CRIMINALISATION OF TRIPLE TALAQ: DISSECTING THE CONSTITUTIONAL

AND SOCIO-LEGAL ASPECTS

- Eesha Shrotriya and Shantanu Pachauri *

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).

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of talaq repeated three times at short intervals or even in immediate succession.6 There is no
requirement of special expressions to constitute a valid talaq except that the words used must
clearly indicate the intention of the husband to dissolve the marriage. If such repudiation was
made during the tuhr (period between menstruations) of the wife and the husband had no
intercourse with her during that period, it becomes complete and irrevocable immediately.7

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.

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concept of talaq under Muslim law and concluded that it does not allow instantaneous and
irrevocable triple talaq.11 The Court also stated that the correct law of talaq as ordained by the
Holy Quran is that it must be for a reasonable cause and be preceded by attempts at
reconciliation. This position was reiterated by the Court in Rukia Khatun v. Abdul Khalique
Laskar.12 In Nazeer v. Shemeema, the Kerala High Court reached the conclusion that triple talaq in
one utterance is not valid according to Quranic injunction.13

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

III. CRIMINALISATION OF TRIPLE TALAQ: GENDER JUSTICE OR INVASION OF

PRIVACY?

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

11 (1981) 1 GLR 358.

12 (1981) 1 GLR 375.
13 2017 (1) KLT 300.
14 (2017) 9 SCC 1.
15 The Muslim Women (Protection of Rights on Marriage) Bill 2017, Statement of Objects and Reasons.
16 Id.
17 Instant triple talaq Bill: Cabinet approves inclusion of provision of bail, THE HINDU (Aug. 9, 2018),
https://www.thehindu.com/news/national/instant-triple-talaq-bill-cabinet-approves-provision-of-
bail/article24643897.ece.
18 Triple talaq is criminal offence, THE HINDU (Sept. 20, 2018), https://www.thehindu.com/news/national/triple-talaq-
is-criminal-offence/article24989451.ece.

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the Constitution.19 It was held that an invasion of privacy by the State can only be justified if
such invasion satisfies a three-fold requirement which applies to all restraints on privacy20: Firstly,
the requirement of legality which postulates that there must be a law in existence to justify an
encroachment on privacy as no person can be deprived of his life and personal liberty except in
accordance with the procedure established by law. Secondly, the requirement of a need, in terms of
a legitimate state aim to ensure that the law is reasonable and not arbitrary. Thirdly, the
requirement of proportionality which postulates that the means adopted are proportional to the
object sought to be fulfilled. As the criminalisation of the pronouncement of triple talaq is
proposed to be done through a legislation, the requirement of legality is satisfied. The other two
requirements are discussed below:

A. Requirement of a legitimate state aim

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:

1. Criminal consequences for a civil wrong

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.

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  Firstly, where it is groundless i.e. where there is no mischief for it to prevent since the act is
not mischievous.24 For an unlawful act to constitute a crime, it should entail some
external harmful consequences, thus constituting actus reus (criminal act).25 There must be
a causal relationship between the voluntary misconduct and the resulting harm.26 After
Shayara Bano, pronouncement of triple talaq has lost its legal validity and power to
dissolve a Muslim marriage.27 Mere pronouncement of triple talaq, unaccompanied by any
other act is inconsequential as it does not dissolve the marriage and in no way adversely
affects either the wife or the society.28 She remains a legally wedded wife as her status is
not altered. Thus, prima facie there is no mischief. However, in the offence of bigamy too,
a person is punished for solemnising a valid second marriage, even though this marriage
is void and inconsequential. Thus, an inconsequential act can be classified as a criminal
offence. Criminalisation of the pronouncement of triple talaq cannot be said to be
groundless.

 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.

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 undergoes imprisonment, it would be unreasonable to expect any reconciliation between
spouses as the enraged husband may well resort to the approved Quranic form to
pronounce triple talaq over a three-month period.32 The objective of protecting the rights
of the aggrieved wife cannot be achieved as imprisoning the husband would reduce the
possibility of reconciliation. Thus, criminalisation would lead to the breakdown of the
very institution it seeks to protect.

