As per the figures of 2011 Census, Muslims constitute approximately 15% of India’s total population which amounts to approximately 190 million people. Thus, the passing of ‘The Muslim Women (Protection of Rights on Marriage) Bill, 2018’ (hereinafter “the bill”) will directly impact around 200 million Indians. The Bill seeks to provide justice to married Muslim women but the criminalisation aspect of this bill is unjust to the Muslim men. Rajya Sabha also called the upper house of the Parliament was created to forbid hasty legislations however the government seems to be in such a hurry that none of the stakeholders involved like the Muslim Women or the Personal Law Boards were consulted and were given their basic right i.e. right to be heard, while drafting this legislation. The principle of legislation through representation is missing here as miniscule amount of women were consulted before taking this significant decision.

There are several contradictions in this Bill as it presumes that the “PRONOUNCEMENT” of ‘Triple Talaq or Talaq-e-Biddat’ can instantaneously and irrevocably dissolve the marriage, and proceeds to “VOID” in Section 3. Nonetheless, this begs the question of how, if after uttering; talaq-e-biddat is inoperative under Section 3; its nugatory pronouncement can be considered a cognizable and non bailable offence under Section 4. The question here is, can a law criminalise an act after conceding that it does not result in a crime?

However, the most glaring internal contradictions are found in Sections 5 and Section 6 which discuss post divorce issues such as “subsistence allowance” for the women upon whom triple talaq “is pronounced” and the “custody of the minor children” as if her marriage is dissolved by the mere pronouncement of talaq-e-biddat. How could the authors of this Bill talk of post-divorce matters ignoring the fact that the pronouncement has already been declared void in Section 3 and therefore cannot result in a divorce. Therefore, making triple talaq a criminal offence is unnecessary and possibly counter-productive.

It has been observed that most husbands resort to talaq-e-biddat in a situation of emotional outrage or out of misunderstanding of Muslim Law. In the former case men often express profound regret within a short time as irrevocable divorce was never the intention of the outburst. Such men will heave a sigh of relief and will thank the Supreme Court when they realize that their marriage is still intact. But if they are stigmatised with punitive punishment the chances of their marriage disintegrating are very high. Therefore, in that sense the proposed law will end up being the bane of their lives.

Furthermore, the government should have also taken notice of Sec. 498A of I.P.C., which has been misused since years, and similarly this law can also be misused by Muslim women. Marriage, in Islam,  is a sacred contract between men and women which is purely a personal matter and therefore it should not be criminalized.  Moreover, not only triple talaq is made criminally punishable under this bill but it has also been declared cognizable and non-bailable offence. So upon the receipt of a complaint by a Muslim wife or even her relatives, the police can arrest the Muslim Husband without a warrant. The government therefore has not taken note of Article 14 of the Constitution of India which mandates equality before law and equal protection of law irrespective of caste, race, religion, sex or place of birth. If a Hindu man intends to divorce his wife, proper process is followed as mentioned under Hindu Marriage Act and civil provisions are attached to it but if a Muslim man does the same (per Triple Talaq) he shall be subjected to criminal prosecution even though the divorce has been declared null and void by the apex court itself.

Thus, the government’s stand is arbitrary and irrational and the data cited by it that its decision was influenced by over 60 cases of triple divorce pronounced, despite the Supreme Court’s decision, is illegal. The belief that if wrongful conduct becomes a crime, people will refrain from indulging in it, is both erroneous and not been substantially established by any authentic empirical research. Since triple talaq no more dissolves marriage, its pronouncement is inconsequential and in no way adversely affects either the wife or the society. Thus, no legitimate state interest is adversely affected.

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

Now we come to data. Notwithstanding the appalling social and economic backwardness among Muslims in India as documented by Sachar Commission’s findings, for the purpose of this bill, marriage, dissolution of marriage and re-marriage, we may look at the available data which does not pose any grave opposition to the practice of triple divorce.

The Delhi based Centre for Research and Debate in Developing Societies, reported the results of the survey which showed that the incidents of this form of talaq was less than 1 in 100. The Survey recorded 331 talaqs reported by both men and women respondents of which just 1 was oral “triple talaq”, where “talaq” was uttered 3 times in 1 go, without any witnesses in record. Another data from Marital Status by Religious community and Sex 2011 establishes the empirical position. It reads as follows:

“Our principle finding is that the situation of Indian Muslim women seems far better than the women from other religious groups. For example the percentage of women staying in marriage is highest among Muslims, 87.8% compared to Hindus 86.2%, Christians 83.7% and other religious minorities 85.8%.”

Thereafter the percentage of widowed women is least among Muslims 11.1% as compared to Hindus 12.9%, Christians 14.6% and other religious minorities 13.3%. It is likely that the culture of widow remarriage provides higher level of family protection to Muslim women as compared to women from other religious communities. The percentage of separate and widowed women is least 0.6% as compared to Hindus 0.69%, Christians 1.19% and other religious minorities 0.68%.  

