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Will triple talaq bill stand the test of constitutionality in courts?

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The bill is full of redundant provisions, and will likely prove to be ineffectual in its approach. It actually does little to help Muslim women.

New Delhi: The bill to criminalise instant triple talaq may have raced through the Lok Sabha Thursday but a huge cloud of uncertainty hangs over it: will the law that will come into force, if the Rajya Sabha also passes it, stand the test of constitutionality in court?

Because, the bill, in its current form, is largely redundant, ineffectual in its approach, and does little to actually help Muslim women. As Indian Union Muslim League MP E.T. Muhammad Basheer put it, it is like “taking a gun to kill a mosquito”.

What is the bill trying to criminalise?

Stringing together the word talaq three times to seek divorce has now been rendered meaningless, thanks to the Supreme Court. It is as good as simply stating “I intend to divorce you”, or as useless as saying any other three words.

Stating the intent to divorce or actually divorcing a spouse is not a crime. So why should simply uttering “talaq, talaq, talaq” be?

There perhaps is no precedent for making the utterance of specific words a criminal offence, which does not include an ‘act’.

Law minister Ravi Shankar Prasad brought up deserted Muslim women more than once in his speech introducing the bill. In fact, he said there have been about 100 cases of instant triple talaq since the apex court’s ruling in August.

But here’s the catch—desertion is not a crime either. It is, at best, grounds for divorce even under Hindu laws or the Special Marriage Act.

While prescribing jail for pronouncing instant triple talaq could make for a free speech issue, a case for violating the right to equality can be made, since it singles out Muslim men for stating the intent to divorce.

What about family values?

The 2017 bill is perhaps the first law dealing with marriage and divorce that does not make an attempt to strike a reconciliatory chord between the husband and wife.

Courts make attempts at reconciliation a must in cases of divorce sought under Hindu laws and the Special Marriage Act. Even divorce through mutual consent is spread over three sittings between six to 18 months, to give every chance to the couple to reconcile. An exception is made by courts in a few cases where mutual divorce is sought, considering everything from education levels to the woman’s life post-divorce.

Even Muslim divorce, except in the case of talaq-e-biddat or instant triple talaq, is spread over at least three menstrual cycles, to ensure all efforts have been made to protect the marriage.

Practical hurdles in implementation

Section 6 of the bill says that a Muslim woman against whom talaq-e-biddat has been declared is entitled to seek custody of her minor children. This provision again is redundant, as a man in jail would not seek custody of children. Even if he does, the courts are unlikely to allow his request.

There was much discussion in Parliament on how a magistrate can decide the amount of subsistence allowance for the wife and dependent children. But a provision for such married-but-deserted wives already exists. The apex court had ruled a decade ago that a Muslim woman deserted by her husband can seek maintenance under Section 125 of the Criminal Procedure Code.

How will you prove it?

The issue of proving the crime is brought up when any gender-based crime is discussed, given how these crimes are sometimes confined to private spaces. But in triple talaq, no one seems to wonder how a case against the Muslim husband can be proved.

If the case is not proved, how will justice be done to Muslim women? Relying on eyewitness accounts and the statement of the wife is the normal evidence. But will it suffice?

For gender crimes, the rules of evidence have been changed to give effect to the laws. In rape cases, a consistent, unimpeachable statement by the victim is enough to nail the accused. Similarly, the burden of proof in dowry deaths is shifted to the husband.

Without such changes, the six sections to ostensibly protect Muslim women may end up doing more harm than what they seek to protect. That is if the proposed law is not struck down by a court.

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