Sraboni Reang (Research Intern)
Many religion recognises divorce between married couple in one form or the other, but Islam is perhaps the first to enshrine termination of marriage by way of divorce into its customary laws (Quran). Divorce was regarded by the prophet to be the most hateful before the Almighty God of all permitted things. And towards the end of his life, he practically forbade its exercise by men without the intervention of an arbiter or judge. Muslim marriage or nikah is regarded to be a contract and for this reason like every other valid contract is has provided for its termination. Although in popular views divorce is considered socially unacceptable as marriage is a sacred covenant between two souls and despise the usage of talaq.
Islam has many modes of dissolution of marriage and talaq-ul-biddat popularly known as triple talaq is the disapproved mode of talaq where the divorce is pronounced by the husband in three pronouncements made during a single tuhr (period between menstruation) either in one sentence e.g. “I divorce thee thrice” or in separate sentences “I divorce thee, I divorce thee, I divorce thee”. A single pronouncement can also be made during a single tuhr which will irrevocably dissolve the marriage if the husband had no intercourse with her during that period. There is no requirement of special expressions to constitute a valid talaq except that the words used must clearly indicate the intention of the husband to dissolve the marriage.
Muslim women have faced this severe injustice of triple talaq for time immemorial because of its immediate and irreversible nature as this practice by Muslim men is done for their own comfort and pleasure at their own discretion. It would be wrong to regard all Muslim man to be in favour of this practice for there are many who are against this atrocious practice. Although the Muslim Women (Protection of Rights on Marriage) Bill, 2017 has gained much controversy as it declared the practice of triple talaq void and also a punishable offence. As the Bill proposed that the mere pronouncement of triple talaq would be a cognizable and non-bailable offence, it was met with widespread opposition on the ground that there would be a possibility of its misuse. These provisions attract the criminal as well as constitutional law as to whether the mere pronouncement is a reason solid enough to criminalise a person and thus this paper breaks down the aspects on which the provisions renders the Bill an intrusion to privacy, with a brief background and an alternative suggestion to the scheme.
The Muslim women (protection of rights on marriage) Bill has its roots in Shayara Bano v. Union of India popularly known as Shayara Bano case in 2017 where the Hon’ble Supreme Court declared the practice of triple talaq as unconstitutional. Prior to this declaration several High Courts had given a similar verdict and critically approached the arbitrary use of this practice. In Sarabhai v. Rabia Bai, it was said that talaq-ul-biddat or triple talaq is theologically improper.
Although the Islamic law has given provisions for divorce it doesn’t encourage the instantaneous and irrevocable practice of triple talaq. According to the Holy Quran, Triple divorce is a recognised but disapproved form of divorce and is considered by the Islamic Jurists as an innovation within the fold of Shariat. It commands neither the sanction of the Holy Quran nor the approval of the holy prophet. In Fazlur Rahman v. Aisha, the validity of this divorce was questioned and was argued that this type of divorce is against the Quranic Law and the court is not bound to give effect to the rule and it also opposed to a tradition of the prophet.
A minor section of the community opposed to the ruling in Shayara Bano as according to them it was a valid form of divorce and they have the right to follow their personal law as an integral part of freedom of religion granted by the constitution. Although the Supreme Court had set aside triple talaq it was felt that it has not worked as an effective deterrent in bringing down the number of such divorces. There was an urgent need for state action in the form of suitable legislation, to give an effect to the order of the Supreme Court. The Lok Sabha then passed the Bill, declared the practice as void and a punishable offence. To which subsequently was met by a widespread opposition. To resolve this, the Union Cabinet approved three amendments to the Bill to provide safeguards. During its pendency in the Rajyasabha, the President approved the Ordinance to overcome “overpowering urgency” and “compelling necessity” to discontinue the practice.
III. CRIMINALISATION OF TRIPLE TALAQ: does it achieve its objectives?
The objectives of the Bill is to achieve gender justice and to do so it adopted the means of criminalising any Muslim husband who pronounces triple talaq and such adoption renders the Bill an invasion of privacy as the practice of triple talaq comes under the purview of personal law. In Justice K. S. Puttaswamy (Retd.) v. Union of India, the Hon’ble Supreme Court held that privacy is a fundamental right under the right to life and personal liberty enshrined in Article 21 of the Constitution. It was held that an invasion of privacy by the state can only be justified if such invasion satisfies a three-fold requirement which applies to all restraints on privacy. First, there must be a legal requirement; which is to have a law in existence to justify an encroachment on privacy as no person can be deprived of his life and personal liberty except in accordance with law. Secondly, the requirement of a need, in terms of a legitimate state aim to ensure that the law is reasonable and not arbitrary. Thirdly, the requirement of proportionality which postulates that the means adopted are proportional to the object sought to be fulfilled. The fulfilment of these test will make the Bill’s invasion of privacy legitimate and its objectives shall be achieved, as the criminalisation of the pronouncement of triple talaq is proposed to be done through legislation, the requirement of legality is satisfied.
Criminalising the practice is not the solution.
