Flawed Understanding of Triple Talaq Law is Leading to its Misuse

Flawed understanding of triple talaq law is leading to its misuse

The triple talaq law, known as Muslim Women (Protection of Rights on Marriage) Act of 2019, is playing out in courts across the country on the grounds of its alleged violation by men. Most of these cases are, however, a result of faulty understanding of the Islamic law on divorce.  To understand Islamic law on divorce, one has to go back to the basics of this law.

About Triple Talaq Law

Triple Talaq law makes the instant triple talaq a criminal offence and provides for a jail term of three years for a Muslim man who commits the crime.

Introduced in the Lok Sabha by Minister of Law and Justice Ravi Shankar Prasad on June 21, 2019, the Bill replaced an Ordinance promulgated on February 21, 2019.

What is Triple Talaq?

Triple talaq is a form of divorce prevalent among Muslims which allows a man to instantly divorce his wife by uttering the word "talaq" (divorce) thrice.

Background of the anti-triple talaq law

The blatantly anti-women divorce customs prevalent in pre-Islamic Arabia had been given a severe blow by the teachings of Prophet Muhammad who was, indeed, a great social reformer.  

On the basis that “old habits die hard”, unscrupulous men innovated ways and means to circumvent the Prophet’s noble teachings.  

One of these was the practice of triple talaq — repeating the word “talaq” thrice — which was believed to effect instant dissolution of marriage leaving no room for any reconsideration or reconciliation.  

Instead of defeating this innovation, law men of the time called it talaq-ul-bidat and declared it to be “sinful but effective”.  

This concept remained in Muslim societies for centuries across the globe.  

But due to its devastating effects on families and societies, country after country in Asia and Africa gradually abolished by legislation the detestable practice of triple talaq. 

Triple Talaq in India

India took a much longer time to follow suit. During British rule, courts accepted and enforced this “sinful but effective” form of divorce calling it a concept “bad in theology but good in law.”

In the early years after Independence, some High Court judges — VR Krishna Iyer of Kerala and Baharul Islam of Assam among them — tried to awaken the custodians of state authority to the need for its abolition.

Social reformers also demanded that what was bad in theology should be bad in law too. Finding that legislation required for it was nowhere in sight, the apex court of the country tried in some cases to indirectly curb the archaic practice and eventually outlawed it in the Shayara Bano case of 2017.

Misuse of Section 498A

Section 498A of the Indian Penal Code (cruelty to a woman by her husband or his relatives) is often misused.

This undeniable fact was once acknowledged by the apex court, though it had to withdraw under feminist pressure the measures it had directed to curb the trend.

Like the said provision of the Penal Code, the anti-triple talaq law of 2019 is also prone to misuse and their dishonest combination may play havoc with families.

In the triple talaq case under reference, lawyers of a Kerala woman had included her husband’s mother in the FIR filed against him under the 2019 Act by vaguely alluding to the said IPC provision.

For understanding the commonsense fact that this Act is meant to discipline erring husbands only, the learned lawyers needed a learning session with the apex court.

Misuse of Section 7 of the 2019 Act

The provision for bail to be granted to the accused husband under Section 7 of the 2019 Act has been particularly misunderstood. Many lawyers misbelieve that it overrides the general provision for anticipatory bail under Section 438 of the Criminal Procedure Code.

Soon after the enactment of the Act, a man accused of committing the offence it had created sought anticipatory bail in the Bombay High Court. His wife’s lawyers argued that the non-obstante clause in Section 7 of the Act had rendered the CrPC provision inapplicable to cases under its provisions. Rightly rejecting the argument, the court granted bail.