Criminalising Triple Talaq: A Step Closer Towards Gender Justice

Mehvish Ashrah, a woman lawyer, explains why Muslim women stand to gain from the criminalisation of triple talaq.

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(This was first published on 15 August 2019. It has been republished from The Quint's archives to mark three years since the implementation of Triple Talaq Law.)

On 30 July 2019, the Parliament passed the much-awaited Triple Talaq Bill, 2019. The Bill received the Presidential assent on 1 August 2019, making it an Act: The Muslim Women (Protection of Rights on Marriage) Act, 2019 (hereinafter, the Act).

The Act criminalises triple talaq (instant divorce), a practice prevalent among a section of the Muslim community, whereby a husband pronounces irrevocable divorce to his wife instantaneously, simply by uttering the word ‘talaq’ three times.

While the Act has been lauded across the country as a remarkable step toward gender justice, there are many who oppose it. A petition challenging the Act as being violative of Article 21 of the Constitution has also been filed in the Supreme Court by a religious organisation of Sunni Muslim scholars and clerics in Kerala.

The Muslim Women Act Is a Deterrent

Those who oppose the criminalisation of triple talaq argue that the Act is useless, having no real implications, since the practice of triple talaq has already been declared as void by the Supreme Court. As a corollary, they argue that imprisoning a person for doing an act which counts as ‘nothing’ is an absurdity.

However, this interpretation squarely goes against the cardinal principle of criminal law jurisprudence on deterrence. In other words, the Act, by criminalising the practice of triple talaq, is in conformity with the objective to deter the individuals from committing such an act. In keeping with the larger paradigms of gender equality, the objective of the Act is not to deal with a situation that arises post divorce, but to prevent the divorce from being pronounced in the first place.

Second, a mere fact that an act is void in the eyes of law does not preclude the Parliament from making it an offence, if the same is in the larger public interest.

The argument can be further substantiated by drawing an analogy with Section 17 of the Hindu Marriage Act, 1955. While Section 17 of that Act declares an act of bigamy as void, it continues to be an offence under section 494 of the Indian Penal Code (IPC). The sole purpose for the inclusion of a parallel provision in the IPC, is to create a deterrence against such acts. The same holds true for the law criminalising triple talaq.

How The Muslim Women Act Will Help Numerous Muslim Women

Third, some Muslim women in India may still believe in the practice of triple talaq, and may consider accepting the divorce as a part of their religious obligation. In the absence of such an Act, the woman may be compelled to separate from her husband rendering the Supreme Court verdict as toothless.

The Act comes to the rescue of such women by giving them the power to prosecute the husband upon such pronouncement, further creating a deterrent.

Fourth, the law is justified in view of the recurring instances of triple talaq post the Supreme Court verdict. Over 345 cases of triple talaq have been reported after the verdict in 2017, as quoted by the Union Minister for Law and Justice, Ravi Shankar Prasad, during the Parliamentary discussions on the Bill. This clearly suggests that the verdict itself has not deterred people from resorting to such practices.

In fact, there are umpteen judgments that are not implemented at all, particularly the judgments relating to religious matters, a recent example being the Sabrimala Temple verdict that was opposed by many, including some political parties. Such situations certainly call for a legislative or executive intervention.

When Right To Privacy Allows For ‘Reasonable Intervention’

Fifth, it has been argued that criminalising triple talaq would amount to an invasion of privacy of a marital bond. However, if a marriage operates to the detriment of any party or to the society at large, it no longer remains a private affair. Not all matrimonial affairs can be left to the private individuals; state intervention is warranted in some cases.

It is the duty of the state to protect the interests of each and every individual.

In case of wrongs such as desertion by spouse, cruelty by husband or his relatives, dowry demand (which happen to occur in the private sphere), the state is not precluded from interfering in the matter. The same thus applies to the practice of triple talaq, which gives the husband an arbitrary power to instantly divorce his wife at his whim, often rendering the wife destitute and helpless.

Further, the Supreme Court, in Justice K.S Puttaswamy and Anr. v Union of India 2017 10 SCC 1, while affirming the right to privacy as a fundamental right, had clearly stated that any reasonable intervention would not amount to infringement of the right. Besides, in a very recent decision, in Ritesh Sinha v State of UP, delivered on 2 August 2019, the Supreme Court reiterated that “the fundamental right to privacy is not absolute and must bow down to the compelling public interest”.

A Step Towards Gender Justice

As far as the argument that the incarceration of the husband would weaken the marital bond and leave no scope for reconciliation of the parties concerned, it may be noted that cognisance of the offence under the Act can be taken only on complaint lodged by the victim or her close blood relatives.

If the wife wishes to reconcile, she may choose not to file a complaint against the husband.

Also, the offence is compoundable upon the request of the wife, making the Act flexible enough for any reconciliation and restoration of the marital bond. There is also a provision for maintenance of wife and children, thereby not compromising the legitimate interests of the wife and the children. The Act, therefore, protects the interests of both the parties while retaining the sanctity of the institution of marriage.

The bottom line is that the Muslim Women (Protection of Rights on Marriage) Act, 2019 penalising triple talaq, is certainly a step in the right direction.

The Act is, in no way, an addition or modification to the Supreme Court’s verdict in Shayara Bano as has been pointed out in the petition challenging it. The Act is rather, in keeping with the Supreme Court judgment.

The Act has brought a huge relief to many Muslim women across the country. The huge gender gap in India necessitates such laws. The Act is undoubtedly a step toward achieving the goal of gender justice, and therefore deserves praise.

(Mehvish Ashraf holds an LL.M from Jamia Millia Islamia. Her specific interest lies at the intersection of law and gender rights. She can be reached at [e-mail]. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)