Criminalization of Triple Talaq- A boon or bane?

Author- Simran Upadhyaya

“TalaqTalaqTalaq” –the three horrendous words responsible for the destruction of the lives of millions of Muslim wives was outlawed by the Indian Government on the adoption of the Muslim Women (Protection of Rights on Marriage) Act, 2019.[i] This act outlaws the practice of Triple Talaq, also known as Talaq-e-biddat, which allowed Muslim men in India to divorce their wives, by one-time triple-pronouncement of the word Talaq.[ii] This ancient practice has been banned in 22 countries globally including Saudi Arabia, Egypt, Pakistan, Bangladesh, Malaysia.[iii] Therefore, this was much-needed legislation in a diverse country like India to provide Muslim women with an equal footing in access to justice to be at par with women of other religious sects.

Islam imbibes the practice of annulment of a marriage in various forms- Talaq-e- Ahsan, Talaq-e-Hasan and Talaq -e-biddat.[iv]The third form, because of its convenient nature, is the most common. A Muslim man can by just uttering a few words divorce his wife with immediate effect. He doesn’t need to provide a justification and his pronouncement stands irrevocable.[v]Moreover, the evil practice of Triple Talaq leaves the Muslim women helpless as they are deprived of alimony, dowry property and custody over children. A pioneer in the fight for the rights of Muslim women in India, Shah Bano,[vi]who had been divorced by her husband under Triple Talaq, was the first woman to approach the Indian courts for her right to maintenance under Section 125 of Code of Criminal Procedure, (‘the CrPC’) 1973.[vii] The verdict of Shah Bano case laid down that Section 125 of the CrPC[viii] is cut across religious barriers, and therefore, a Muslim man is obligated to maintain his divorced wife, generally seen as being unable to provide for herself until she is remarried.[ix] Moreover, Section 125 is not against the provisions of the personal laws of the Muslim and hence a Muslim woman is entitled to remedy under the same.[x] Subsequently, this case brought forward the legislation of Muslim Women (Protection of Rights on Divorce) Act 1986,[xi] which dealt with issues of divorces and maintenance of Muslim women.

Another landmark case, which changed the plight of Muslim women of India, was the ShayaraBano case[xii]. In 2016, ShayaraBano (who had been divorced by her husband by pronouncing Talaq thrice) approached the apex court to declare Triple Talaq as void ab initio and unconstitutional.[xiii] She argued that the practice violated the rights guaranteed under Articles 14[xiv], 15[xv] and 21[xvi] of the Constitution of India as it was “arbitrary and discriminatory”.[xvii] After a lengthy discussion, the majority of judges declared such form of divorce to be unconstitutional.[xviii] It laid down that Triple Talaq was not protected under Article 25[xix] of the Indian Constitution based on the essentiality test[xx]. In the judgement, Hon’ble Justice Nariman makes it clear that areligious practice can be considered essential when the tenets of the religion are based on that particular practice.[xxi] But Islam has many sects that do not follow Triple Talaq as a custom,[xxii] and it is also against the basic principles of the Holy Quran.[xxiii]Above all, Triple Talaq is not an indispensable religious practice of the Muslims, which needed to be protected under Article 25.[xxiv]Furthermore, the court declared the practice to be arbitrary since the marital tie was broken according to the wishes of the husband without providing any room for reconciliation, which violated Article 14 of the Indian Constitution.[xxv] Hence the Court struck down Triple Talaq and declared it to be void.[xxvi]This judgement paved way for drafting the Muslim Muslim Women (Protection of rights on Marriage) Bill 2017,[xxvii] which was finally passed by both the houses of the Parliament as the Muslim Women (Protection of rights on Marriage) Act, 2019.[xxviii]This act is like a torchbearer for the Muslim women who now can come together to work for their self- empowerment,and safeguard their fundamental rights against gender-based discrimination.

The Muslim Women (Protection of Rights on Marriage) Act, 2019 declares Talaq to be void and illegal.[xxix]The Act provides for three years of imprisonment along with a fine for any Muslim man who divorces his wife through Triple Talaq.[xxx] It also stipulates that a divorced Muslim woman has the right to receive subsistence allowance from her husband[xxxi] and has the right to custody of her minor child.[xxxii] The bill makes the offence cognizable but the right of registration of the complaint lies with the woman or any person related to her by blood or marriage.[xxxiii] Moreover, the bill declares the offence to be non-bailable unless the wife assures in the court of law that bail should be granted to him.[xxxiv] Such legislation, which treats Muslim women as equals in the society, was welcomed with a huge celebration in the country. This legal sanction gives strength to the women who can now fight their way through the malpractices of Triple Talaq. According to the Government, the bill had to be introduced because the Supreme Court’s verdict in ShayaraBano case was not a deterrence enough to stop the menace of Triple Talaq,as 473 cases have been reported since the judgment[xxxv]. The only way to stop this was by declaring it as an offence in the bill.[xxxvi]

