Ntroduction: Meer LI Ommentaries On Ahommedan AW
Ntroduction: Meer LI Ommentaries On Ahommedan AW
Talaq-e-biddat has been a source of severe oppression and injustice for Muslim women. The practice results in the
unilateral breakdown of a marriage at the whim of the husband. The judicial trend has evolved against the
practice since the courts have, at several occasions, declared the practice to be unacceptable with certain
qualifications. In Shayara Bano v. Union of India, the Supreme Court conclusively struck down this practice.
Subsequently, the Parliament came up with the Muslim Women (Protection of Rights on Marriage) Bill, 2017
which declared the practice as void and illegal. The Bill also makes the practice a non bailable and cognizable
offence and provides imprisonment of three years for the same. The authors critically examine the bill and
conclude that criminalising an act of private nature would have adverse repercussions on the institution of
marriage. Although the Bill might prohibit triple talaq, it seems highly improbable that it would effectively
achieve its objective of protecting the rights of married Muslim women at the same time. The authors suggest an
alternative scheme which would achieve the objective of the Bill while overcoming its limitations.
I. INTRODUCTION
Marriage under the Muslim law is not only a contract but also a sacred covenant.1 It is an
institution which has maintained its sanctity since the earliest time as it is an act of ibadat
(worship) or piety.2 The power of divorce is natural corollary to the marital right.3 Since marriage
is considered to be sacred, its breakdown is considered to be socially unacceptable. Prophet
Mohammad pronounced talaq (divorce by the husband at his will and without the intervention of
court4) to be the most detestable before God of all permitted things.5
The talaq-e-biddat or instantaneous and irrevocable divorce (‘triple talaq’) is one of the modes
under the Muslim law through which a marriage is dissolved. It is pronounced by a declaration
*Eesha Shrotriya and Shantanu Pachauri are 5th Year, B.A., LL.B. (Hons.) students at the National Law Institute
University, Bhopal. We would like to thank our professors, Dr. Debashri Sarkar and Dr. V.K. Dixit for their
valuable suggestions which helped us in gaining a novel perspective on the issue. We are also grateful to our friends,
Mr. Arpit Shivhare, Mr. Prabal De, Ms. Rohini Dayalan and Mr. Udyan Arya for their feedback on the first draft of
the article. We are also indebted to the editorial team of SLR, particularly Ms. Megha Mehta for her continuous
efforts to make the article better.
1 AMEER ALI, COMMENTARIES ON MAHOMMEDAN LAW 1288 (5 ed. 2005).
2 Id. at 1287.
3 Id. at 1551.
4 M. HIDAYATULLAH ET. AL, MULLA PRINCIPLES OF MAHOMEDAN LAW 258 (19 ed. 1990).
5 Ali, supra note 1 at 1552; 2 IBN ABIDIN, RADD AL-MUHTAR ALA AL-DUR AL-MUKHTAR 682 (1 ed. 2012).
Triple talaq has always been a source of severe injustice to the Muslim women primarily because
of its instantaneous and irrevocable nature. This controversy gained more heat after the Lok
Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2017 (‘the Bill’)
declaring the practice as void and making it a punishable offence.8 As the Bill proposed that the
mere pronouncement of triple talaq would be a cognizable and non-bailable offence, it was met
with widespread opposition on the ground that there would be a possibility of its misuse.9
Curtailing the liberty of a person by imprisoning him for the such pronouncement raises
important issues of criminal and constitutional law. Thus, it becomes imperative to deliberate
upon these issues.
This paper examines the provisions of the amended Bill which are same as that of the Muslim
Women (Protection of Rights on Marriage) Ordinance, 2018 (‘the Ordinance’). However, it does
not delve into the procedure followed to bring about the Ordinance. No attempts have been
made to examine the validity of the practice of triple talaq either. Part II gives a brief judicial and
legislative background. Part III analyses whether criminalisation of triple talaq constitutes valid
interference with privacy. Finally, in Part IV, the authors suggest an alternative scheme before
concluding in Part V.
II. BACKGROUND
In August, 2017, the Supreme Court in Shayara Bano v. Union of India (‘Shayara Bano’) for the first
time, set aside triple talaq as a manifestly arbitrary practice.10 The Court held it not to be an
‘essential religious practice’ under Article 25 of the Constitution of India (‘the Constitution’).
However, even prior to this judgment, several High Courts had adopted a critical approach
towards the practice. In Jiauddin Ahmed v. Anwara Begum, the Gauhati High Court analysed the
6 Mulla, supra note 4, at 261.
7 Id. at 262.
8 Sandeep Phukan, Lok Sabha passes triple talaq bill, THE HINDU (Dec. 29, 2017),
http://www.thehindu.com/news/national/lok-sabha-passes-the-triple-talaq-bill/article22319663.ece.
