Divorce as crime: on instant triple talaq

The Centre’s proposal to make instant triple talaq an offence punishable with three-year imprisonment and a fine is an unnecessary attempt to convert a civil wrong into a criminal act. By a three-two majority, the Supreme Court has already declared, and correctly, that the practice of talaq-e-biddat, or instant divorce of a Muslim woman by uttering the word ‘talaq’ thrice, is illegal and unenforceable. While two judges in the majority said the practice was arbitrary and, therefore, unconstitutional, the third judge ruled that it was illegal because it was contrary to Islamic tenets. Its consequence is that the husband’s marital obligations remain, regardless of his intention in pronouncing it. When Parliament enacts a law to give effect to the judicial invalidation of talaq-e-biddat, it must primarily ensure protection to Muslim women against its use. Although the details are not yet available, the proposed Muslim Women (Protection of Rights on Marriage) Bill, 2017, appears to have provisions for maintenance or subsistence allowance to the wife and children in the event of triple talaq being pronounced. It seeks to preserve the woman’s entitlement to custody of her children. While these are welcome and necessary features of a law aimed to protect the rights of Muslim women against arbitrary divorce, it hardly requires iteration that the civil character of these aspects of marital law must be preserved.

Instant triple talaq is viewed as sinful and improper by a large section of the community itself. Therefore, there can be no dispute about the need to protect Muslim women against the practice. But it is also well established that criminalising something does not have any deterrent effect on its practice. That there have been 66 cases of its use after the Supreme Court verdict only underscores the need for protecting women against desertion and abandonment, but is it justified to send someone to jail? Also, the fine amount under consideration could as well be awarded as maintenance or subsistence allowance. The All-India Majlis-e-Ittehadul-Muslimeen president, Asaduddin Owaisi, has argued in a letter to the Union Law Minister that there is no need for a fresh criminal provision when existing laws, under Section 498A of the Indian Penal Code or provisions of the Protection of Women from Domestic Violence Act, 2005, already allow the prosecution of a husband for inflicting physical or mental cruelty, emotional and economic abuse, and for deprivation of financial resources. Regardless of whether instant talaq would fall under any of these forms of cruelty or domestic violence, criminalising it risks defeating the objective of preserving the husband’s legal obligations, and the payment of maintenance. The Centre would do well to reconsider its draft and limit its scope to providing relief to women, instead of creating a new offence out of a civil matter.