Updated: Sep 16
Mopuri Saaveri Reddy(Research Intern)
Marriage under the Muslim Law is a contract between two individuals, with consideration. Since time immemorial, gender equality was a far-fetched concept under Muslim Law. An advocacy of marriage as an outlet for men to fulfil their personal needs, polygamy was highly encouraged while polyandry was considered a sin by the religion. From the inception of marriage as a contract, women under Muslim Law were considered as a property, where, the man provided dowry to the girl’s father and married her. Marriage under the Muslim personal law (sharia law) was called Nikah and was performed differently under different sects of the religious community. The two major sects, the Sunni sect and the Shia sect had different pre-requisites that were to be fulfilled for a marriage between two individuals to be considered valid.
Just like the concept of marriage under the Muslim law favours men, divorce also has been advantageous to men. Multiple modes of divorce have been made available to men; Talaq-ul-Sunnat – Talaq Ahsan and Talaq Hasan, Talaq -ul-Biddat, while women are allowed only limited ways to be provided with divorce. Even these methods require the process of permission and delegation of authority by the husband. The personal law that governs divorce mechanisms for Muslims has put the husbands on a higher pedestal than women, thereby causing gender inequality.
In India, Talaq-ul-Biddat has been an approved form of divorce that men are allowed to use in the instances they want to separate from their wives. It is an instant divorce whereby the husband can divorce his wife by pronouncing the word “Talaq” three times and at such moment, it is not necessary for the presence of the wife or the requirement of providing any valid reason.
For long, the Triple Talaq has been a source of severe oppression and injustice for Muslim women. This method allows for unilateral breakdown of marriage at the whim of the husband. To provide for gender equality, the Supreme Court laid down Triple Talaq as invalid in the case of Shayara Bano v. Union of India. The court explained that this practice does not dissolve the marriage. The Parliament later formulated an Act called the Muslim Women (Protection of Rights on Marriage) Act, 2019, which declared the practice as illegal and void. Anybody who practices this method shall be detained under this law, making it a cognizable, non-bailable offence with a fine and imprisonment up to 3 years.
The major question that arises with respect to the criminalization of Triple Talaq, is that whether there is an infringement of the right to privacy with the implementation of the Act whose objective is to provide gender justice.
Is it okay to criminalize an act of civil nature and infringe on the rights of the individual, if the major objective is to achieve gender justice?
In the case of Justice K.S. Puttaswamy (Retd.) v. Union of India, the court held that a violation of the fundamental right to life and personal under Article 21 could only be justified if it satisfies a three-fold requirement, which applies to all restraints on privacy:
1. The existence of a law to justify an encroachment on a right with due procedure of law.
2. A legitimate objective to ensure that the law is not arbitrary.
3. The doctrine of proportionality is fulfilled in the process of achieving the aim of the legislation – in this instance: GENDER JUSTICE.
The first condition has been fulfilled with the establishment of the Muslim Women (Protection of Rights on Marriage) Act, 2019. A legislation clarifies that there is an existence of a law which justifies that encroachment on a right, with the due procedure of law.
The question that is required to be answered in this context is whether there exists arbitrariness in pursuit for the objective of the Law. In the process of making the law gender-neutral, the parliament has criminalized an act of civil nature. For an act to be considered a crime, it is necessary that the two elements of mens rea (guilty mind) and actus reus (physical act) are satisfied. After the establishment of the legislation by the Parliament, the pronouncing of the Triple Talaq by the husband does not dissolve the marriage and is indeed valid. In this context, there exists a guilty mind to divorce but no act has taken place. Criminalizing an act, without the fulfilment of its principles is deemed arbitrary.
Another aspect that is necessary to be taken into consideration is the intent of the Legislature in bringing upon this legislation. While the primary goal is to protect the rights of married Muslim women, the underlying purpose of the judiciary and the Legislature in criminalizing the Act is to protect the sacred covenant that exists, that is, marriage. With the criminalization of the act, there may be protection of rights, but it may result in the breakdown of marriage. Once the husband pronounces the words, the wife now has the opportunity to approach the nearest police station and lodge an FIR against her husband. When convicted, the husband might face a period of 3 years of jail time and a fine. Once returned, the possibility of reconciliation reduces. This results in mass separation of couples due to irretrievable breakdown of marriages.
Marriage is a contract under Muslim Law, and therefore, there exist civil remedies to deal with divorces than resorting to criminalization. Criminalizing the Act is a more expensive affair as compared to its civil counterparts.
The above reasons are proof enough that arbitrariness is manifested, and there is a lack of reasonableness in the criminalization of the practice, and therefore do not satisfy the second condition.
The doctrine of proportionality states that the punishment or the method sought to achieve a certain objective should be proportionate to each other and should not be excessive in nature, resulting in the infringement of ones rights. This principle of natural justice should always be ensured in the process of establishment of a law.
The 2019 Act allows for the state to detain and imprison the husband for up to 3 years and impose a fine if he practices the act of Triple Talaq.
The mere proclamation of the word Talaq three times can be considered as abuse under The Protection of Women from Domestic Violence Act, 2005. Under Section 31 of the Act, when the Protection officer breaches an order of the magistrate, he/she shall be punished with up to 1 year of imprisonment. Keeping the objectives of the DV Act, imprisonment of up to 3 years for the mere pronouncement of the words, is excessive in nature, especially when this particular act does not change the status quo. This is an infringement of the right of privacy of the individual.
Additionally, a period of 3 years of imprisonment is given to an accused person in the event of commission of the crime of heinous nature such as sedition. Equating both the acts by giving the same punishment is arbitrary and therefore, a violation of the Fundamental Right of Right to Life under Article 21 of the Indian Constitution.
Furthermore, the practice of Triple Talaq has been made a cognizable, non-bailable offence. In the event that a man declares Talaq to his wife, the wife has to power to approach the nearest police station and lodge an FIR. The police now have the power to arrest the individual without a warrant or any preliminary enquiry. This provision can lead to misuse further aggravating the rights of the husband, in the event that he is innocent.
The above reasons provide that the doctrine of proportionality has not been fulfilled, and therefore the violation of the Right to Privacy cannot be justified.
The Judiciary and the Parliament have declared the criminalization of Triple Talaq with their respective functions. However, it can be inferred that it is arbitrary and violative of the rights of the citizens. The Act should include cost-friendly mechanisms and should decriminalize the practice of Talaq – ul- Biddat. Victims should resort to civil remedies and seek compensation rather than criminal measures. The Act should be amended accordingly and reduce the punishment. While the aim of the Act and the precedent intend to achieve gender justice and provide protection to women’s rights, it causes the invasion of the Right to Privacy. Though it’s main objective is to act as a deterrent, criminalization of the practice does not achieve the prescribed goal. Certain changes should be made to the law in achieving its goal and provide justice to all equally.