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

32 Agnes, supra note 27 at 13.

33
Ministry of Law and Justice, Govt. of India, 243rd Law Commission Report – Section 498A IPC,
http://lawcommissionofindia.nic.in/reports/report243.pdf.
34 Bentham, supra note 24 at 134.
35 Joseph Shine v. Union of India, 2018 (11) SCALE 556.
36 Mustafa, supra note 29.
37 Pakistan, Bangladesh among countries to ban triple talaq, THE TRIBUNE (Sep. 19, 2018).
https://www.tribuneindia.com/news/nation/pakistan-bangladesh-among-countries-to-ban-triple-
talaq/655513.html.
38See Code of Personal Status 1953, art. 117 [Syria]; Code of Personal Status 1956, art. 32 [Tunisia]; Decree on
Personal Status 1992, art. 71 [Yemen]; Law of Personal Status 2005, art. 140 [The United Arab Emirates]

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 Various mechanisms are prescribed to facilitate reconciliation such as consultation with
an Arbitrator or religious heads.39

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.

2. Absence of mens rea

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.

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depend on any mental element but consist of forbidden acts or omissions.49 It is sufficient to
prove the doing of the prohibited act and any defence of ignorance, mistake or reasonable care is
excluded.50

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

49 American Jurisprudence, supra note 52 at 225.

50 Id. at 213-14; RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE 23 (32 ed. 2013).
5111(1) HALSBURY’S LAWS OF ENGLAND 273-274 (4 ed. 1987); DAVID ORMEROD, SMITH AND HOGAN ON
CRIMINAL LAW 59-72 (2 ed. 1969).
52 Halsbury’s Laws of India, supra note 52 at 28; American Jurisprudence, supra note 52 at 227.
53 American Jurisprudence, supra note 52 at 227.
54 Id.
55 Justice K. S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

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the crime.56 The principle of proportion between crime and punishment is a principle of just
deserts that serves as the foundation of every criminal sentence that is justifiable.57

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

56 Ediga Anamma v. State of Andhra Pradesh, AIR 1974 SC 799.

57 Halsbury’s Laws of India, supra note 57 at 312.
58 The Muslim Women (Protection of Rights on Marriage) Bill, 2017, s. 4.
59 The Protection of Women from Domestic Violence Act, 2005, s. 3 (a).
60 The Protection of Women from Domestic Violence Rules, 2006, Form IV; NIDHI SHUKLA, GENDER JUSTICE
AND DOMESTIC VIOLENCE 92 (1 ed. 2014); N.K. ACHARYA, COMMENTARY ON PROTECTION OF WOMEN FROM
DOMESTIC VIOLENCE ACT, 2005 29 (3 ed. 2009).
61 The Protection of Women from Domestic Violence Act, 2005, s. 31 (a).
62 The Indian Penal Code, s. 124A.
63 The Indian Penal Code, s. 153A.
64 The Indian Penal Code, s. 148.
65 Bhagat Ram v. State of Himachal Pradesh, (1983) 2 SCC 442.
66 The Muslim Women (Protection of Rights on Marriage) Bill, 2017, Notice of Amendments,
https://www.prsindia.org/sites/default/files/bill_files/Triple%20Talaq%20Notice%20of%20Amendments.pdf.

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receipt of a complaint, the husband would be arrested without a warrant without conducting any
preliminary inquiry. Various offences dealing with similar subject matter like cruelty and taking
or giving dowry are cognizable which leads to their misuse.67 To prevent such misuse, certain
safeguards need to be incorporated in the Bill, the absence of which would make the procedure
under the Bill unfair and unreasonable.

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.

IV. SUGGESTED SCHEME

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.

67 Law Commission Report – Section 498A IPC, supra note 37.

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  Although mere pronouncement of triple talaq would not have any legal effect, if the
husband or any other person enforces or attempts to enforce such pronouncement, he or she
should be punishable with imprisonment for a term which may extend to one year along
with fine.

 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.

 The pronouncement of triple talaq should be expressly included in the definition of

‘domestic violence’ in the DV Act. It would ensure that the wife can approach the court
for exhaustive remedies under the said Act in addition to the remedies in the
abovementioned scheme.

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.

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Thus, to achieve the two-fold objective of the Bill, the suggested scheme should be taken into
consideration. Consultations should be made with the Muslim community and legal scholars
before the Bill is passed to make it more effective. Once the Bill is passed, there is a need to
spread awareness about the effect of the Bill so that it is successful in achieving its objective.

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