By Sumedha Tewari

Introduction

On July 31, 2019, Rajya Sabha passed the The Muslim Women (Protection of Rights on Marriage) Bill, which was later on granted presidential assent on  April 1, 2019. With the passage of this bill, giving divorce to a Muslim woman through talaq-e-biddat or instant triple talaq was criminalised, prescribing up to three years of imprisonment of the husband. It also makes the pronouncement of such divorce as void and illegal. The Muslim Women (Protection of Rights on Marriage) Act[1] [“The Act”] was passed, after the much-celebrated judgement of Shayara Bano v. Union of India was delivered in 2017.[2] The Supreme Court in this highlighted judgement struck down the practice of giving of instant triple talaq by Muslim husband, ruling them as arbitrary and violative of right to equality. In essence, the Supreme court of India delegitimatized the practice of pronouncing talaq-e-biddat through any form such as electronic, physical or verbal. A major debate has arisen after the passing of this act, which focuses on the nature and motive behind criminalization of a divorce act, which itself has been declared void by the Hon’ble Supreme Court. On one side, it is accused of being a perpetrator of systematized target on the Muslim community, for bringing them to their knees.[3] It is termed as fundamentally contradictory to the essence of the Supreme Court judgement, as well as to itself by stating that a person has not committed a crime, but will be liable for the same. On the other hand, some have hailed the act as a safeguard to the right of muslim women. It is believed that with the threat of criminal punishment, deterrence will be created among Muslim men who frivolously pronounce this divorce on their women. This is also the fundamental reasoning given by the state while drafting and passing this legislation. I do not intend to discard the legitimate concerns of the critics of this bill, however I do wish to resolve the debate to some extent, by highlighting some complex fundamental principles that have been applied in it. I would like to urge the readers to look at the legislation from a different third perspective, which is not highlighted earlier.

 

To Punish or not to punish?

Prime Minister Narendra Modi hailed the passing of bill as historical, stating that such acts are necessary to deter the men, who after the pronouncement of the Supreme Court judgement, continued following the practice of triple talaq.[4] Similar statements were made by other ministers also. This highlights the basic aim of the Act, as being deterrent in its nature. Critics of the Act have a fundamental problem with the punishment of an act which is declared as void. Supporters of the Act, on the other hand, justify the punishment by citing extreme reasons as to why men who abandon their wife frivolously should be sent to jail as soon as possible. Certainly, the latter argument does not hold any ground, as men from other communities continue deserting their wife, without facing any criminal liability at all. The former argument also does not stand on a firm ground, because some form of deterrence was necessary, due to failure of Muslim men to abide by the law set by the Supreme Court.[5] There was need for some form of deterrent legislation, which demotivates Muslim men from deviating from the law

The concept of deterrence is quite simple, it is the omission of a criminal act because of the fear of sanctions or punishment. While not the entire premise, deterrence of sanctions or punishment is certainly an important foundation of the criminal justice system. Severity of punishment and performance of crimes contains a weak relationship, although certainty and prospects of punishment has negative effects on crime.[6] This is the logical explanation behind turning an act into a punitive criminal action. The Government of India, after passing the legislation justified it by citing reasons for the non-compliance of directive given by the Hon’ble Supreme court, making the triple talaq void.

 

A Third perspective- the restorative approach adopted by the parliament

I intend to propose to critics and supporters alike, a candid view of the act and its provisions, which can act as a satisfactory answer to the critics about the alleged absurdity of its criminalization without the focus on victim and also to the supporters who may get a clearer and sophisticated view of the intention of this act.  There is a glimpse of restorative criminal justice features in the Act, which often finds little value in Indian criminal jurisprudence.[7] The criminal justice system in India is mainly focused on quantifying crimes in terms of punishment and fines. The focus is therefore always more on the offender, disregarding the needs for victim participation.  However, if carefully read, we can see that the legislation has some features of a restorative theory also. Restorative system is meant to shift the responsibility of restoring the harm to the offender, both in terms of symbol and materials.[8] The victim lies at the centre of a restorative justice system, which not only seeks to repair the harm caused, but also includes the victim’s expressions and views as to what course of action is to be taken against the offender, which may not always be determinative on the case outcome.[9] The main attempt of a restorative theory is to empower the victim. Section 7 of the Act, reflects these principles in a shadowed form. The woman who has been divorced, is allowed to express her views on the outcome of a bail application by her husband, and if the magistrate thinks fit, he may grant bail, which otherwise is a non-bailable action.[10] Another feature is the compoundable nature of the offense, but at the insistence of the woman on whom the offence has been committed.[11] This gives a woman certain rights, after a complaint has been lodged against the husband. If at all the husband feels the need of reconciliation, due to a change of heart and conscience, he cannot be forced to undergo a punishment even after the wife approves of him.

