Commentary :: Criminalization of Triple Ṭalāq in India: A Dilemma for Religiously Divorced but Legally Married Muslim Women

India’s legislature has criminalized instant divorce (triple ṭalāq) through the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019. This piece of legislation is a result of the Supreme Court judgment in the Shayara Bano case two years ago. In this judgment, the Court declared the practice of triple ṭalāq a violation of Muslim women’s constitutional rights and gave the legislature six months “to consider legislation” regarding triple ṭalāq.

The stated objective of the Act, as its name suggests, is to protect the rights of married Muslim women by safeguarding them from being instantly divorced by their husbands. The Act does so by declaring triple ṭalāq to be “void and illegal” and subjecting the offender husbands to imprisonment of three years and an unspecified fine. The Act ensures that the aggrieved wife’s right to maintenance and custody of minor children is protected. She is entitled to a “subsistence allowance” from her husband for herself and for her children, and she is given the custody of her minor children.

For the Act’s critics, rather than protecting the rights of married women, the Act is intended to prosecute Muslim men. In response to this criticism, the Act’s proponents note that the Act provides the following three safeguards against malicious prosecution:

  • The offense is cognizable only if information is given to the police by: (i) the married woman upon whom triple ṭalāq is pronounced, or (ii) any person related to her by blood or marriage;
  • The offense is non-bailable, but the Magistrate may grant bail if s/he is satisfied that there are reasonable grounds for granting bail after hearing the aggrieved woman;
  • The offense may be compounded by the Magistrate upon the request of the aggrieved woman. This means that she is empowered to stop legal proceedings against her husband should she wish to settle the dispute outside of court. The terms and conditions of the compounding of the offense, however, will be determined by the Magistrate.

The efficacy of these safeguards to limit the prosecution and incarceration of Muslim men will be tested in the near future when the Act comes into force. The more important question to ask at this stage is whether the Act indeed live ups to its name in protecting the rights of married Muslim women? To the dismay of women’s rights activists, the Act does not provide any new rights to Muslim women. They contend that the so-called entitlements of aggrieved women to “subsistence allowance” and “custody of children” provided under the Act are already available under the laws of maintenance, custody, and guardianship of children.

Ironic as it may sound, the Act is likely to further jeopardize the rights of married Muslim women, who, if subjected to triple ṭalāq, will be divorced religiously but remain married legally. Far from enabling them to maintain an existing marriage or to end an unhappy marriage and then to remarry and start a new family, women subjected to triple ṭalāq will be stuck in “limping marriages.” They may be permanently deserted by a husband who is no longer religiously married to them, or if they entered into a second marriage after triple ṭalāq, they could be exposed to the punishment of imprisonment of up to seven years for bigamy under section 494 of the Indian Penal Code. Meanwhile, their “husbands” would have the freedom to enter into another marriage because of the permissibility of polygamy for Muslim men in India. It is indeed unfortunate that neither the Act nor other Indian legal provisions provide any remedy against “limping marriages” to such “half married and half divorced” Muslim women who are already marginalized in Indian society for their being “a minority within a minority.”

It will, however, be an exaggeration to pit uncodified and unofficial sharīʿa against state enforced official law on the issue of triple ṭalāq. After all, Muslim family law in India, known as Muslim Personal Law, is based on judicial precedents of superior Indian Courts rather than classical fiqh book or fatāwā. These courts have already settled the issue of triple ṭalāq by formulating a number of conditions for its validity: a Muslim husband must have a “reasonable cause” to divorce his wife; the divorce must be preceded by reconciliation efforts by two arbiters each representing one party; and the pronouncement of triple ṭalāq must also be properly evidenced in the form of a formal declaration by the husband. (See Iqbal Bano v State of UP AIR 2007 SC 2215; Shamim Ara v State of UP AIR 2002 SC 3551). To effectively enforce these principles, the legislature should have passed a procedural law to provide an institutional mechanism for the process of reconciliation before divorce.

In view of this already existing Indian law, the only contribution of the Act is that it penalizes the pronouncement of triple ṭalāq to create a deterrence against its pronouncement. But will the criminalization of triple ṭalāq save broken marriages by protecting the marital rights of Muslim women? It is important to note that the Act only criminalizes triple ṭalāq and not the ṭalāq itself. In other words, a Muslim husband still enjoys his unfettered right to unilateral no-fault divorce to end his marriage by pronouncing ṭalāq, which becomes effective after his wife completes three menstrual cycles. Does Indian law provide a similar unilateral right to no-fault divorce to Muslim women in order to escape unhappy marriages? The straightforward answer is no. Both the Indian judiciary and legislature have not yet given Muslim women this right, even though their counterparts in a number of Muslim countries have acquired this right more than five decades ago. In neighboring Bangladesh and Pakistan, Muslim women have had this right since 1967 when the Supreme Court of Pakistan acknowledged the no-fault based unilateral right of wives to divorce their husbands on the basis of the principle of gender equality in Khurshid Bibi v Baboo Muhammad Amin PLD 1967 SC 97.

In conclusion, the Muslim Women (Protection of Rights on Marriage) Act, 2019, should be called the Criminalization of Triple Ṭalāq Act, 2019, because penalization of triple ṭalāq is the only contribution this Act makes to existing legal provisions. The protection of the rights of married Muslim women, however, is likely to take more time and legislative effort.

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