Union Law Minister Ravi Shankar Prasad has appended a “Statement of Objects and Reasons” to The Muslim Women (Protection of Rights on Marriage) Bill, which has been tabled in Parliament. In the statement, he claims that the Supreme Court’s act of setting aside talaq-e-biddat or triple talaq – the practice by which Muslim men divorce their wives by saying the word talaq three times in one sitting – in August has not worked as a deterrent and “it is, therefore, felt that there is a need for State action to give effect to the order of the Supreme Court”.
This “state action” that he is referring to is the criminalisation of triple talaq through the Bill placed before Parliament, “in order to prevent the continued harassment being meted out to the hapless married Muslim women”.
However, a brief survey of the provisions of the Bill indicate that the end result of this landmark piece of legislation, if passed in its current form, will be the harassment of Muslim men.
Setting a new precedent
Section 3 gives statutory recognition to the Supreme Court’s ruling in the Shayara Bano case, by mandating that any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal. (Uttarakhand resident Bano is the original petitioner in the case). Section 4, however, goes a step further and directs that whoever pronounces talaq, referred to in Section 3, upon his wife shall be punished with imprisonment for a term that may extend to three years.
The criminalisation of behaviour or practices stemming from or associated with religious conventions is not without precedent. The Dowry Prohibition Act, 1961, and the Commission of Sati (Prevention) Act, 1988, are two instances of penal laws designed to combat abhorrent behaviour by Hindu men and their families. The criminalisation of conduct relating to or arising from marital relationships is also not uncommon: there are several provisions in the Indian Penal Code dealing with “offences relating to marriage”.
That being said, Section 7 of the Bill makes a radical departure from the aforementioned provisions in the Indian Penal Code by making the pronouncement of triple talaq a cognizable offence (meaning that the police can make an arrest without a warrant).
Public prosecution of private wrong
When an offence is non-cognizable, it is considered a private wrong and prosecuting the offender is left to the initiative of the individuals actually aggrieved by the offence. Once the aggrieved individual files a complaint before a magistrate, it is up to the court to direct the police as to whether they should investigate the matter.
The rationale underlying such restrictions when it comes to offences relating to marriage is that the world at large should not be allowed to prosecute an errant husband, especially when the aggrieved wife has no desire to see him punished. This is borne out by Section 376B of the Indian Penal Code, which makes the heinous act of a husband raping his wife while they are separated a cognizable offence that can be prosecuted only if the wife or her relatives lodge a complaint.
Similarly, when a man commits bigamy under Section 494 of the Indian Penal Code, the police can only proceed to investigate if his first wife or her relatives file a complaint before a magistrate – the second wife has no standing. As a matter of public policy, offences relating to marriage, as long as they do not result in any physical harm to the wife, are made non-cognizable and subject to judicial oversight to prevent third parties from seeking redressal of wrongs committed between two private parties.
The triple talaq Bill removes this much needed layer of judicial oversight when it comes to Muslim men, for by making the offence cognizable, it gives police officers the power to conduct an investigation without bringing it to the notice of the concerned magistrate forthwith.
Demonising Muslim men
If the triple talaq Bill is passed, a Muslim husband will be prosecuted without his wife’s consent for pronouncing triple talaq, whereas a Hindu man who rapes his wife while they are separated will not be prosecuted unless his estranged wife agrees. This anomaly is a result of the government introducing a Bill that, much like the act it seeks to criminalise, is hasty, impulsive and cruel.
The fact that the government did not consult the All India Muslim Personal Law Board – a non-governmental organisation that oversees the application of Muslim personal law in the country – before drafting the Bill further bolsters the argument that little or no thought has been paid to the consequences of criminalising instant triple talaq. Bebaak Collective, a women’s rights group that played a pivotal role in the Shayara Bano case, has warned that “the move to imprison Muslim men will add to the prevailing insecurity and alienation of the Muslim community”.
Perhaps this is the ulterior motive behind the Bill, and not, as the government claims, “gender justice and gender equality of married Muslim women”. The onus now shifts to our parliamentarians to examine the Bill, and one hopes they will act with the same alacrity that they did when they summoned Sanjay Leela Bhansali in November in connection with his film Padmavati, which was facing protests, and asked him to assure them that the honour of a Hindu woman would not be besmirched.
Then again, when it comes to the demonisation of Muslim men, as with the release of Padmavati, all bets are off.
Abhishek Sudhir is the founder of Sudhir Law Review, a legal education website.