Ascribing criminal nature to any matrimonial offence has always remained a contentious issue. With the Supreme Court giving a landmark judgment declaring the practice of triple talaq as unconstitutional, the course to be taken related to its punishment has come under the scanner. In this article, the writer seeks to delve upon the implications that the current Bill may have on large sections of the society, adversely affecting their rightful interests.
Despite being the nation with the 3rd largest Muslim population in the world, unlike most Muslim-majority countries, India has been slow to ban triple talaq. The controversy around triple talaq stems from how it is practiced in modern-day societies. According to Islamic belief, it should be a deliberate and thoughtful practice, carried out over the course of several weeks and cannot be effectuated by an instantaneous pronouncement. Now, with the recent SC judgment, India has joined the list of several other countries like Pakistan, Indonesia, Bangladesh, etc. where triple talaq is considered un-Islamic and has been outlawed for years.
Since the beginning of the issue, scholars have suggested that rather than criminalization, the legislature should have adopted the path of including it as an act of infliction of domestic violence under the ambit of the Domestic Violence Act, 2005 wherein it could have been categorized as verbal and emotional abuse, covered under S.3 of Act. This would provide a greater number of avenues to the women folk to seek resort to against the injustice inflicted on them due to the arbitrarily callous attitude of their husbands. This would have opened up the path of multiple reliefs like protection against violence, right to residence in the marital home, maintenance, medical facility and compensation, etc.
These options are not available under the current Bill which only consists of a provision of 3years of jail imprisonment for the husband. Though the bill seeks to bring the Muslim women on equal footing by ensuring they get their due share of rights. It favours the women to get the custody of the children accompanied with the obligation on the husband to pay sustenance allowance to the wife and his children. However, the Bill suffers from some inherent flaws which arose firstly because at the time of its drafting it was not consulted with the Muslim women and the AIMPLB. In fact, the idea of this having a criminal character is in itself flawed since marriage under Islamic law is purely a civil contract between two adults. Hence, it must follow the procedure which is civil in nature.
The Bill is proving to be highly discriminatory against the Muslim men because in such cases, Muslim husband will be prosecuted even without his wife’s assent, for pronouncing triple talaq, whereas a Hindu man who rapes his wife while they are separated will not be prosecuted unless his estranged wife agrees. This creates dual standards for menfolk among different religions. On one hand the legislature claims that it is in consonance with the Supreme Court decision of declaring it unconstitutional, but on the other hand, the AIMPLB has voiced it concerns as it believes that this Bill goes contrary to the protection granted by the Constitution.
Apart from that, it takes away the additional layer of judicial oversight that was present in the case of offences related to marriages to prevent third parties from seeking redressal of wrongs committed between two private parties. By making the practice of triple talaq a cognizable offence under the Muslim Women Bill, it gives police officers the power to conduct an investigation without bringing it to the notice of the concerned magistrate forthwith, the moment a police officer receives a complaint, without waiting for the magistrate’s order. This has raised the fear of Muslim men becoming soft targets, who the police can arbitrarily throw in jail for three years based on anybody’s complaint. This gives the police an additional handle to incarcerate the Muslim men.
Moreover, there have been certain inconsistencies within the Bill itself, with the most glaring internal contradiction found in Sections 5 and 6 which discuss post-divorce issues such as a “subsistence allowance” for the woman upon whom instant talaq “is pronounced” and the “custody of her minor children” as if her marriage is dissolved by the mere pronouncement of talaq-e-biddat. The drafters of this Bill talk of post-divorce matters ignoring the fact that the pronouncement (instant talaq) has already been voided in S.3 and cannot result in a divorce.
Here, the government fails to address the issue of how are they supposed to provide for themselves and their children when their husbands are pushed into jail for three years. This would ultimately amount to indirect punishment to wronged women, whose cause this government claims to champion. Criminal prosecution of the husband will result in ending the marriage without securing the wife with a surety of her economic rights. It is believed that this Bill might end up suffering similar flaw as in case of S.498A which has turned out to be a futile piece of legislation.
Though this Bill seeks to guarantee a definite safeguard for the women, acting as a shield from the torturous deeds and whimsical behaviour of their husbands, it fails to take into consideration the interests of the poor, illiterate Muslim women. It imposes on them the burden of proof since in case of inadequate legal representation it would be difficult for them to prove in court that triple talaq was actually given. Alternatively, even once the husband is sent to prison, the women would be deprived of shelter and sustenance if the husband is unable to support in the absence of any constant source of income, when behind the bars.
Such criminal recourse ultimately closes all doors of possible reconciliation, even in as scenario where the couple may have been ready in the beginning to forego the animosity generated. Such penal policy can be considered as an interference in the personal matters as this takes away the opportunity from the errant husband to reconcile and thus may, in the longer run, have the effect of instilling a sense of insecurity and alienation among the minority Muslim community.
The landmark judgement of the Supreme Court declaring the practice of triple talaq as unconstitutional was indeed applauded. Considering the plight of Muslim women, this decision was a necessary requirement. However, the single-step criminalization of the same is something that needs legislative reconsideration in a manner that the primary objective of safeguarding the rights of Muslim women is not defeated.
Shayara Bano v Union of India, (2017) 9 SCC 1
Muslim Women Protection of Rights in Marriage Bill 2017 (Pending before Rajya Sabha).
S.498, Indian Penal Code, 1860
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