Monday, 28 November, 2022
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Muslim women may stand to lose more from proposed law criminalising instant triple talaq

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Triple talaq should be made a non-cognisable & bailable offence; it cannot be treated differently from adultery and bigamy.

Much has been said about the triple talaq issue. Despite differences of opinion among the stakeholders, two factors cannot be denied — firstly since the Supreme Court has already declared it unconstitutional, there can’t be further questions over the validity of this practice and secondly, the fact that the practice of instant triple talaq has been detrimental to the interests of Muslim women.

Reform is the need of the day and the triple talaq bill introduced in Parliament is a step in the right direction. We must now examine whether the contents of the bill are in consonance with the principles of jurisprudence and are sensible in treating the subject. The key argument against the bill is the introduction of ‘criminality’ in the proposed law.

There is widespread demand that as marriage and divorce are part of civil jurisprudence, injecting criminality in it is heavy handed and unwarranted. However, we must not lose sight of the fact that bigamy and adultery, both offences related to marriage are criminal offences under the IPC. Triple talaq would fall under the same category of offence. As of now, it does have an element of ‘criminality’ embedded in it.

However, both bigamy and adultery are treated as criminal offences but not against the state. They are therefore non-cognisable in nature and are bailable. The offence is committed against the spouse and hence only the aggrieved party can move for the institution of criminal proceedings.

In other words, a Hindu married man could marry more than once without attracting legal proceedings if his wife does not file a complaint, even though he has committed a crime. Triple talaq would fall under the same category and should be made a non-cognisable and bailable offence. It cannot be treated differently from adultery and bigamy.

The consequences of making triple talaq a cognisable offence are serious. This would empower a police officer, on having reasonable doubt, to enter the house of any person and arrest him on suspicion of committing the ‘crime’ of triple talaq.

Moreover, even mischievous neighbours can file a complaint about the crime of triple talaq with the police initiating proceedings against any man, without his wife having any complaints. In any case, under no stretch of imagination can triple talaq be deemed to be a crime against society.

Finally, the law makers should be mindful of a very important sociological factor. Unlike in the Hindu society, divorced Muslim women do not carry a social stigma. Remarriage of divorced women is quite common in Muslim society.

Talaq, though unfortunate, allows women to exercise choice of starting a new life post-divorce. If the law is made disproportionately stringent, a larger number of Muslim men may just abandon their wives without divorcing them.

There is no law that punishes abandonment of wife as yet. This would take away women’s right to remarry and start a new life. An analogy to this can be found in law governing rape. Most feminist organisations oppose imposition of death penalty for rape as they fear women would be invariably killed after the dastardly act for the fear of attracting death penalty. In the case of triple talaq too, a penalty disproportionate to the ‘crime’ would adversely affect women’s rights.

No two cases can be treated as identical and law must be nuanced. Law is also impacted by place, time and circumstances. Therefore, it is not prudent to compare the triple talaq case with the Shah Bano case. It is necessary for lawmakers to deliberate on these issues away from the rhetoric of TV channels or cacophonous public opinions to arrive at a law which would be balanced and usher in true reforms for women.

Arvind Mayaram is former finance secretary and former secretary, Ministry of Minority Affairs

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  1. The only Muslim women who lose are those who are members of MOULD (officiosuly known as AIMPLB) — which was responsible for foisting TT specific for Muslims in the first place!

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