Posted on: September 11, 2020 Posted by: admin Comments: 1

Author :  Aarya Kumar Jha, Student at ICFAI Law School, Hyderabad

INTRODUCTION

Marriage in Islam is a civil contract and divorce is considered as the natural outcome of marital rights. Under Muslim law, Mulla has divided the practice of divorce into 3 parts or levels: [1]

The marriage may be dissolved in one of the following ways under Mahomedan law.

  • By the will of the husband without any interference of a Court;
  • By mutual consent of the husband and wife without the interference of the Court;
  • By a judicial decree at the suit of the wife or husband.

Divorces under these three parts or levels are known as talaq, mubarat, and faskh. When the divorce takes place at the instance of the wife then it is known as called khula.

INSTANT TRIPLE TALAQ AND INDIAN JUDICIARY

The attitude towards the practice of instant triple talaq has always been critical. In Mohd. Ahmed Khan v. Shah Bano Begum and Ors.[2] Supreme Court specifically mentioned that the triple talaq cannot take away the maintenance right of a divorced Muslim woman who is not in the condition to maintain herself or her children when she is disowned or divorced by her husband. The Supreme Court applied Section 125(3) of Cr.P.C. on Muslims too without any discrimination.

There are various High Court judgments that provide us the different elucidations about the practice of instant triple talaq in India. In Jiauddin Ahmed v. Anwara Begum, [3]The court held that Muslim law does not allow an instant and irrevocable talaq without any propitiations in between the pronouncements.

In a landmark judgment of Shayara Bano v. Union of India,[4] the petitioners challenged Section 2 of the Act,   Muslim Personal Law (Shariat) Application Act, 1939. The Constitution Bench by a majority of 3:2 declared the practice of instant triple talaq is not acceptable under any law. Among the majority, the two learned judges have declared the practice of instant triple talaq as unconstitutional under section 2 of the Act while the other learned judge declared it as against the Islamic Law.

According to the Quranic injunction, triple talaq must be on reasonable grounds and if there is any requirement arises there must be mediation facilitated by two mediators one from each side of the family.

When instant triple talaq was struck down by the Court in the Shayara Bano case in 2017 the court guided the Legislature to come up with a law in this matter. Subsequently, the Bill Muslim Women (Protection of Rights on Marriage) Bill was passed in both the Houses and became the Act, declaring the practice void and illegal under Section 3, Muslim women (Protection of Rights on Marriage) Act, 2019 and provides punishment of imprisonment which may extend up to 3 years and shall also be liable for fine under Section 4, Muslim Women (Protection of Rights on Marriage) Act, 2019 of this Act.

STATUS OF MUSLIM WIFE

The practice of triple talaq is accepted and prevailing in our society for hundreds of years. By declaring the practice void by law will not be able to make any immediate effects and changes effectively. However, the problem is not that simple. The woman who has kept the idea of divorce by a pronouncement of triple talaq may think it haram to live with her husband despite it is not being recognized as divorce by law. So a reform must come in personal laws within the religious community. In the case of Harvinder Kaur v. Harmender Singh Chaudhary,[5] Delhi High Court observed that introducing Constitutional Law in a matrimonial home is the same as “introducing a bull in a china shop.”

The Act might encourage husbands to wilfully leave their wives rather than the pronouncement of triple talaq. Because of the status of the disempowered woman, the family members or relatives may also be unwilling to take her back as she can’t marry again to anyone else.

MAINTENANCE AND CUSTODY

Section 5 of the Act[6] empowers the woman for receiving the subsistence allowance for her and dependent children as determined by the Magistrate when the triple talaq has been pronounced. The term ‘Maintenance’ means the amount of money required to continue living according to a person’s status in the society while the ‘Subsistence Allowance’ defines the minimum amount required to meet the expenses of day-to-day living.

However, the provision is without preconception to the generality of provisions contained in any other law, which means the women are still free to initiate the proceedings for maintenance under Section 125. Cr.P.C, 1973, A married Muslim woman is also entitled to maintenance known as Nafaqah, but the condition exists whether she can maintain or not. Hence it is not clear what is supposed to be for getting the subsistence allowance in the given section.

The question here arises that after punishing the husband for imprisonment and women for getting subsistence allowance, the husband will be in jail, then when does the proposed allowance will come?

According to Section 6 of the Act, [7]A married Muslim woman is entitled to custody for her minor children after the pronouncement of triple talaq. Hence, she is entitled to custody as a matter of law.

Here the question arises about the need for the provision for the custody of a child when no divorce has taken place and the marriage still exists.

Making such provision as mandatory or compulsory is unreasonable i.e. the determination of the custody of a child must be in the hands of courts.  This section doesn’t provide any exceptions and also no proper criteria for determining the custody of the children.

CRIMINALIZATION AND JURISPRUDENTIAL ENGAGEMENT

Section 4[8] deals with the punishment oh the husband. Human conduct is regulated by various means. Civil means are enough to regulate human behaviour. If criminal laws should be retained, we must consider its proper limits.

The primary problem is that the legislature is imposing penal for a civil wrong. Marriage under Islam is a contract and breach should not result in criminal sanctions. Curtailing the liberty of a person should be the last resort.

