husband do have the opportunity of getting married again, even though his declaration has no legal standing. It'd undermine the goal of preserving Muslim women's rights ineffectual. To avert this predicament, it is advised that the law include civil restrictions against the practice of polygamy.
The DV Act's description of "domestic violence" should explicitly incorporate the declaration of triple talaq. It really would establish that, in addition to the remedies in the structure as mentioned earlier, the wife might seek comprehensive remedies from the courts underneath the stated Act.
The Indian judiciary has taken a cautious stance to triple talaq—however, this method needs to be included in the spirit of the laws as soon as possible. The "Muslim Women (Protection of Marriage Rights) Bill, 2017" is positive; the policy seeks to provide equality of opportunity for Muslim women and eradicate the oppression they face due to this conduct. It appears exceedingly improbable that it will succeed in fulfilling its dual goals of prohibiting the custom of triple talaq and protecting Muslim women 's liberties. The Bill, which determines triple talaq to be unlawful and unconstitutional, aligns with the Judge's Ruling in Shayara Bano. The regulations that criminalise the practice with harsh penalties, on the other hand, are probable to be contradictory since they would deter people from reporting these instances and reduce the possibilities of settlement. The state is likely to meddle in individuals' personal affairs by enforcing criminal penalties for such actions.
As a result, the proposed framework should be considered to meet Bill's two-fold goal. To ensure the Bill is more functional, it should be discussed with the Muslim community and constitutional experts before it is enacted. Once the Legislation gets passed, it is essential to be informed about Bill's effects to meet its objectives.
[The author is a second year BA. LL.B. (Hons.) student at Symbiosis Law School, Hyderabad]
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