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Ejaz Maqbool and Akriti Chaubey
It is often said that haste makes waste. This is the case with the recently promulgated Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 (Triple Talaq Ordinance).
The Ordinance, though promulgated with the object of promoting the welfare of Muslim women in general, is plagued by hasty drafting that has watered down the purported good that it sought to do. The haste shown in promulgation of the Ordinance makes one question whether such an urgency in fact existed, which compelled the Executive to completely by-pass the regular procedure of enacting a legislation.
It is settled law that an ordinance can be promulgated only if there is a compelling urgency requiring immediate action in order to check a certain situation that may have arisen when both Houses of the Parliament are not in session. Needless to say, no such exigent situation has been demonstrated till date, that actually constrained the Executive to hurriedly promulgate the said Ordinance. Particularly when instantaneous Triple Talaq had already been declared unconstitutional by the Supreme Court vide its judgment dated August 22,2017 rendered in Shayara Bano v. Union of India & Ors.
It is relevant to note that no empirical data has been produced or even referred to, in order to establish that there was rampant pronouncement of Talaq (having the effect of instantaneous divorce) and that such incidents had steeply risen, justifying the Executive’s knee jerk reaction even though the Winter Session of Parliament was only about two months away.
The Ordinance defines Talaq as ‘talaq-e-biddat’ or any other similar form of Talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband. A bare perusal of the Ordinance reveals that it suffers from internal inconsistency wherein on one hand it seeks to protect the rights of married Muslim women and ensure that they are not unilaterally and arbitrarily divorced in a moment, but on the other hand by criminalizing the utterance of Triple Talaq (leading to instantaneous divorce), the very possibility of reconciliation between the husband and wife is closed.
Section 3 of the Ordinance declares that pronouncement of Talaq (having the effect of instant and irrevocable divorce) is void and illegal. As mentioned above, the Hon’ble Supreme Court had already declared such a pronouncement invalid and this section is redundant in as much as reiterates a settled position of law.
Section 4 prescribes a punishment of imprisonment of upto 3 years along with fine for pronouncement of Talaq (having the effect of instant and irrevocable divorce).
It is relevant to note that this punishment is extremely disproportionate and excessive, particularly when the pronouncement is itself void and does not lead to any consequence whatsoever, let alone resulting in divorce. The disproportionality of the punishment prescribed is further evident from the fact that lesser punishment is prescribed for many offences which are far more grave, like Rioting (Section 147 of IPC – punishment of imprisonment upto 2 years or fine or both), Bribery (Section 171E of IPC– punishment of imprisonment of upto 1 year or fine or both), Adulteration of food or drink intended for sale (Section 272 of IPC– punishment of imprisonment of upto 6 months or fine of Rs. 1000 or both), Punishment for causing death by negligence (Section 304 A– punishment of imprisonment of upto 2 years or fine or both), Rash driving or riding on a public way (Section 279– punishment of imprisonment of upto 6 months or fine of Rs. 1000 or both) etc.
Further, prescribing a punishment of imprisonment of upto 3 years for a pronouncement of Talaq having the effect of instantaneous divorce, when the same pronouncement can be lawfully made within a period of three months without attracting any penal consequences whatsoever, is not only enormously stringent, but is completely arbitrary. Moreover, the fact that desertion has not been criminalized yet, only furthers the fact that there were no compelling circumstances whatsoever to promulgate the present Ordinance.
Pertinently, the Ordinance fails to mention any reasons for imposition of such a grave punishment and turns a complete blind eye to the fact that once the husband is arrested for a mere pronouncement, the marriage, though not dissolved, would undergo irreconcilable differences, particularly when the husband is put behind bars due to a complaint by the wife or her relatives.
Section 5 entitles a married Muslim woman on whom Talaq is pronounced to receive subsistence allowance, as may be determined by the Magistrate, for her and her children. Though the provision intends well, and aims to make a provision for the sustenance of the woman and her children, it does not consider as to how such a provision will be implemented, particularly if such man belongs to an economically weaker section of society. He would be unable to provide such a subsistence allowance, as he will be unable to undertake any work/job while being imprisoned.