The state must adopt a minimalist approach in the criminalization of offenses because a stronger justification is required where an offence is made punishable with imprisonment. The act should not be classified as a criminal offence when it is groundless.  Joseph Shine v. Union of India.[9]

In the case of instant triple talaq criminalizing seems to be groundless because the act is void in nature. Putting the husband behind the bars might aggravate the marital discord and thus discouraging the wife from reporting the incident. The practice of instant triple talaq can be checked by civil means. Criminalization can be the last resort when the civil remedies are exhausted.

The marriage still exists in the eyes of law as the pronouncement is declared void and illegal.[10]

 There is a possibility that imprisonment would lead to differences between the couple also leads to divorce his wife with the proper procedure. The fear of such adverse consequences would describe women from reporting such incidents. The punishment of 3 years has been prescribed for much graver offences under the Indian penal code which includes sedition, rioting arms with deadly weapons, etc. Imposing such a punishment for an act does not seem justified.

Our Constitution grants the ‘Right to Equality’[11] but the Act discriminates between Hindu and Muslim males as it makes divorce a criminal act while leaving it as a civil action for the Hindus. It must be understood that the equality conferred by Article 14 applies to equal not too unequal. There is an intelligible differentia between the Hindu and Muslim in regard to the practice of divorce. The Hindu law restricts unilateral divorce. The grounds of divorce under the Act [12] are under circumstances of cruelty, adultery, desertion, or the consent of both spouses.

The aim of the law is to protect the rights of the unempowered female section of the society. The major difference between the Hindu and Muslim personal laws to be the detriment of the wife is the exception to Section 494 of the IPC.

Section 494 of the Indian Penal Code, 1860 punishes Bigamy and there are no exceptions on the pretext of religion and due to the constitutional guarantee of freedom to practice religion under Article 25, Muslim men are treated as an exception to this provision and there are some instances of bigamy by the Muslim husbands even in the present day.

 An instant triple talaq is a form of cruelty on the Muslim wife. It must be penalized under the Section 498-A of the IPC and as per the definition of Domestic violence given in the Act, [13] pronouncement of triple talaq as a ‘verbal and emotional abuse’ under Section 3 of the Act, thus penalizing the husband for the same.

Any man resorting to unilateral divorce should be penalized, imposing a fine and punishment as per the provisions of the Act,[14] and anti-cruelty provisions of IPC, 1860 especially Section 498. Enticing or taking away or detaining with criminal intent a married woman.

The practice is considered as irregular and bad in theology but has been continued from centuries and no hope exists for its change as there are objections against banning it. Under Section 7,[15] the discretion to initiate criminal proceedings lies completely in the hands of the Muslim wife or her relatives by blood or marriage. This section provides the discretionary power to the women’s of society.

CONCLUSION

The Act consists of inconsistent provisions and also they are contradictory in nature. There are various forms of talaq under the Muslim law but the unapproved form prevails in the society.

Muslim women became helpless as the talaq can be done easily without her will or consent. The Act at one place empowers the women who are not empowered and at the other instance, the women are left with nothing.

Marriage in Islam is considered a civil contract so, how the punishment can be similar to the criminal offense?

This needs to be amended or changed.

Under the Indian Penal code, 1860 the three years imprisonment has been given to grave offences like rioting with armed forces, etc. So, merely a divorce that is void and illegal and also a civil contract is it fair to give the husband the imprisonment for three years, and also the husband will give the subsistence allowance to the wife. This totally contradicts the provisions in this Act and under IPC, 1860.

The question arises if the husband is sent to imprisonment by the wife then what is the guarantee that after being free from jail the husband will not give the divorce with proper proceedings or he will live with the wife happily?’

Section 4 deals with the subsistence allowance. Here the question arises if the husband will be in jail then who will provide subsistence allowance and when the allowance will be received by the wife?

Section 6 deals with the custody of a minor, but the marriage still exists, then why the custody of a minor being given only to the women, not to the men or his family. What are the provisions and exceptions to this Section?

The Act also discriminates between Hindu and Muslim males as it makes divorce a criminal act in Muslims while leaving it as a civil action for the Hindus. So this needs to be altered.

The Legislature must take an overview of the conditions of Muslim women before altering provisions in the Act. There is the need to amend the provisions which provide adequate information. No such punishment which is given for the criminal acts should be given to the husband for a civil wrong. The conditions, exceptions, and specific grounds must be provided for the custody of the minor to the women.

FOOTNOTES

[1] Mulla, Principles of Mahomedan Law, Chapter XVI (LexisNexis India, 20th Edn., 2013).

[2] AIR 1985, SCR (3) 844

[3] [(1981) 1 GLR 358]

[4] [2017 (9) SCC 1]

[5] AIR 1984 Delhi 66

[6] Ibid

[7] Ibid

[8] Ibid

[9] [2018 (11)]

[10] Section 3, the Muslim Women (Protection of Rights on Marriage) Act, 2019.

[11] Article 14, Constitution of India, 1950

[12] Hindu Marriage Act, 1955

[13] Protection of Women from Domestic Violence Act, 2005

[14] Protection of Women from Domestic Violence Act, 2005

[15] Section 7, Code of Criminal Procedure, 1973

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