There now arises the question as to whether the other two requirements are met? requirement of a legitimate state aim and requirement of proportionality. The straightforward answer to this is that it does not, mainly because the pursuit of a legitimate state aim ensures that the law does not suffer from manifest arbitrariness and criminalising what is otherwise a civil wrong and should be given civil punishment fails to meet the requirements of legitimate state aim of reasonableness. Mere pronouncement of triple talaq isn’t a criminal act neither it is an act done with mens rea, as no mental element has been prescribed expressly or by implication, it may be interpreted to include even those pronouncements which are made without the intention of divorcing the wife. According to Jeremy Bentham, a wrongful act done without mens rea should not be made a criminal offence. Therefore it would be an arbitrary as well as an unreasonable act on behalf of the state and hinder it away from reaching its objectives that it aims to fulfil.
The punishment should be in proportion to the offence committed.
The third test which is the test of the requirement of proportionality is parallel to the reasons why this Bill fails to achieve its objectives. The requirement of proportionality ensures a rational nexus between the objects and the means adopted to achieve them. Punishment should always be proportionate to the crime and clearly the punishment of pronouncing triple talaq is many notches higher than the wrongful act as the mere pronouncement of triple talaq has been made an offence punishable with imprisonment which may extend to three years along with fine. Mere pronouncement of triple talaq is similar to ‘domestic violence’ under the DV Act. It includes harm or injury to mental well-being and ‘verbal and emotional abuse’. Even such abuses in Domestic Violence Act has been given civil remedies, it is only when the order of the magistrate does not adhere to the husband is put behind the bar. Under the IPC many serious offences have been given the punishment of 3 years and this pronouncement is a little to no serious as compared to arm rebellion, theft, etc. Putting the husband behind bars for up to three years would be inconsistent with the scheme followed in the Act. Thus, the above penalty is excessive and disproportionate.
Safeguards so the law cannot be misused.
Time and time again laws of the land have been misused by the people it so sought to protect. There is more than enough reasons to believe this Bill too can be misused as the offence has been made cognizable. If the wife or any of her relatives by blood or in-laws report it to the officer in charge of a police station the husband would be arrested without a warrant. Various offences dealing with similar subject matter like cruelty and taking or giving dowry are cognizable which leads to their misuse. This makes it vital for the Bill to incorporate certain safeguards so it cannot be misused.
It was a step taken by the state to protect the Muslim women and its aim was an unaffected subsistence of marriage however its aim is far from being achieved as classifying the pronouncement of triple talaq as a cognizable offence takes a different path from its actual goal. And thus this invasion of privacy by the state cannot be justified unless it employs civil means to tackle the problem.
The loopholes of this scheme can be overcome by these alternatives:
· Pronouncement of triple talaq shouldn’t be criminalised rather just declaring it “void” and “illegal” should be made enough for it to not have any legal status on the marriage.
· Triple talaq is a civil wrong hence should have civil punishment, by way of paying compensation to the wife for mental distress and the amount should be decided by the magistrate.
· Only on the non-compliance of the husband to the magistrate’s order should the husband be liable for a penalty of such breach in the form of imprisonment.
· The husband or anyone who tries to enforce the practice even if it has not legal status should be made liable for imprisonment.
· It is suggested that there should be some safeguards that the wife or any other person cannot misuse the law.
The Supreme Court had only declared the practice as unconstitutional and hence void, there was no such direction asking the state to make a legislation. It was the views of the parliament that deemed it necessary to properly enforce the precedent. It was because the law was enacted hastily these many rectifications are needed. Triple talaq is banned in many countries around the world and so should be in India as well without it being criminalised. Terming triple talaq unconstitutional is a step towards establishing a Uniform Civil code which the country most desperately needs however criminalising it goes way beyond the ethics and defeats the goals it so aim to achieve.
Aqil Ahmad, Mohammedan Law 163 (central law agency)  Ibid.  Ibid 169. Mohammed Wajihuddin, Criminalisation of triple talaq may be misused: Women's body, THE TIMES OF INDIA (Nov. 24, 2017), https://timesofindia.indiatimes.com/city/mumbai/criminalisation-of-triple-talaq-may-be-misused-womensbody/articleshow/61775066.cms.  (1906) 30 Bom. 537.  Supra note 1, pg 172.  (1926) 8 Pat. 690.  Supra note6, pg 169.  The Muslim Women (Protection of Rights on Marriage) Bill 2017, Statement of Objects and Reasons.  Supra note 9. Instant triple talaq Bill: Cabinet approves inclusion of provision of bail, THE HINDU (Aug. 9, 2018), https://www.thehindu.com/news/national/instant-triple-talaq-bill-cabinet-approves-provision-ofbail/article24643897.ece. Triple talaq is criminal offence, THE HINDU (Sept. 20, 2018), https://www.thehindu.com/news/national/triple-talaqis-criminal-offence/article24989451.ece.  (2017) 10 SCC 1.  Ibid. Eesha Shrotriya and Shantanu Pachauri, “Criminalisation of Triple Talaq: Dissecting the Constitutional and Socio-Legal Aspects”.  Ibid.  Supra note 15.  Ibid.  Ibid. Faizan Mustafa, Arbitrary and Irrational, THE HINDU (Dec 11, 2017), https://www.thehindu.com/opinion/oped/arbitrary-and-irrational/article21386439.ece. JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 134 (1 ed. 1789) pg 136.  Supra note 15. The Protection of Women from Domestic Violence Act, 2005, s. 3 (a)  Supra note 15. Pakistan, Bangladesh among countries to ban triple talaq, THE TRIBUNE (Sep. 19, 2018). https://www.tribuneindia.com/news/nation/pakistan-bangladesh-among-countries-to-ban-tripletalaq/655513.html