Section 6 of the Ordinance provides that notwithstanding anything, in the event of pronouncement of Triple Talaq, the wife shall be entitled to the custody of her minor children. Such a wide, all-encompassing provision, which leaves no scope whatsoever for the custody of the children to be given to the husband or the grandparents or any other relative, is arbitrary as it does not provide for any exceptional circumstances.
It is relevant to note that whenever the question of custody of children is being adjudicated upon by Family Courts, welfare and interest of the children is given paramount importance. However, the present Ordinance does not even enlist the interest of the children and makes a sweeping provision awarding custody to the mother. There might arise circumstances when it is in the interest of the minor children that they be given in the custody of someone other than their mother, for instance when the mother is of unsound mind or when the mother is not willing to keep the children or when the minor children are unwilling to reside with the mother. However, the Ordinance does not even envisage the existence of any such exceptional circumstances.
Further, Section 7 of the Ordinance makes the pronouncement of Talaq (having the effect of instantaneous divorce) a cognizable and a non bailable offence. Notably, even offences like Kidnapping (Section 363 of IPC), which are far more grave, are bailable. Some other offences such as causing death by negligence (Section 304A of IPC), Concealment of birth by Secret Disposal of Body (Section 318 of IPC), rash driving or riding on a public way (Section 279 of IPC), Bigamy (Section 494 of IPC), Marriage ceremony fraudulently gone through without lawful marriage (Section 496 of IPC), are also bailable, which show that such making the pronouncement of instantaneous Talaq non-bailable is excessive.
Section 7 also makes the offence cognizable if an FIR is lodged either by the woman in question or her relatives. As mentioned above, the offence has been made non-bailable and it has been stipulated that bail shall be granted only after hearing the married Muslim woman upon whom Triple Talaq is pronounced. The offence has been made compoundable at the instance of the married Muslim woman upon whom Talaq is pronounced.
Notably, the Ordinance departs from the settled principles of criminal law when it provides that no bail shall be granted without hearing the Muslim woman upon whom Talaq is pronounced. It completely ignores the fact such a provision may be rampantly misused and even otherwise, there may be cases where the Muslim woman is unable to appear before the Learned Magistrate. In such cases, the detained husband will suffer for no fault even if reasonable grounds for grant of bail exist. Such a procedure is not fair and does not withstand the test of Article 21. It is settled position that the procedure for grant of bail must always maintain a balance between the societal interest vis a vis personal liberty while adhering with the fundamental principle of criminal jurisprudence that the accused is presumed to be innocent until found guilty. However, the present Ordinance fails to maintain this balance.
It is further relevant to note that the Ordinance does not define marriage, and it is implied that the definition of the said term has to be derived from Sharia Law wherein ‘Marriage’ is regarded as a civil contract. Talaq is nothing but a repudiation of such a civil contract. The Ordinance creates a peculiar situation by not only criminalizing such form of repudiation but also by imposing a standard of strict liability, as no element of mens rea has been mandated in the provisions of the Ordinance and mere pronouncement has been made an offence.
The issues highlighted above provide a view of the problems that may arise when the said Ordinance is enforced. In fact, the Ordinance which attempted to promote the welfare of Muslim women so that they are not subjected to arbitrary instant divorce and that their marriage subsists irrespective of such a pronouncement, miserably fails to do so. By providing for imprisonment of the husband in case of pronouncement of Talaq, the Ordinance fails to ensure cordiality in marriage, and would inevitably result in the irretrievable breakdown of the marriage. It appears that in its unexplained haste of promulgating the present Ordinance, the Executive lost sight of the objective it sought to achieve.
Lastly, as mentioned above, the Ordinance creates a peculiar situation by making pronouncement of Talaq a crime and not noticing the larger problem of ‘desertion’ which adversely affects all communities in India. Perhaps if a legislation is brought to deal with the menace of desertion, it would yield better results in uplifting the status of women across all communities, without subjecting the Muslim minority population to an uncanny feeling of being singled out.
The authors are Advocates of the Supreme Court of India.
Disclaimer: The views expressed in this article are of the author and Bar & Bench does not necessarily hold the same views. Bar & Bench does not take responsibility for the same.