9Mohammed Wajihuddin, Criminalisation of triple talaq may be misused: Women's body, THE TIMES OF INDIA (Nov. 24,
2017), https://timesofindia.indiatimes.com/city/mumbai/criminalisation-of-triple-talaq-may-be-misused-womens-
body/articleshow/61775066.cms.
10 (2017) 9 SCC 1.
In Shayara Bano, the minority view was that triple talaq is a valid form of divorce under Muslim
law and the right to follow personal law is an integral part of freedom of religion. But, if
Parliament so wants, it may enact a law on it.14 It was felt that the setting aside of triple talaq by
the Supreme Court has not worked as an effective deterrent in bringing down the number of
such divorces.15 There was an urgent need for State action in the form of suitable legislation, to
give effect to the order of the Supreme Court.16 Subsequently, the Lok Sabha passed the Bill,
declaring the practice as void and making it a punishable offence. The Bill was met with
widespread opposition. To address this, the Union Cabinet approved three amendments to the
Bill to provide safeguards.17 During its pendency in the Rajya Sabha, the President approved the
Ordinance to overcome ‘overpowering urgency’ and ‘compelling necessity’ to discontinue the
practice.18
Although the Bill aims to achieve gender justice, it adopts the means of criminalisation of
pronouncement of triple talaq to do so. Such criminalisation makes the invasion of privacy quite
probable. In Justice K. S. Puttaswamy (Retd.) v. Union of India, the Supreme Court held that the
privacy is a fundamental right under right to life and personal liberty enshrined in Article 21 of
The pursuit of a legitimate state aim ensures that the law does not suffer from manifest
arbitrariness. The nature and content of the law which imposes the restriction must fall within
the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state
action.21 Arbitrary means in an unreasonable manner, as fixed or done capriciously or at pleasure,
without adequate determining principle, not founded on the nature of things, non-rational, not
done according to reason or judgment, depending on the will alone.22 The Bill provides that any
pronouncement of triple talaq by a Muslim husband upon his wife, by words, either spoken or
written or in electronic form or in any other manner, shall be a punishable offence.23 This
provision fails to meet the requirement of a legitimate state aim of reasonableness because of the
following reasons:
The criminalisation of the pronouncement of triple talaq would be inappropriate. There are
certain cases where a wrongful act should not be classified as a criminal offence. Jeremy
Bentham, whose work is an authoritative and reliable source for understanding the principles of
criminal jurisprudence has enumerated such cases in his book An Introduction to the Principles of
Morals and Legislation:
19 (2017) 10 SCC 1.
20 Id.
21 Id.
22 Sharma Transport v. Govt. of A.P. (2002) 2 SCC 188.
23 The Muslim Women (Protection of Rights on Marriage) Bill, 2017, s. 4.
Secondly, where it is inefficacious i.e. it cannot prevent the mischief. The punishment is not
justified if it does not prevent him from engaging in a wrongful act.29 The imprisonment
of the husband for pronouncement of triple talaq would aggravate the marital discord
and diminish the chances of reconciliation. This would discourage the wife from
reporting such incidents which would reduce the deterrent effect.
Thirdly, where it is unprofitable or too expensive i.e. the mischief it would produce would
be greater than what it prevented.30 The criminalisation of the pronouncement of triple
talaq may only prevent an inconsequential act. Additionally, there is low probability of
such prevention because of the reduced deterrent effect. On the other hand, it would
produce the mischief of irreparable marital discord. It has been observed that an
accusation of one spouse by the other intensifies spousal conflict which leads to failure
of marriage.31 Flavia Agnes while criticising the Bill has opined that once the husband
24 JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 134 (1 ed. 1789).
25 N.V. PARANJAPE, CRIMINOLOGY & PENOLOGY WITH VICTIMOLOGY 12 (16 ed. 2014).
26 Id. at 13.
27 Flavia Agnes, The Politics behind Criminalising Triple Talaq, 53(1) EPW 12 (2018).
28 Faizan Mustafa, Why Criminalising Triple Talaq is Unnecessary Overkill, THE WIRE (Dec. 15, 2017),
https://thewire.in/gender/why-criminalising-triple-talaq-is-unnecessary-overkill.
