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Criminalising instant talaq

January 4, 2018

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On August 22, 2017, the Supreme Court in a historic verdict in Shayara Bano vs Union of India, invalidated the practice of instant triple talaq, or talaq-e-biddat, declaring that it was arbitrary and unconstitutional. It asked Parliament to enact a new law on triple talaq, and further said if the law doesn’t come into force within six months, the court’s injunction on triple talaq would continue.

The Muslim Women (Protection of Rights on Marriage) Bill, introduced and passed in the Lok Sabha on December 28, 2017, upheld the Supreme Court injunction banning instant triple talaq, and went a step further by criminalising it. There can’t be any doubt about the fact that instant triple talaq is an evil practice, completely negating the right of equality, security and dignity of Muslim women; and it has to go. But the major bone of contention in the bill is the criminalisation of triple talaq. It should be noted that the Supreme Court has already invalidated the act. The critics of the bill wonder why, when the act itself is not valid, its mere utterance, which is absolutely ineffective, should attract criminal penalties? Also, by criminalising this, the government is bringing a civil matter into criminal jurisdiction. The severity of the punishment and making it cognisable, which means the police can arrest the husband without judicial supervision and even without any complaint from the wife, is also under question. Supporters of the bill draw a parallel to Section 498A IPC and bigamy, which are also criminal offences. However, these supporters fail to note that bigamy is a non-cognisable offence, and if the first or the second wife does not complain, the State cannot take any action on its own. The Supreme Court has also recently issued strict guidelines that checks automatic arrests in Section 498A cases, calls for greater scrutiny by the police and magistrates, and categorically stated that non-compliance will attract disciplinary and contempt proceedings.

The idea behind any law is to provide checks and balances that will provide a certain measure of protection from abuse to all parties, by individuals or by agents of the State. The criminalisation of the mere utterance of triple talaq is seen as arbitrary, and given the current socio-political atmosphere across the country, in which the members of a minority community could be lynched simply over rumours of eating beef or slaughtering cows, the fear is not unjustified that the cognisable nature of the “crime” will be misused for deliberate harassment. If punishment is to be used as a deterrent, which is an acceptable idea in itself, the nature of punishment could be fines, transfer of fixed assets to the wife or minor children, or other measures without going to the extreme of criminalising a purely civil matter. Or, if it has to be criminalised, it should be done only on the complaint of the wife, not anyone else.

One of the rationales behind the Supreme Court judgment of banning instant triple talaq was that it doesn’t leave any scope for reconciliation. By proposing to send the husband to jail, the government is actually ensuring that there is no room left for reconciliation. The plight of the wife would be further enhanced due to the fact that despite remaining in the marriage, she would have no place in her marital home as she would be seen as instrumental in sending her husband to the jail. The bill is also silent about how the husband will be able to pay the subsistence allowance if his source of earning is barred by imprisoning him. There are no guidelines about computation of the subsistence allowance and it is left to be decided by the magistrates. In India, of course, the courts often take a long time to decide a case. Who is going to provide for the woman and her children in the meanwhile? Congress MP Sushmita Dev has suggested the creation of a corpus fund by the government to support such women and their children till they can legally manage to get the subsistence allowance. However, the suggestion was rejected.

The government had earlier argued against making marital rape a crime on the pretext that it would break down the institution of the family. In a landmark judgment as recently as October 2017, the Supreme Court criminalised sex within a child marriage, terming it as rape, removing an earlier exemption from the Indian Penal Code that stated that married girls above 15 years of age could not press rape charges against their husbands. In that context, the government argued that it should not be criminalised, taking the same excuse that it would lead to the breakdown of the family. Why doesn’t the government use the same logic about not harming the institution of the family by removing the clause of cognisable and non-bailable criminality that will irrevocably break the family by not leaving any scope for reconciliation? On the other hand, why doesn’t the government think about providing gender justice to scores of women, across communities, by making marital rape a criminal offence? The government cannot have double standards for gender justice!
On December 28, without adopting a single amendment suggested by the Opposition parties, as well as refusing to send the bill to the standing committee for detailed consideration, the government bulldozed its passage through the Lok Sabha by sheer strength of its brute majority. The bill could have been a landmark and truly historic act of legislation had it not been so unthinkingly and perhaps uncaringly drafted. Going by the Lok Sabha experience, the government appears to be unwilling to listen to and accept any suggestions to strengthen the bill and plug in loopholes. The government may be able to avoid legislative scrutiny by bulldozing its way through, but it cannot evade judicial scrutiny in case the law is subsequently challenged in the courts.

At the time of writing this, the bill is all set to be tabled and come up in the Rajya Sabha. One can only hope that the bill will then incorporate amendments to strengthen it further and shed some of the proposed provisions that might subvert the very purpose of the bill: to provide gender justice to Muslim women.

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