However, if the husband does not intend to take back the wife, and a woman feels she will no longer be safe and protected in his presence, she need not drop the case or agree to the granting of bail. Therefore, in the aftermath, the presence of section 2 provides for imprisonment of up to 3 years, and others which provides the woman with the custody of her children and compensation,[12] are a juxtaposition of deterrence and compensatory system. The problem is the focus and not the offender, in this aspect of criminal justice system,[13] which is taken care of by the legislation, by granting both set of rights to the victim only.

 

Conclusion

When I started researching about this legislation and the motive behind it, it was hard to deviate from the line of reasoning of it being wrong and contrary to the essence of The Supreme Court judgement, as many scholars and activists claimed it to be. As I proceeded towards its intricate and minute complexities, which most of the people overlooked I came to one single conclusion. Accepting that a civil form of contract (Muslim marriage) should not be given a criminal colour, it is also important to realise the need of this legislation from the ground level. Non-obedience of the judgement by Muslim men, and continuance of the cases of triple talaq given for petty reasons made it inevitable for the government to provide a criminal sanction to it, which in theory deters them. It is not the desertion per se which is wrong, but a frivolous breaking of marital contract through any form and for petty reasons. In other religions, the wife remains married even after the desertion and can claim her rights, and divorce from the husband through legal means. Critics who claimed that it is a form of target on the Muslim community, have an answer here. The restorative principles applied in this act, as analysed above, gives sufficient importance to the victim, the wife in deciding as to the course of action needed to be taken against her husband. If she feels he will not perform such action again, there is a provision for compounding the offence. Granting of bail only if the wife expresses her view for it, is another restorative power given to a woman under the act. In short, the Act is an intricate  mixture of controlling an injustice to a woman by her husband, by providing deterrence and also providing for a solution and amicable path ahead, after a brief trailer of punishment has been showed to him, which enables a man to be afraid, and more prone towards restoration of status quo, which will happen only if his wife allows it.

The Author is pursuing her second year of law from National Law University, Jodhpur.

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 ENDNOTES

[1] The Muslim Women (Protection of Rights on Marriage) Act, No. 20, Act of Parliament, 2019 (India).

[2] Shayara Bano v. Union of India, (2017) 9 SCC 1.

[3] The Wire, ‘Complete Charade’: Activists, Civil Society Groups Condemn Triple Talaq Bill Communalism, (Jul. 31, 2019), https://thewire.in/communalism/triple-talaq-bill-muslim-women.

[4] Anupriya Thakur, Archaic practice confined to dustbin of history: PM Modi after triple talaq bill passed by Parliament (Jul. 30, 2019), https://www.indiatoday.in/india/story/archaic-practice-confined-to-dustbin-of-history-pm-modi-after-triple-talaq-bill-passed-by-parliament-1575333-2019-07-30.

[5]Economic Times, Triple talaq bill: Government says don’t see it through political prism, Politics and Nation, (Jul. 30, 2019), https://economictimes.indiatimes.com/news/politics-and-nation/triple-talaq-bill-government-says-dont-see-it-through-political-prism/articleshow/70450552.cms?from=mdr.

[6] Silberman, Matthew, Toward a Theory of Criminal Deterrence, 3 Amer. Socio. Rev 41 (1976).

[7] Thilagaraj, et al., Restorative Justice in India: Traditional Practice and Contemporary Applications (Springer 1st ed. 2017).

[8] John Braithwaite, Restorative Justice and Social Justice, 63 Sask. L. Rev. 185 (2000).

[9] Katherine Doolin, But What Does It Mean – Seeking Definitional Clarity in Restorative Justice, 71 J. Crim. L. 427 (2007).

[10] The Muslim Women (Protection of Rights on Marriage) Act, Sec. 7(b), No. 20, Act of Parliament, 2019 (India).

[11] The Muslim Women (Protection of Rights on Marriage) Act, Sec. 2, No. 20, Act of Parliament, 2019 (India).

[12] The Muslim Women (Protection of Rights on Marriage) Act, Sec. 5, No. 20, Act of Parliament, 2019 (India).

[13] Melton, Indigenous Justice Systems and Tribal Society, Living Justice Press,        http://www.aidainc.net/Publications/ij_systems.htm.