A deeply flawed Triple Talaq Bill fails the litmus test

The five-hour-long debate on the Triple Talaq Bill, which was passed in the Lok Sabha on Thursday, has brought to light glaring flaws and contradictions in the provisions.The purpose of pushing through the Bill was overtly political, with one eye on the upcoming elections, and all parties were aware of that, but nobody could have imagined that it would be such a hastily-drafted piece of legislation.

The key element of the proposed new law, which as everyone knows is very unlikely to get passed in the Rajya Sabha, is to criminalise the practice among Muslim men to instantly divorce their wives by uttering "Talaq" thrice.

However, many speakers from the Opposition, while broadly supporting the effort to end the pernicious practice, highlighted three points that looked legally and practically untenable.

1. The very harsh three-year-jail term for the husband – particularly when in no other religion is there such severe punishment for uttering three words.

2. The astounding lack of clarity on who would provide maintenance to the wife once the husband is in jail.

3. The virtual shutting of the doors on any possibility of reconciliation.

These aspects apart, the deeper the debate went into the actual provisions of the Bill the more contradictions and gray areas they discovered. A summary of the various arguments made:

· The intention of the Bill is to protect the constitutional morality and dignity of women and to provide gender justice and gender equality. But the Bill ends up criminalising a civil law.

· Marriage is a civil contract. How can divorce be a criminal offence? It is not there in the Hindu religion or Hindu civil law. It is not there in the Christian law. Why is the Government criminalising a civil law in Muslim religion?

The Supreme Court has already struck down talaq-e-biddat and declared it void and illegal ab initio. One of the fundamental maxims of criminal jurisprudence is “nullumcrimen sine iniuria”. It means that no person shall be punished for an act that does not prove to be significantly harmful to anyone.

That means that talaq-e-biddat after 22nd August, 2017 does not in any manner harm or violate the rights of the wife unless the husband refuses to perform his conjugal duties or forces the wife to leave his house on the basis of this triple talaq.

As per Article 141 of the Constitution, the judgment of the Supreme Court is the law of the land. Even after the Supreme Court judgement, if any talaq takes place or any harassment of a woman takes place, there is no need of a fresh criminal provision - because (a) 498-A of the Indian Penal Code already exists; and (b) the Protection of Women from Domestic Violence Act, 2005 is also there.

These two laws, Section 498-A of the Indian Penal Code as well as the Protection of Women from Domestic Violence Act, 2005, allow prosecution of the husband. What then is the purpose of this new Bill? Is it not unnecessary? Does it not attempt to convert a civil law into a criminal act purely for ulterior political motives?

Further, it is against criminal jurisprudence on the following grounds:

(i) The harsh punishment of three years imprisonment is against the doctrine of proportionality of jurisprudence.

(ii) Three years of imprisonment to husband further penalises the wife who is already aggrieved. The person who is in the jail will get food, will get to go to courts and will get shelter but what about the divorced woman or the Muslim married woman against whom talaq is pronounced? What would be the fate of a divorced woman?

(iii) It may aggravate the already acute insecurity and alienate the Indian Muslim community in the country.

Clause 5 of the Bill says that when a triple talaq is made, then the wife is entitled to get maintenance. How will that be at all possible? The marriage has not ended, because tripletalaq has been declared illegal and non-binding.

Hence, effectively and legally, the husband-wife relationship is still subsisting even after taalaq is pronounced. The marriage is not over. Then what is the scope of maintenance under clause 5 of the Bill?

Also, if the husband is put in jail for three years, how will he be able to provide maintenance to the wife? Can any Magistrate of a court of law give an order providing for maintenance to a divorced woman whose husband is in the jail and cannot earn anything?

In other words, in the zeal to punish the man, the new law is ignoring the key issue of maintenance of the poor Muslim woman. This is tantamount to taking away the right of a divorced woman.

Unconstitutional

Clause 6 also says that when a triple talaq is made, the custody of the child will be with the mother. Here also, one has to assume that the marital status is still subsisting because talaq was illegal. How then can custody of the child be decided as if the marriage has been annulled?

Clauses 3, 5 and 6 are inter-contradictory. They could well be unconstitutional. Clause 6 of the Bill violates the provisions of the Guardians and Wards Act.

According to this Act, only the District Courts have the jurisdiction to decide matters relating to the guardian or ward. But in the Bill it is the Magistrate who has been entrusted with the authority to provide the custody of a child of a family. It seems illegal and a wrong notion of the principles of law.

Moreover, as per the Criminal Procedure Code, police is the complainant and prosecution is being initiated by the police. It is the police which is to initiate the prosecution and not the victim. For the victim, the State is being represented by the prosecution.

Under clause 7 of the Bill, if the husband, who is put in prison or is under arrest, wants to get the bail, the prosecution has to be heard and also the woman has to be heard. The Muslim woman, against whom the talaq is pronounced, has to be heard. Then only will the husband be getting bail. Where in the criminal jurisprudence has this been ever said?

The de facto complainant, the married Muslim woman, upon whom the talaq is pronounced has to be heard before giving bail. Suppose, that lady or her advocate does not appear before the court of law. As per clause 7 of the Bill, it is only after hearing the woman, against whom the divorce is pronounced, that the bail should be granted. In case the woman delays her hearing, he shall not be released on bail and bail will never be granted.

These are some of the intriguing arguments raised during the debate. No answers were forthcoming from the Treasury side. Perhaps because there can be no logical answers.

In any case, this is intended to appease Muslim women in order to woo votes in favour of the BJP. The Bill will get stuck in the Rajya Sabha and will lapse. So why bother too much with the drafting and finer points?