Arbitrary and irrational

Declaring triple talaq a penal offence does not stand up to first principles of criminal jurisprudence

December 11, 2017 12:20 am | Updated 08:05 am IST

The proposal by the government to introduce a Muslim Woman Protection of Rights on Marriage Bill in the winter session of Parliament — wherein a husband who resorts to instant triple talaq can be jailed for up to three years and fined — needs closer scrutiny as there is stigma attached to criminal conviction. On August 22, 2017, a five judge Bench of the Supreme Court, in a majority 3:2 judgment, set aside the practice of Talaq-e-Biddat (triple talaq); the minority view of Chief Justice J.S. Khehar, who led the Bench, and Justice S. Abdul Nazeer was that triple divorce is a valid form of divorce.

If Parliament wants, it can enact a law on it. But nowhere in its judgment has the top court said that triple divorce is to be criminally punished.

No longer valid

No one can question Parliament’s power to legislate with respect to personal laws under Entry 5 of the Concurrent List. But in the Supreme Court judgment, the majority of three judges had already “set aside” triple divorce. Under Article 141 of the Constitution, this is the “law declared by the Supreme Court”. Therefore, there is basically no need for any law as triple divorce no longer dissolves marriage. But since the court did not explicitly state the consequences of its three pronouncements, Parliament may say that the three pronouncements will count as one revocable divorce. This is the law in most Muslim countries whose examples were cited by the government in the top court.

The stand of the government, which, citing data, said that its decision was influenced by over 60 cases of triple divorce even after the Supreme Court’s decision is not correct. The belief that if wrongful conduct becomes a crime, people will refrain from indulging in it is both erroneous and not been substantially proved by any authentic empirical research.

Since triple divorce no more dissolves marriage, its pronouncement is inconsequential and in no way adversely affects either the wife or society. Thus no legitimate state interest is adversely affected. In making triple divorce a penal offence, the government is in fact like the Rajiv Gandhi government after the Shah Bano case — accepting the view of conservative Ulema who have themselves taken the stand that while triple divorce validly dissolves marriage, the person making three instant pronouncements is liable to punishment. Are we going to insist on mens rea (guilty intention) or make triple divorce a ‘strict liability’ offence which would mean that even if the person did not intend to divorce his wife, he would be punished for mere utterance of the word “divorce” thrice? Since the cardinal principle of criminal law is presumption of innocence and the burden of proof is always on the prosecution which has to prove the case beyond a shadow of a doubt, how will the poor wife prove instant triple divorce if declared orally when no one else was around? The husband will be entitled to acquittal claiming the benefit of doubt. Since the law makes the husband liable for the payment of maintenance, how will he pay maintenance if he is sent to jail?

Even more crucial, is this question. On what basis has the Bill provided for imprisonment of three years?

Under the IPC

Why did the government not look at provisions under the Indian Penal Code (IPC) which is the general criminal law of the country? For what crimes does the IPC reserve imprisonment of three years? Section 148, which is on rioting and armed with deadly weapon, has a provision of three years or with fine, or with both. Section 153A, which is on promoting enmity between different groups, is also for three years, which may extend to five years and shall also be liable to fine. Section 237, which punishes the import or export of counterfeit coin, has the same term. It is the same again with Section 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs). These serious crimes are in no way comparable to an individual who instead of taking three months to divorce his wife, just took a minute in making all three pronouncements. Such divorces generally happen out of extreme anger when a person really does not know the nature and quality of his act, and already an exception from criminal liability.

A cursory look at other sections shows these: Section 304A (Causing death by negligence); Section 147 (punishment for rioting); Section 171E (Punishment for bribery); Section 269 (Negligent act likely to spread infection of disease dangerous to life); Section 272 (Adulteration of food or drink intended for sale); Section 295 (Injuring or defiling place of worship with intent to insult the religion of any class); Section 290 (Punishment for public nuisance in cases not otherwise provided for); Section 337 (Causing hurt by act of endangering life or personal safety of others); Section 341 (Punishment for wrongful restraint) and Section 420 (Cheating and dishonestly inducing delivery of property) have much smaller terms of imprisonment and fines. Thus imprisonment of three years for triple divorce is excessive, arbitrary and irrational, and violative of Article 14.

Ideally, divorce should not be treated by divorcees as the end of the world. Our women do not need men to lead a dignified life. We must remove the stigma attached to divorces. Triple divorce should be nothing more than civil contempt of the Supreme Court.

Faizan Mustafa is Vice-Chancellor NALSAR University of Law, Hyderabad. The views expressed are personal

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