Why Criminalise? 

Why Criminalise?

Context

Centre’s draft law on triple talaq misreads the Supreme Court judgment 

Ill-conceived

• The Centre’s move to criminalise instant triple talaq (talaq-e-bidat) appears to be ill-conceived and thoughtless
• It completely ignores the significance of the August 22, 2017 Supreme Court judgment which rendered legally inutile the use of the formulaic expression “talaq-talaq-talaq” (in any of its forms) as a means to instantly dissolve a Muslim marriage. 

Question Raised

Therefore, the question that needs to be answered is: When talaq-e-bidat does not result in the dissolution of the marriage, can its pronouncement be criminalised?

nullum crimen sine iniuria

The authors of the draft law seem to have given scant attention to one of the fundamental maxims of criminal jurisprudence, nullum crimen sine iniuria, which states that no person shall be punished for an act that does not prove to be significantly harmful to anyone.

The Reasoning

Talaq-e-bidat pronounced after August 22 does not in any manner harm or violate the rights of the wife unless the husband refuses to perform his conjugal duties or forces his wife to leave the matrimonial home by fraudulently claiming that his triple pronouncement has broken the marriage.

An option for men who want to keep their marriage intact

• It has been observed that most husbands who resort to talaq-e-bidat do so in a fit of emotional rage, or out of a misunderstanding of Muslim law
• In the former case, men express profound regret within a short time as irrevocable divorce was never the original intention of their outburst. Such men will heave a sigh of relief when they realise that, thanks to the Supreme Court, their marriage is intact.

Punitive measures might prove counter intuitive results

• But if they are stigmatised with punitive imprisonment the chances of their marriage disintegrating are very high and the proposed law will end up being the bane of their lives.
• Even in the case of men who think instant talaq irrevocably breaks the marriage, their misunderstanding is the result of reliance on sectarian fatwas which reiterate the validity of talaq-e-bidat despite the SC having ruled that it is “manifestly arbitrary” and not an integral part of Islam for being un-Quranic.

Sectarian Fatwas

• These fatwas are invariably based on traditions of questionable authenticity and an innovative ruling of Caliph Umar, which is supposed to have legitimised instant talaq to deter men from adopting this undesirable practice
• Paradoxically, it is also claimed that the Caliph flogged men when they resorted to instant talaq.

But this anecdotal evidence lacks credibility

• First, why would the Caliph legalise the very misogynist practice he was trying to abolish? It would have made sense if he had simply derecognised the annulment of marriage through talaq-e-bidat
• Second, if he was going to inflict a punishment for instant divorce why did he legalise it?

Verification needed

Keeping in mind the attribution of zaif (weak) and mauzu (fabricated) reports to the Prophet himself, Muslim theologians must verify if the ruling ascribed to Caliph Umar was made up to justify a retroactive legislation in favour of talaq-e-bidat.

Blind Faith

On the contrary, they appear to have full faith in it

Most Muslim organizations in favour

And this could be the reason why most Muslim religious organisations have not opposed the Centre’s intention to criminalise instant talaq. Indeed, even before the August 22 judgment, the All India Muslim Personal Law Board (AIMPLB) had proposed social boycott as punishment for resorting to talaq-e-bidat

The Justification

The justification of this punitive measure is based on the belief that the pronouncement of three divorces in one sitting results in the commission of a sin, namely, the irrevocable dissolution of marriage.

Dead Letter

But as explained above, when the SC “set aside” instant triple talaq, it meant that this medieval formulation is now a dead letter and will no longer be effective in annulling a Muslim marital contract. And this is the law of the land today under Article 141.

A cognisable offence

Therefore, making the mere pronouncement of instant talaq a cognisable offence would not only negate the apex court’s judgment, it would amount to unwittingly aligning with the AIMPLB’s anachronistic view that talaq-e-bidat breaks the marriage irrevocably.

Suggestions

Given these facts, the right approach would be to launch a massive campaign across India to publicise the Supreme Court judgment, and simultaneously find ways to stop Muslim theologians from issuing misleading fatwas on talaq

Conclusion

Criminalising acts that do not result in the commission of crimes will be legally untenable.