However, the Act has certain loopholes in it and fails to address certain aspects. First of all, the ShayaraBano case declares Triple Talaq to be void which technically means that pronouncing Talaq will not lead to an instantaneous and irrevocable divorce and the words will have no effect on the marriage- how can one be punished for a forbidden act, which has ceased to exist.[xxxvii]Second of all, if Triple Talaq is void, and marriage continues to exist, then a woman cannot have grounds for claiming alimony and children’s custody.[xxxviii] Thirdly, if under the law the husband is sent to jail for three years, he cannot provide his wife with subsistence allowance.[xxxix] Fourthly, if the husband is imprisoned then the there is no means of reconciliation between the spouses to work out their marriage, which is not in concurrence with the actual recognized form of Talaq-A-Ahsan that deems the period of reconciliation as necessary before the divorce[xl]. Lastly, marriage under Muhammadan law is a pious contract since it satisfies all the components of section 10[xli] of the Indian Contract Act[xlii]. This means that marriage is a civil matter but colouring it with the paints of criminality makes it disproportionate to criminal jurisprudence.[xliii] However if we look at the bigger picture the Act was much needed to serve as deterrence to all the Muslim husbands who were misusing the law in India.

As India is the homeland of various religious sects,Indian Constitution provides for secularity. Keeping in mind the spirit of the constitution, the legal system does not attempt to interfere with the personal laws of different communities. The Indian courts are very cautious before striking down traditional personal laws so that it does not go against the provision of Article 25. Nonetheless, in case of women from the Muslim community, which forms the second largest population in our country, they were being deprived of the opportunity of growth and equality, making it a situation of severe prejudice that goes against the morals of human beings. The Court had no choice but to place fundamental rights over personal law to do away with the ignoble practices for the betterment of the community and thus the Parliament brought forth the Muslim Women (Protection of Rights on Marriage) Act, 2019.

[The author is a 2nd Year student at NUJS, Kolkata]

[i]The Muslim Women (Protection of Rights on Marriage) Act, 2019. [ii] Times of India, Law Criminalizing Triple Talaq- A Momentous Occasion for Muslim Women in India, August 3, 2019 available at visited on September 15, 2019). [iii] BBC News, Triple Talaq: India criminalises Muslim ‘instant divorce’, July 30, 2019 available at visited on September 15, 2019). [iv]MohsinRaza&Hadiya Khan, Legislative attempt to criminalize Triple Talaq: A critical analysis of Shayra Bano’s Judgement, 262, 4 IJL. 2 (2018). [v]Id., 260. [vi]Mohd. Ahmed Khan v Shah Bano Begum &Ors, (1985) 2 Supreme Court Cases 556. [vii]The Code of Criminal Procedure, 1973, § 125. [viii] The Code of Criminal Procedure, 1973, § 125. [ix]Id. [x]Id. [xi]The Muslim Women (Protection of Rights on Divorce) Act, 1986. [xii]ShayaraBano v U.O.I&Ors, (2017) 9 Supreme Court Cases 1. [xiii]Id. [xiv]The Constitution of India, 1950, Article 14.“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. [xv]The Constitution of India, 1950, Article 15. “ The State shall not discriminate against any citizen on the grounds of religion, race, caste, sex or place of birth or any of them”. [xvi]The Constitution of India, 1950, Article 21. “No person shall be deprived of his life or personal liberty except according to procedure established by law”. [xvii] Danielle AyanaD’Aguilar, Shatranj Ki Baazi: Muslim Women’s Activism, The Patriarchy and Triple Talaq in Modi’s India, 60, Univeristy of Texas at Austin (2019). [xviii]ShayaraBano v U.O.I&Ors, (2017) 9 Supreme Court Cases 1. [xix]The Constitution of India, 1950, Article 25.“All persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality and health”. [xx]Raza& Khan, supra note 4, 262. [xxi]Id. [xxii]Id. [xxiii]ShayaraBano v U.O.I&Ors, (2017) 9 Supreme Court Cases 1. [xxiv]Id. [xxv]Id. [xxvi]Id. [xxvii] The Muslim Muslim Women( Protection of rights on Marriage) Bill 2017. [xxviii] The Muslim Women(Protection of rights on Marriage) Bill, 2019. [xxix] The Muslim Women(Protection of rights on Marriage) Bill, 2019, §3. [xxx] The Muslim Women(Protection of rights on Marriage) Bill, 2019, §4. [xxxi] The Muslim Women(Protection of rights on Marriage) Bill, 2019, §5. [xxxii] The Muslim Women(Protection of rights on Marriage) Bill, 2019, §6. [xxxiii]Supra note 2. [xxxiv]Id. [xxxv]The Wire, Why Criminalsing Triple Talaq is Unnecessary Overkill, August 1, 2019, available at visited on September 15, 2019). [xxxvi] The Hindu, Beyondtalaq: On Muslim Divorce Bill, August 1, 2019, available at visited on September 15, 2019). [xxxvii]Raza&Khan ,supra note 4, 263. [xxxviii]Id. [xxxix]Supra note 36. [xl]Supra note 2. [xli] The Indian Contract Act, 1872 §10 – “All agreements are contract if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void”. [xlii] The Indian Contract Act,1872. [xliii]Supra note 35.

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