29 Bentham, supra note 24 at 135.
30 Id. at 134.
31 Joseph Shine v. Union of India, 2018 (11) SCALE 556.
It would also produce the mischief of misuse of the provision providing for punishment
for such pronouncement. Similar provisions like Section 498A of the Indian Penal Code
(‘the IPC’) and the provisions under the Dowry Prohibition Act, 1961 (‘the DP Act’)
have been misused.33
Lastly, where it is needless i.e. the mischief may be addressed at a cheaper rate.34 Where a
civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the
State.35 As Muslim marriages are contractual in nature, civil remedies are sufficient to deal
with any dispute arising out of them.36 The use of the state machinery to imprison a
person for a period of three years is not justified when the issue can be addressed
through cheaper alternative means. Such means may include civil remedies in the form of
adequate compensation and specially devised mechanisms like alternate dispute
resolution methods. This scheme of providing civil remedies as opposed to criminal
sanctions has been followed in various statutes in pari materia including the Protection of
Women from Domestic Violence Act, 2005 (‘the DV Act’) and the Code of Criminal
Procedure in Section 125. The practice has also been banned in Muslim dominated
countries including Turkey, Cyprus, Tunisia, Algeria, Malaysia, Jordon, Egypt, Iran, Iraq,
Brunei, the United Arab Emirates, Indonesia, Libya, Sudan, Lebanon, Saudi Arabia,
Morocco and Kuwait.37 In most of these countries, proceeding related to the
pronouncement of triple talaq takes place in civil courts providing civil remedies.38
Thus, the pronouncement of triple talaq should not be categorised as a criminal offence. Even
Hanafi school of Shariat law which although recognises this form of talaq, regard it to be a mere
sin and bad in theology.40 Also, no court, including the Supreme Court has ever considered it as a
crime.41 Even while striking down the practice in Shayara Bano, the court didn't suggest making it
a criminal offence.42
One of the reasons provided for the criminalisation of the pronouncement was the absence of
any deterrent effect of the decision in Shayara Bano.43 It has been held that the State must adopt a
minimalist approach in criminalisation of offences because a stronger justification is required
where an offence is made punishable with imprisonment.44 The abovementioned reason is not
strong enough to justify putting a person behind bars as it is not appropriate to conclude the
absence of deterrent effect within a period as short as four months.
The Bill penalises any pronouncement of triple talaq by a Muslim husband upon his wife. As no
mental element has been prescribed expressly or by implication, it may be interpreted to include
even those pronouncements which are made without the intention of divorcing the wife.45 The
general principle of criminal jurisprudence is that element of mens rea must accompany the
culpable act of the accused.46 A criminal offence is committed only when an act forbidden by law
is done voluntarily and not if the mind of the person doing the act is innocent.47 According to
Jeremy Bentham, a wrongful act done without mens rea should not be made a criminal offence.48
However, there is a class of offences, generally known as strict liability offences, which does not
39See Family Law 1984, art. 35 [Libya]; Code of Personal Status 2004, art. 82 [Morocco]; Muslim Family Laws
Ordinance 1961, s. 7(4) [Pakistan & Bangladesh].
40 ASAF A.A. FYZEE, OUTLINES OF MUHAMMADAN LAW 147 (3 ed. 1964).
41 Nazeer v. Shemeema, 2017 (1) KLT 300; Masroor Ahmed v. State (NCT of Delhi), 2008 (103) DRJ 137 at 153;
Jiauddin Ahmed v. Anwara Begum, (1981) 1 GLR 358; Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 GLR 375.
42 Shayara Bano v. Union of India, (2017) 9 SCC 1.
43 The Muslim Women (Protection of Rights on Marriage) Bill, 2017, Objects and Reasons.
44 Joseph Shine v. Union of India, 2018 (11) SCALE 556.
45Faizan Mustafa, Arbitrary and Irrational, THE HINDU (Dec 11, 2017), https://www.thehindu.com/opinion/op-
ed/arbitrary-and-irrational/article21386439.ece.
46 5(1) HALSBURY’S LAWS OF INDIA 24 (1 ed. 2006)
47 21 AMERICAN JURISPRUDENCE 213 (2 ed. 1998).
48 Bentham, supra note 25 at 136.
These strict liability offences may be classified into three categories51: First, acts that are not
criminal in any real sense but are of a quasi-criminal nature and are prohibited in public interest
under a penalty. For example, environment pollution, special social and economic offences,
offences relating to foods and drugs, etc. It has already been discussed that the pronouncement
of triple talaq does not fulfil the requirement of actus reus which is essential to make it a criminal
offence. Thus, it would not fall under the first category. Second, cases of public nuisance, libel and
contempt of court, etc. Third, cases in which although the proceeding is criminal, it is really a
mode of enforcing a civil right. For example, cases of violations of municipal laws and
regulations, etc. Such offences typically involve only light penalties.52 Strict liability in penal law is
indefensible if a conviction results in the possibility of imprisonment and condemnation.53 Strict
criminal liability without some form of mens rea deprives the accused of liberty without due
process under Constitutional guarantees.54 As the offence of pronouncement of triple talaq does
not fall under any of the above categories, making it a strict liability offence punishable with
imprisonment upto three years would be unjustified.
Thus, the criminalisation of mere pronouncement of triple talaq without adequate determining
principle is arbitrary and unreasonable under Article 14 of the Constitution.
