By Aman Bagaria
The Supreme Court, in August, had declared triple talaq as unconstitutional and it was struck down by a 3:2 majority. It asked the government to enact a law regarding the same within six months, during which the practice shall remain suspended. On the 15th of this month, the Union Cabinet cleared a bill called the Muslim Women (Protection of Rights on Marriage) Bill to criminalise the practice of triple talaq and make it an offence, punishable by imprisonment for a period of three years along with a fine. However, this news wasn’t received by the populace in the spirit that the government had intended. While some welcomed it, there were others who deemed the criminalisation as wasteful and ill-considered—and with good reason.
Most Muslim nations around the world have banned the practice of triple talaq. However, India, being a country that practices non-intervention in religious laws, had strayed away from revoking the practice, despite its evidently unjust and discriminatory nature. Even though the Supreme Court judgment finally did away with the practice, the introduction of the Bill to criminalise the act itself comes off as reckless and wasteful.
Largely held to be a bill for the protection of women’s rights and their welfare, the Bill fails to consider the financial impact that the imprisonment of the husband can have on the spouse and the children. Even though the Bill provides for maintenance to be paid to the wife, it seems highly unlikely that an imprisoned individual would be able to provide for his family. Another consequence of the triple proclamation—provided that the Bill is passed—would be that the custody of the child would go to the mother. As the entire idea behind doing away with the practice was to stop the divorce from taking place, the provisions for maintenance and the passing of the custody of the child to the mother do not seem justified.
There seems to be absolutely no requirement for a person guilty of giving divorce to be imprisoned, as the act itself has been held invalid by the Supreme Court in its judgment. Over and above this, the quantum of imprisonment also seems excessive. Considering the general trends of the punishment as envisaged by the Indian Penal Code, it is seen that imprisonment for a period of three years is only given for serious offences like sedition, acts endangering the integrity and security of the nation and other such offences. Three years of imprisonment for an act that has no impact on the marital status of the person appears to be disproportionate in whatever way it may be considered.
The rationale behind the Bill
The government, while explaining the rationale behind the criminalisation of the practice, has said that even after the Supreme Court had made triple proclamation an illegal act, over 60 cases of triple talaq had come forward; the decision did not seem to be having the desired effect. This is an incorrect interpretation as a Supreme Court decision cannot be popularised enough within a period of two months. Moreover, instead of putting people behind bars, the correct thing to do is to create legal awareness about the decision.
The motive behind criminalising the act was so to make imprisonment act as a deterrent. However, it does not necessarily follow that there is a relationship between the incidence of crimes and punishment. Many offences entail with them provisions for rigorous punishment and even capital punishment. However, crime rates have only been on the rise, thereby derailing the deterrent argument. Another thing that might be mentioned is that an individual may even be imprisoned for a civil wrong like contempt of court, or the non-payment of maintenance. If its only purpose was to serve as a deterrent then criminalising the act is not a necessity. Section 498A of the IPC, which deals with cruelty against women, already encompasses within it divorce by triple proclamation and hence, the present legislation becomes increasingly wasteful.
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