The BJP government’s renewed push for the uniform civil code, and Prime Minister Narendra Modi’s recent remarks about instant triple talaq, have again put a practice criminalised four years ago under the media glare. But what’s missing from much of the debates are crucial questions surrounding the triple talaq law – which the government had called a “historic reform” for the emancipation of Muslim women.
The opposition, which had questioned the need for the practice to be made a criminal offence considering the risk of it further depriving abandoned Muslim women of a safety net, has now adopted silence. And no party seems keen to accommodate the triple talaq law in the 2024 campaign.
With the Hindu right and pro-government voices tomtomming UCC as another tool to tackle social ills among the Muslim community, it becomes pertinent to examine if the triple talaq law has achieved its stated objective, and whether instant triple talaq has even become a legally recognisable crime.
The Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalises the practice of instant triple talaq amongst Muslims, was enacted two years after the Supreme Court declared the practice of instant triple as unconstitutional and not part of Islam in 2017. Section 2 (c) of this Act defines “talaq” as talaq-e-bidat or any similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband. And Section 7 of the law makes the pronouncement of talaq in this manner a criminal, cognisable and compoundable offence with a maximum of three years of imprisonment and a fine.
Is instant triple talaq a crime against Muslim women?
While the media has reported several such incidents, this author could find no government data on cases registered under this law. The National Crime Records Bureau’s latest report, ‘Crime in India 2021’, does not record any such incidents or cases under the category of ‘crime against women’. The State Crime Records Bureaus, including those in Telangana, Andhra Pradesh, Delhi, Uttar Pradesh and Rajasthan have not reported any such incidents either.
Even the Telangana Police Women Safety Wing, which runs a number of Bharosa Centres in around 10 districts of the state and is known for effective financial, legal, psychosocial, emotional support for women victims of domestic violence, divorce and abandonment, does not record any data on crimes registered under this particular legislation.
This means that the triple talaq law does not feature among the women-related laws enlisted under the category of ‘crime against women’ or the list of relevant legislation.
For instance, the Act or any information associated with its procedural aspects cannot even be found on the websites of the National Commission for Women, Ministry of Women and Child Development, and the Ministry of Minority Affairs. There is not even a link to external pages on these sites that could lead to the related ordinance or the law.
Legal complications
There are at least three major complications surrounding the triple talaq law.
First, it cannot be considered a proper constitutional law without the codification of Muslim personal laws, or an amendment in the Dissolution of Muslim Marriages Act, 1939, which deals with petitions for dissolution of marriages and has no mention of the triple talaq law.
In criminalising the practice of instant triple talaq, the triple talaq law also contradicts extra-judicial mechanisms allowed in the form of Darul Qaza – the extrajudicial arbitration centres which are often the sole authority on many Muslim marriages and are run by the All India Muslim Personal Law Board.
Section (2) of the Muslim Personal Law (Shariat) Application Act, 1937, too has provisions dealing with marriage and dissolution of marriage.
And, it must be noted that the triple talaq law only invalidates one of the multiple unilateral and mutual forms of talaq.
The triple talaq law also lacks a Bare Act – which is an essential text containing the exact wording of laws – and this complicates its use for legal practitioners even though it was formed under Article 13 of the Constitution.
Consider the example of Ilma*, a woman lawyer who had filed a case against her husband in Delhi over instant triple talaq in 2020. She said that her husband was granted anticipatory bail within days just because of the unclear status of the law and procedures associated with it.
Additionally, the triple talaq law brought a matter like divorce, from the domain of civil to criminal jurisdiction. Section 7 of the law makes pronouncement of talaq a cognizable and compoundable offence, which is highly problematic. A cognizable offence comes under the category of serious crimes similar to murder, rape, theft, kidnapping, dowry death, etc. under Section 154 of the Criminal Procedure Code.
Thirdly, no rules or regulations have been developed to assist the police department and
judiciary in cases filed under the triple talaq law. The only procedure which aids to some extent is a part of the judgment of the Shayara Bano case. But even this case does not have any reference to the criminalisation of instant triple talaq and only helps women challenge the practice before courts.
All this adds to ambiguity regarding the procedures of the law amongst police officials, law practitioners and magistrates. Even the victims do not know how to approach a police station and what the implications would be.
No direct FIR even in many dowry cases
It is important to mention here that an FIR is not registered directly even in cases of domestic violence or even in a case under the Dowry Prohibition Act unless the matter is of absolute urgency. The complaints are registered under Daily Diary and are first referred to the family courts for settlement with a long process of reconciliation and arbitration, which may take up to three to six months.
According to Ritu Dubey, an advocate on record in the Supreme Court who works closely with the All India Muslim Women Personal Law Board, the ideal steps under the triple talaq law too should follow a sequence where after registering a case under DD, the concerned authority at the police station should refer the disputing couple to family court for the process of reconciliation.
Dubey argues that this is an essential aspect of divorce. If the husband cooperates and is ready to take his wife back or divorce her in a dignified manner ensuring financial security and custody-related issues, then the matter be dismissed at the wife’s behest.
On the other hand, if the husband does not cooperate or does not agree for any dignified settlement, an FIR may then be filed for further action. Even in cases of imprisonment, the crime is compoundable, meaning the accused can get bail or the case can be dissolved at the behest of the wife or her blood relatives and at the discretion of the concerned magistrate if the husband agrees for settlement and if the grounds are reasonable.
While these steps may contain enough rationale to resolve a disputed marriage without much hassle, they cannot be followed as the procedure is not clear even under different clauses of the triple talaq law.
A coordinator of the Mahila Panchayat in Delhi’s Shaheen Bagh said an FIR in a case of instant triple talaq is registered only if a resolution is not reached due to non-cooperation from the culprit’s side during the process of conciliation and arbitration through women’s cell or the family courts. And the legal action that follows depends on the nature of offence.
Even Zakia Soman, the founding member of the Bharatiya Muslim Mahila Andolan and a scholar who was among the most prominent voices in the struggle against instant triple talaq, earlier highlighted that the triple talaq law does not translate well on the ground as the police and judiciary are often ill-informed.
There is no doubt that the law has proven to be highly obscure and full of contradiction from its drafting stage. It focused on criminalisation rather than reconciliation or the dissolution of marriage in a dignified way, which is a right under other divorce laws. But, even with regards to the punishment, the non-provision of the administrative mechanism required for the functioning of the triple talaq law to achieve its stated goals turns out to be a complete failure.
This highlights the apathy of the political actors towards any constructive legislative reforms against social ills, let alone the promise of gender justice. The triple talaq law, which was brought up so enthusiastically against historical injustice, does not even establish the practice of triple talaq as a legally recognisable crime against Muslim women.
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