B. Requirement of proportionality
The requirement of proportionality ensures a rational nexus between the objects and the means
adopted to achieve them. Proportionality is an essential facet of the guarantee against arbitrary
state action because it ensures that the nature and quality of the encroachment on the right is not
disproportionate to the purpose of the law.55 A punishment should always be proportionate to
The pronouncement of triple talaq has been made an offence punishable with imprisonment
which may extend to three years along with fine.58 Mere pronouncement of triple talaq is similar
to ‘domestic violence’ under the DV Act. It includes harm or injury to mental well-being and
‘verbal and emotional abuse’.59 The word ‘abuse’ has a very wide meaning. Everything which is
contrary to good order established by usage amounts to abuse. Verbal and emotional abuse
includes insulting, ridiculing, humiliating, intimidating her for depriving her of the benefits of
shared household, etc.60 It is pertinent to note that verbal and emotional abuse along with other
types of domestic violence have various civil remedies instead of penal consequences. The Act
prescribes imprisonment upto one year only when an order providing such civil remedies by the
Magistrate is breached.61 Putting the husband behind bars for upto three years would be
inconsistent with the scheme followed in the Act. Thus, the above penalty is excessive and
disproportionate. Moreover, such a stringent punishment has been prescribed for much graver
offences like sedition62, promoting enmity between classes of people63, rioting armed with deadly
weapon64, etc. It has been held that the penalty imposed must be commensurate with the gravity
of the misconduct and any excessive and disproportionate penalty would be manifestly arbitrary
and violative of Article 14.65 Consequently, such an unreasonable and disproportionate penalty is
arbitrary and contravenes Article 14.
Additionally, the offence of pronouncement of triple talaq has been made cognizable if
information relating to the commission of the offence is given to an officer in charge of a police
station by the wife or any person related to her by blood or marriage. 66 It would mean that upon
The Supreme Court in Shayara Bano and the Parliament through this Bill made the
pronouncement of triple talaq void and illegal. The aim was unaffected subsistence of marriage,
thus protecting the rights of Muslim women. However, classifying the pronouncement of triple
talaq as a cognizable offence punishable with imprisonment of upto three years would in effect
cause irreparable harm to the marriage. The means adopted by the Bill would themselves defeat
the very object that it seeks to achieve which indicates that there is no rational nexus between the
two. Therefore, criminalisation of mere pronouncement of triple talaq, which is not accompanied
by any other act fails to meet the requirement of proportionality.
As criminalisation of pronouncement of triple talaq fails to meet the requisite conditions, invasion
of privacy by the State through criminal sanction cannot be justified. Interference by the State would be
justified if it employs civil means to achieve the objective of prohibition of triple talaq as this
would fulfil the necessary requirements.
The proposed Bill suffers from grave inconsistencies which can be overcome through an
alternate scheme which is suggested below:
Pronouncement of triple talaq should be declared ‘void and illegal’. It would have no
legal effect on the status of the husband and wife. The magistrate on the application of
wife may ask the husband to compensate the wife for the mental agony caused to her.
The magistrate may decide the quantum of the compensation and the time period within
which it is to be paid. Mere pronouncement of triple talaq would not entail any penal
consequences.
If the husband breaches the order of the magistrate and fails to pay the compensation as
prescribed, then he should be liable for a penalty for such breach in the form of
imprisonment for a term which may extend to one year, along with fine. This is in
consonance with the scheme followed under the DV Act.
If the husband pays the requisite compensation and does not enforce or attempts to
enforce such pronouncement, he should not be liable for any of the aforementioned
punishments.
It is pertinent to note that as long as the practice of polygamy subsists, the husband will
always have the option to get married again even if his pronouncement has no value in
the eyes of law. This would render the objective of protecting the rights of Muslim
woman ineffective. It is suggested that the legislature should incorporate civil safeguards
against the practice of polygamy to avoid this situation.
V. CONCLUSION
The approach of Indian judiciary towards triple talaq has always been critical. However, there
was an urgent need for incorporating this approach in the letter of the law. The Muslim Women
(Protection of Rights on Marriage) Bill, 2017 is a step forward in this direction. The Bill intends
to achieve justice for Muslim Women and prevent the incessant harassment caused by this
practice.
The Bill, in its present form, criminalises the pronouncement of triple talaq, apart from declaring
the practice as void and illegal. It seems highly unlikely that it would be successful in achieving
its two-fold objective of prohibition of the practice of triple talaq and protection of rights of
Muslim women. The first part of the Bill which declares the practice of triple talaq as void and
illegal is in consonance with the ruling of the Supreme Court in Shayara Bano. However, the
provisions which penalise the practice with a stringent punishment are likely to be
counterproductive as they would discourage reporting of such incidents and diminish the
chances of reconciliation. Additionally, the Court in Shayara Bano never suggested the
criminalisation of pronouncement of triple talaq. The state is likely to intrude into the private
sphere of its citizens through criminal sanction for such practice.