The Supreme Court’s judgment in no uncertain terms is historic wherein the principle of non est was referred and it was held that marriage doesn’t break by the pronouncement of triple divorce. Hence the judgment was in furtherance of the constitutional rights of Muslim women and any judgement that ensures equality and upliftment of women is a welcome step. Furthermore, since there is no legal consequence of triple divorce so the intention of the legislator to criminalise it is completely unneeded and per the theories of Jeremy Bentham and Baron de Montesquieu, i.e., any law that is made without need leads to tyranny.

Thereafter the penal clauses laid down in the bill that imposes 3 years imprisonment and a fine as opposed to a mere 1 year imprisonment under the The Hindu Marriage Act, 1955 is being termed as unreasonable and arbitrary and consequentially, violative of Art. 14 of the Constitution  by those advocating against the bill.

During the discussion in Parliament on the issue of the bill’s constitutional validity several legitimate questions were raised pertaining to its legality. A parallel was drawn between the bill and S.377 of I.P.C. and it was stated that the Harm Principle was allowed by the recent judgement on S. 377 and sexual minority of this country was accorded freedom of choice, then why not such a choice be given to the religious minority of the country? Moreover, the Sabrimala judgement talked about protection of faith and religious beliefs of the Hindu community but who shall advocate and protect the faith and religious beliefs of the Muslim community and isn’t this the case where they are denied such a protection; violative of their fundamental rights under Art. 26 and Art. 29 of the Constitution? How can a law that imposes 3 years of imprisonment for pronouncing divorce be in conformity with the principles of reasonable classification when there is no legal sanction against those who indulge in extra marital affairs or when the punishment for death due to negligent driving is merely 2 years? Marriage is considered as a contract in Islam which is civil in nature and in the event of any violation of civil laws, the remedies available to the victim of such violations shall be in form of civil remedies that does not include imprisonment which is a remedy in criminal cases only.

All other legislations pertaining to marriage and divorce; for example- The Hindu Marriage Act, 1955 and The Indian Divorce Act, 1869 grant remedy to the victim in the form of divorce or a suit for divorce is initiated between the partners. Also, in every other legislation, to retrieve the marriages that are at the verge of breakdown, there is a system for reconciliation of marriages, for example, Section 9 of the Hindu Marriage Act, 1955 that gives a chance to the husband and wife to file for restitution of marriage in any adverse situation.

Thus it can be argued that, instead of penalising the husband for pronouncing triple talaq unilaterally, a provision for the restitution of marriage should have been invoked and made compulsory. If the purpose of this bill is to protect the marriage of the Muslim women then bringing this act under criminal domain will be the biggest blockade in achieving the aim and objective of this bill. The best way to protect the rights of Muslim women is to dictate the husbands to reconcile their marriages and to insert a freezing period of one year wherein both the parties ought to make up their mind either to end their marriage or to come together again. In this way the issue of unilateral breakdown of marriages will be done away with and women will also have a say in the matters concerning their marriage.

The problem with this bill is that it criminalises the manner of seeking divorce; however it does not end the marriage after such criminalisation. Imagine a situation where a Husband in a fit of moment seeks triple talaq and is sent to jail, then will it be safe for a woman to again live with that husband? Also, since instant triple talaq is declared null and void and the husband is in jail, several other pertinent questions also come to mind;

  • Firstly, the question of maintenance comes into picture: that who will provide it for 3 years.
  • Secondly, if the husband is in jail how will he provide the maintenance? 
  • Thirdly, if the husband is not able to provide the maintenance how will the woman survive as she is also not allowed to re-marry?
  • Lastly, what happens when the husband is out of jail after 3 years and what would be the situation if the husband grants other forms of divorce from the jail itself?

These questions highlight major loopholes of the bill that have been left unanswered by our legislators.

It is the duty of the Parliamentarians to solve problems and not to create them. Parliament is responsible to legislate laws that stand the test of time. However, this Bill in its present form seems to be bad in law and subject to be declared ultra vires to the Constitution as its multiple provisions are in stark violation of our Constitutional provisions.

Therefore instead of criminalising the act of pronouncing triple talaq, an effort should be made to reconcile the differences that led to such pronouncement or if the marriage is irretrievable, then in that case marriage should be dissolved with the consent of the wife.

The best solution would be to bring in a uniform law for marriage and divorce so that every issue of arbitrariness is dealt with by way of a singular legislation that governs men and women of every religion and there is due compliance of the provisions under Art. 14, 21, 26 and 29 of the Constitution.

Co-Authored by Harsh Bajpai (Policy Officer- Centre for Internet and Society)

Manthan Dixit (Fourth Year Student of Law at Symbiosis Law School, NOIDA)

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