With President Ram Nath Kovind’s assent to the Muslim Women (Protection of Rights on Marriage) Bill 2019, the law which makes the practice of instant divorce among Muslims a punishable offence, came into force on 1st August 2019. The Act reminds us a Mullah story. Once, Nasiruddin Mullah was approaching a foreign country. The soldiers guarded the borders told him that the law in the country is very strict as even anyone say lies should be sent to gallows. Mullah was unmoved and entered the foreign land. The soldiers asked him: “where are you going to?” Mull promptly replied “to gallows’’. It was a lie and Mullah was arrested and produced before the judge. The judge was perplexed as if Mullah was convicted and sent to gallows he would turn innocent as he said true, but then he should be let go scot-free; but then again he would be accused of saying lie. Thus Mullah exposed the futility of law. The present Act is like the “Not-say-lie’’ law in the story which is impractical and Draconian.
The Act is a Draconian piece of legislation. The Supreme Court has clearly pointed out, in Shayara Bano’s case, that the triple talaq is void and null having no legal effect at all. Then punishing a Muslim man for merely uttering an empty with no legal effect with three years’ imprisonment is nothing but Draconian. It is against the established Doctrine of Proportionality in Criminal Jurisprudence. In criminal law, the principle of proportional justice is used to describe the idea that the punishment of a certain crime should be in proportion to the severity of the crime itself. Serious crimes like Causing death by rash or negligent act (IPC Sec 304A), Rioting (IPC Sec 147), Injuring or defiling place of worship with intent to insult the religion of any class (IPC Sec 295)- all punishable by two years in jail or fine or both. All these criminal acts have lesser punishment than pronouncing triple talaq. It is arbitrary and excessive.
Actus Reus Non Facit Reum Nisi Mens Sit Rea (conviction of a crime requires proof of a criminal act and criminal intent) is basic maxim of criminal jurisprudence. This principle says that there are two elements to a crime- criminal intent and criminal act. The Supreme Court says that triple talaq has no legal effect and an act causing no harm to anyone could not an actus reus (criminal act). The present Act is criminalising a hollow word. Thus the Act is violating the basic tenets of criminal jurisprudence. There is no rationale to criminalise the practice of talaq-e-biddat and imprison Muslim men. The effect of the Supreme Court’s judgment is that the marriage is legally valid and the persons continue to be lawfully wedded. Now, the Muslim men will be imprisoned thus violating the rights of conjugality of these two persons. Criminalising the husband would also lead to unwanted separation between the couple, against the wishes of the wife.
Furthermore it is Class Legislation. Class Legislation is a statutory enactment which divide the people or subjects of legislation into classes, with reference either to the grant of privileges or the imposition of burdens, upon an arbitrary, unjust, or invidious principle of division, or which, though the principle of division may be sound and justifiable, make arbitrary discriminations between those persons or things coming within the same class. The Supreme Court,in D.S.Nakara v. Union of India (1982) and Madhu Limaye v. Supdt. Tihar Jail Delhi (1975) has clearly pointed out that Class Legislation is unconstitutional and illegal.
In any of the Personal Laws, the desertion of wife by a man is not a criminal offence. Therefore, while the Act aims to criminalise the pronouncement of talaq, in effect, it is only criminalising the act of desertion of a Muslim wife by her husband. Criminalising desertion by Muslim men, which constitutes only a civil offence for men of all other religions, is discriminatory under the Constitution. So the Act is clearly a class legislation that arbitrarily discriminate against a particular class and therefore unconstitutional.
Justice Rohinton Nariman has underlined the civil contractual nature of Muslim marriage in his judgment in Shayara Bano’s Case. Imposing criminal culpability for a breach of civil contractual liability is not good in Jurisprudence. The spouses can regulate their liabilities in Nikkah Nama itself. Since Muslim marriage is a civil contract between two adult persons, the procedures to be followed on its breakdown should also be of civil nature.
The Act does not provide any alternative procedure for Muslim divorce. The judicial route for divorce is not a desirable way. It is expensive and time-consuming. The Dissolution of Muslim Marriages Act 1939 is a clear example for it. The Act of 1939 made fasq, a method of dissolution of Muslim marriage at the instance of wife which was an easier procedure under the Sharia, expensive and cumbersome.
If there is violence within the marriage in addition to the pronouncement of triple talaq, the woman could use the existing provisions of the Protection of Women from Domestic Violence Act, 2005 and Section 498A of the Indian Penal Code. The Act allows for the aggrieved woman as well as anyone related to her by blood or marriage to be the complainant. There is no provision for a relative to seek the consent of an aggrieved woman before filing a complaint.
The Government has made no effective discussion with the stake holders like the All India Muslim Personal Law Board before framing the controversial Bill. The Act is clearly unconstitutional and contrary to the basic principles of criminal jurisprudence. Furthermore it is enacted with mala fides and without due deliberation and consultation. The Act is designed as a Trojan Horse to intrude into the Muslim Personal Law which was hitherto remaining as an invincible fortress.
Faisal CK is an independent researcher with graduation in law and post-graduation in political science. He writes on Philosophy, Law, and Diplomacy.