Centre passes ordinance on triple talaq: Is criminalising offence tantamount to 'legislative overreach'?

The Union Cabinet passed an Executive Order which makes triple talaq an offence in India. The law is formally called Muslim Women (Protection of Rights on Marriage) Bill, 2017. Not surprisingly, any move to criminalise triple talaq or talaq-e-biddat in India in the past has been quite controversial.

The law governing triple talaq in India and provisions of the Ordinance

The practice of instant triple talaq (also known as talaq-e-biddat) is an irrevocable form of divorce where a Muslim man divorces his wife by uttering talaq thrice in succession. The ordinance criminalises talaq-e-biddat which is distinguished from other forms of divorce like talaq-e-hasan (a revocable form of divorce) wherein the husband pronounces talaq thrice but at certain intervals, and which can be revoked at any time before the third pronouncement.

In August 2017, a five judge bench of the Supreme Court in Shayara Bano versus Union of India in a majority of 3:2 held that triple talaq (talaq-e-biddat) is unconstitutional on grounds that triple talaq did not form an essential part of religion under Article 25 (right to religion). The case was filed in 2016 by Shayara Bano, to declare the practice of instantaneous triple talaq unconstitutional, arguing that the practice violated her right to equality before law and protection against discrimination on the basis of her religion and gender.

Representational image. Reuters

In December 2017, the Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2017 (Bill No. 247 of 2017). The Bill states that talaq-e-biddat, whether spoken or written or used in any other form is void and illegal. The punishment for pronouncing talaq-e-biddat is imprisonment up to three years and additional fine. The offence is non-bailable and cognisable (the police can arrest the accused without a warrant).

Under the Bill, a Muslim woman is also entitled to maintenance from her husband for herself and her children, and the custody of her minor children. The government subsequently amended the Bill under pressure from the Opposition to water down certain provisions. However, as the Bill could not be passed by the Rajya Sabha in this year's Monsoon Session, it was still pending in the Rajya Sabha when the central government passed the ordinance criminalising triple talaq.

The Statement of Objects and Reasons of the Bill states that the Bill was introduced in light of the many cases of talaq-e-biddat in India that were reported in spite of the Supreme Court ruling in Shayara Bano. While it is not clear when the Ordinance comes into force, the ordinance must be passed within six weeks after the Parliament reassembles.

Arguments against criminalising triple talaq

The Muslim Personal Law (Shariat) Application Act, 1937 states that all personal matters such as inheritance, marriage, divorce, maintenance and guardianship where the parties are Muslims would be governed by Muslim Personal Law (Shariat).

What also emerges from the debate on criminalising Triple Talaq is that while the practice is not necessarily supported by the Muslim community, Muslims (including women) are averse to criminalising the practice of triple talaq. The arguments to support this are that penalising a Muslim man for pronouncing Triple Talaq would erode the institution of marriage. Activists, who are not in favour of the Triple Talaq law, argue that it is sufficient that the Shayara Bano ruling makes instant Triple Talaq void and that there is no need to criminalise what is essentially a civil wrong (marriage between Muslims is in the nature of a civil contract).

The concerns regarding misuse of Triple Talaq are real. In an incident reported recently, a Hyderabad-based woman sought the intervention of External Affairs Minister Sushma Swaraj after her husband an Onami national divorced her through Triple Talaq over Whatsapp. Similarly in April 2018, a Muslim woman in Maharashtra alleged that her husband had divorced her by pronouncing triple talaq in a Whatsapp video that he sent to her. There are also reports of Muslim men divorcing their wives through registered post and a newspaper advertisement. These incidents highlight the plight of Muslim women who are divorced unilaterally and abandoned by their husbands.

This is why the Shayara Bano ruling has brought reprieve to many Muslim women in India. The question which requires greater scrutiny is whether criminal sanctions such as imprisonment and fine are warranted in cases of Triple Talaq.

Triple talaq Bill- reminiscent of Shah Bano controversy?

Interestingly, the practice of talaq-e-biddat has already been abolished in as many as 20 countries (a fact which was referred to by the Supreme Court in its Triple Talaq ruling) and some states have also considered criminalising the practice. In February 2018, the Council of Islamic Ideology (a constitutional body instituted to offer legal advice on Islamic issues to the Pakistan government and the Parliament) recommended criminalising Triple Talaq in Pakistan. However, there is a view that India should not be guided by the laws in other jurisdictions as Indian Muslims differ in their religious beliefs from Muslims in other parts of the world.

While the government's intention to ban Triple Talaq is laudable inasmuch as it can act as an effective deterrent for men from arbitrarily divorcing their wives, the question is whether criminalising the offence can amount to a case of 'legislative overreach'; here, I refer to a scenario where the Legislature is overstepping into the domains of a religion's personal law to prescribe a remedy which the personal law never intended. Apart from the example of Pakistan, there is little evidence to suggest that Triple Talaq has in fact been criminalised in other jurisdictions.

It is one thing for the Indian judiciary to draw on the religious practices in other countries to justify that Triple Talaq is not an essential part of religion and therefore, not protected under Article 25, however, when the Legislature imposes sanctions for the same practice, it can be argued that this too is unconstitutional as this was not envisaged by the personal laws of a community.

I am also sceptical that while the ordinance is progressive where it safeguards a Muslim woman's right against triple talaq, the ordinance invites the criticism that followed the Supreme Court's ruling in the Shah Bano case in 1985. Shah Bano was a landmark case in India where the court confirmed a Muslim woman's right to receive maintenance beyond the iddat period. The judgment was mired in controversy because the court was seen as encroaching upon the personal laws of Muslims and imposing its own interpretation of Sharia law.

This concern has already been flagged by Islamic clerics in case of the Triple Talaq law. The government of the day should therefore be careful not to repeat this mistake.

The author holds a Master of Law (LL.M.) degree from University of Cambridge