Arbitrary and irrational 

Arbitrary and irrational 

Context

Bill to criminalise triple talaq

Backdrop

• On August 22, 2017, a five judge Bench of the Supreme Court, in a majority 3:2 judgment, set aside the practice of Talaq-e-Biddat (triple talaq)
• The minority view of Chief Justice J.S. Khehar, who led the Bench, and Justice S. Abdul Nazeer was that triple divorce is a valid form of divorce

Author’s contention

The proposal by the government to introduce a Muslim Woman Protection of Rights on Marriage Bill in the winter session of Parliament — wherein a husband who resorts to instant triple talaq can be jailed for up to three years and fined — needs closer scrutiny as there is stigma attached to criminal conviction

• If Parliament wants, it can enact a law on it. But nowhere in its judgment has the top court said that triple divorce is to be criminally punished
• No need for a separate law: In the Supreme Court judgment, the majority of three judges had already “set aside” triple divorce. Under Article 141 of the Constitution, this is the “law declared by the Supreme Court”. Hence there is no need for any separate law as triple divorce no longer dissolves marriage

Concurrent list

Parliament has the power to legislate with respect to personal laws under Entry 5 of the Concurrent List

Article 141

It states that

‘The law declared by the Supreme Court shall be binding on all courts within the territory of India’

Why a new law is not necessary?

• Criminalising doesn’t helps: The belief that if wrongful conduct becomes a crime, people will refrain from indulging in it is both erroneous and not been substantially proved by any authentic empirical research
• No legitimate state interest affected: Since triple divorce no more dissolves marriage, its pronouncement is inconsequential and in no way adversely affects either the wife or society. Thus no legitimate state interest is adversely affected

Punishing for mere utterance

Author states that,

Are we going to insist on mensrea (guilty intention) or make triple divorce a ‘strict liability’ offence which would mean that even if the person did not intend to divorce his wife, he would be punished for mere utterance of the word “divorce” thrice?

Difficulty in proof

Since the cardinal principle of criminal law is presumption of innocence and the burden of proof is always on the prosecution which has to prove the case beyond a shadow of a doubt, how will the poor wife prove instant triple divorce if declared orally when no one else was around? The husband will be entitled to acquittal claiming the benefit of doubt

Who will pay compensation?

Since the law makes the husband liable for the payment of maintenance, how will he pay maintenance if he is sent to jail?

Relevant question

On what basis has the Bill provided for imprisonment of three years?

Under IPC
For what crimes does the IPC reserve imprisonment of three years?

• Section 148, which is on rioting and armed with deadly weapon, has a provision of three years or with fine, or with both
• Section 153A, which is on promoting enmity between different groups, is also for three years, which may extend to five years and shall also be liable to fine
• Section 237, which punishes the import or export of counterfeit coin, has the same term
• Section 295A: It is the same again with Section 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs)

Smaller fines

• Section 304A (Causing death by negligence)
• Section 147 (punishment for rioting)
• Section 171E (Punishment for bribery)
• Section 269 (Negligent act likely to spread infection of disease dangerous to life)
• Section 272 (Adulteration of food or drink intended for sale)
• Section 295 (Injuring or defiling place of worship with intent to insult the religion of any class)
• Section 290 (Punishment for public nuisance in cases not otherwise provided for)
• Section 337 (Causing hurt by act of endangering life or personal safety of others)
• Section 341 (Punishment for wrongful restraint)
• Section 420 (Cheating and dishonestly inducing delivery of property)

All the above have much smaller terms of imprisonment and fines

These serious crimes are in no way comparable to an individual who instead of taking three months to divorce his wife, just took a minute in making all three pronouncements. Such divorces generally happen out of extreme anger when a person really does not know the nature and quality of his act, and already an exception from criminal liability

Arbitrary penalty

Thus imprisonment of three years for triple divorce is excessive, arbitrary and irrational, and violative of Article 14

Conclusion

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