By- Mohd Imran
In August 2017, the Supreme Court of India has declared the practice of Triple Talaq as unconstitutional by 3:2 majority. Justices Kurian Joseph, UU Lalit and RF Nariman delivered the majority Judgment. Chief Justice Khehar and Justice Abdul Nazeer dissented. The Court directed the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat.’Accordingly, the Central Government drafted a law and tabled the same as the Muslim Women (Protection of Rights on Marriages) Bill, 2017 in Lok Sabha on 28 December 2017.
Followings are the reasons that will make the Bill easy to be challenged in the Court of Law.
- The Bill Exempts State of Jammu & Kashmir.
The Bill provides that it shall extend to the whole of India except the State of Jammu and Kashmir. It seems highly unreasonable as to why a Muslim woman of State of Jammu and Kashmir would be deprived of such a law protecting her from the horrors of Triple Divorce.
- Definition of Talaq is Vague.
The Bill provides that “talaq” means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband. Now, As far as the Muslim law is concerned there are two from of divorce allowed in Quran- (i) Talaq-i-hasan, (ii) Talaq-i-ehsan.
There is no any other form of divorce which is instantaneous and irrevocable in effect. There must be at least an example of the expression “any other similar form of talaq.”
- Declaration of Talaq to be Void and Illegal
Section 3 of the Bill provides that “Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.” Moreover, Section 4 provides that “whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine.”
Marriages among Muslims are civil contracts. And if Triple divorce is taken as a breach of such contract there is no reason to give such a severe punishment. However, after the Judgement of Hon’ble Supreme Court of India, triple divorce has been held to be void and unconstitutional. It simply means that if a Muslim husband pronounces triple divorce upon his wife such pronouncement shall have no effect in law. Such wife will still be a legal wife.
The expression which creates more confusion about the intention of the legislature is that “pronouncement of talaq shall be void and illegal.” If pronouncement of triple divorce is void then there will be no victim and no accused if a husband pronounces triple divorce. Even if we consider that legislature has declared pronouncement of triple divorce as illegal, and therefore, a person pronouncing triple divorce shall be punished is not good in law. We must not forget that rights and obligations in marriages are in personam. And if the Muslim wife upon whom triple divorce is pronounced is still wife (as the Bill declares triple divorce void) then against whom such a crime is committed for which a Muslim husband is to be punished. We cannot punish a man for committing a crime in abeyance. There must be some affected party to whom harm is committed. One more question which strikes in mind is that why State is so much interested in becoming a party to the suit of civil nature?
One alternative which could have been adopted by the legislature is that in case of pronouncement of triple divorce (which has been declared by the SC as well as under the Bill as void) the best possible effect would be that husband will refuse to live with his wife and to maintain her. In such cases, we should look forward to those remedies which are already given under the civil laws, such as restitution of conjugal rights, maintenance, mutual separation etc.
- Provisions Regarding Maintenance
Section 5 of the Bill provides that “without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced, shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children as may be determined by the Magistrate.”
The Bill further failed to provide as to how a Muslim husband will maintain his wife and children if he is imprisoned for the utterance of few words. We must not forget the cardinal principle that law cannot force anyone to do something which he cannot do (legal disability). In this way, this Bill gives less option to a Muslim wife to complain against her husband. If she complains about her husband about the pronouncement of triple divorce (though void) she will have to compromise with maintenance for livelihood. On the other hand, if she does not complains she will have to go through mental torture or even more.
- Burden of Proof, Mens Rea and General Exceptions
The burden of proof lies on the wife to prove that her husband has pronounced triple divorce on her. Again, the legislature failed to realise that some of the communications between husband and wife are done in a closed room. Now, how a wife will prove if her husband has pronounced triple divorce in a closed room where no one else is present.
In a criminal case, the prosecution has to prove that the accused has committed a crime with guilty intention beyond the reasonable doubt. It means actus reas as well as mens rea must be proved. The Bill further makes no declaration to the fact that whether pronouncement of triple divorce shall be punishable or not if husband pronounces triple divorce upon her wife in the circumstances given under Chapter IV of Indian Penal Code (General Exceptions), which includes a mistake of law, unsoundness of mind, intoxication, misconception etc. If a husband takes the defence of these general exceptions, then it would be difficult for a Muslim woman to prove the guilt of her husband beyond reasonable doubts.
- Criminalisation of Triple Divorce
Every punishment which does not arise from absolute necessity, says the great Montesquieu, is tyrannical. The bill is unleashing tyranny of law in India. It is excessive because in a civil matter the Government is using criminal law. The Union Law Minister Mr Ravi Shankar Prasad said that the Muslim Women (Protection of Rights on Marriages) Bill, 2017 is a historic step which will act a deterrent since there have been 100 cases of triple talaq even after the landmark judgement of the Supreme Court. He also said that while 22 Islamic Countries, including Pakistan and Bangladesh, had regulated instant triple talaq, there was no effective law in India. But the Honorable Minister did not realise that none of the above-mentioned countries criminally punishes husband for pronouncement of Triple Talaq.
Para 3 of STATEMENT OF OBJECTS AND REASONS of the Bill states that in spite of the Supreme Court setting aside talaq-e-biddat, and the assurance of AIMPLB, there have been reports of divorce by way of talaq-e-biddat from different parts of the country. It is seen that setting aside talaq-e-biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims.
The Legislature again failed to realise that customs and social practices are not easily removable from the society. We must not forget that even after the order of the Supreme Court banning the firecrackers on Deepawali, people continued their custom at the cost of polluting a city where they themselves live. What lack in the judgement of the Supreme Court and the Bill is the common acceptance by the community. Not a single custom in India had been abolished in one night, whether it is Sati practice, Bigamy among Hindus, or any other evil practice.
The fear of deterrent law will have less effect. The Census of 2011 reveals that child marriage is rampant, with almost one in every three married women having been wed while she was still under the age of 18 years. What is worse is a whopping 78.5 lakh girls (2.3% of all women or girls who were ever married or were married in 2011) were married while they were not yet 10 years of age.