Divorce as crime: on instant triple talaq 

Divorce as crime: on instant triple talaq 

Context

Triple Talaq

Author’s contention

Author contends that the Centre’s proposal to make instant triple talaq an offence punishable with three-year imprisonment and a fine is an unnecessary attempt to convert a civil wrong into a criminal act

• It is well established that criminalising something does not have any deterrent effect on its practice

Backdrop

By a three-two majority, the Supreme Court has already declared, and correctly, that the practice of talaq-e-biddat, or instant divorce of a Muslim woman by uttering the word ‘talaq’ thrice, is illegal and unenforceable. While two judges in the majority said the practice was arbitrary and, therefore, unconstitutional, the third judge ruled that it was illegal because it was contrary to Islamic tenet

Consequence

Its consequence is that the husband’s marital obligations remain, regardless of his intention in pronouncing it

Sufficient provisions already exist

The All-India Majlis-e-Ittehadul-Muslimeen president, AsaduddinOwaisi, has argued in a letter to the Union Law Minister that

• There is no need for a fresh criminal provision when existing laws, under Section 498A of the Indian Penal Code or provisions of the Protection of Women from Domestic Violence Act, 2005, already allow the prosecution of a husband for inflicting physical or mental cruelty, emotional and economic abuse, and for deprivation of financial resources

Conclusion

Regardless of whether instant talaq would fall under any of these forms of cruelty or domestic violence, criminalising it risks defeating the objective of preserving the husband’s legal obligations, and the payment of maintenance. The Centre would do well to reconsider its draft and limit its scope to providing relief to women, instead of creating a new offence out of a civil matter