Adding law to injury 

Adding law to injury 

Context

New law criminalising triple talaq may not be in best interests of Muslim women. Solution lies elsewhere

Unanswered questions

The court order declaring triple talaq as unconstitutional left many questions unanswered like,

• What if, the judicial pronouncement notwithstanding, a Muslim husband goes ahead and utters the dreaded words “talaq-talaq-talaq”?
• Where does an aggrieved wife turn to for justice?
• Would such an utterance count as a single talaq as enjoined in the Quran? Or,
• had the court verdict rendered these words meaningless, incapable of hurting or harming the wife? Or,
• are these words absolutely irrevocable and the wife becomes strictly prohibited (haraam) to her husband the moment these words are uttered, as the ulema insist?
• If triple talaq is declared illegal what will be a legally valid form of talaq (divorce)?

Criminalising triple talaq

It is in this backdrop that government is planning to bring in on a legislation that will criminalise triple talaq

Reactions

Factions of progressive Muslim community are divided over this new development. Some are calling it as a “necessary deterrent”, while some other have denounced it as “a vicious ploy of the BJP government to criminalise Muslim men”

Pro-criminalisation camp: No one gives triple talaq, no one gets hurt, no one goes to jail

• The pro-criminalisation progressives maintain that the prime intent behind enacting a stringent law is not to punish the offender but to act as a deterrent
• The prospect of three years in jail is necessary, they argue, to warn the Muslim husband that the sword he had so far held over his wife’s head will henceforth hang over his own

Against criminalisation

Those opposed to criminalisation are opposed to the idea “in principle”

• They argues that since marriage is a civil contract, the procedures to be followed on its breakdown should also be of civil nature only
• They favour “civil redress mechanisms and restorative justice to ensure that Muslim women are able to negotiate for their rights both within and outside of the marriage”

Draconian provisions

The draconian provisions of the proposed bill make it unacceptable to accept criminalisation of Triple talaq for several reasons

• The harsh punishment defies the doctrine of proportionality
• Irrespective of the government’s intent three years in prison of the convicted husband will end up penalising the already aggrieved wife and children too. He will be fed, clothed and housed by the jail authorities. But minus his income, who will pay for the needs of his wife and children?
• The draconian punishment cannot but aggravate the already acute insecurity and alienation of the Indian Muslim community — its womenfolk included — under the current regime
• Given the widely acknowledged anti-Muslim bias in a section of the Indian police, where is the guarantee that the new law will not be deployed as yet another potent weapon against Muslim men?

Doctrine of proportionality

In criminal law, the principle of proportional justice is used to describe the idea that the punishment of a certain crime should be in proportion to the severity of the crime itself

What should a victim do then?

All things considered, what would be in the best interests of justice to Muslim women is to invoke a secular law that already exists:

• Protection of Women from Domestic Violence Act (PWDVA), 2005

Definition of domestic violence

• Under the Act, the wide-ranging definition of domestic violence includes any act that “harms, or injures, or endangers the health, safety, life, limb or well-being, mental or physical, of an aggrieved person”
• It protects women against “abuse”, whether physical, sexual, verbal, emotional or economic

Empowering provisions of PWDVA

• The PWDVA was conceived as a law that ensures speedy relief — ideally within three months — to an aggrieved woman: Right to stay in the marital home, protection against violence, right to maintenance etc. What’s more, she is provided the free services of a government-appointed “protection officer”. This saves her lawyer’s fees for which she often has no money
• The real beauty of the PWDVA lies in the fact that while civil in nature, it has a reasonably stringent penal provision built into it. Compliance with the magistrate’s order will ensure speedy relief for the wife and children. For the husband, too, it will mean saving on lawyer’s fees and avoiding the stigma of jail. Non-compliance with the magistrate’s orders will mean imprisonment of up to one year, or fine up to Rs 20,000, or both (Section 31 of the Act)