The Centres proposal to make instant triple talaq an offence punishable

with three-year imprisonment and a fine is an unnecessary attempt to

convert a civil wrong into a criminal act. By a three-two majority, the
Supreme Court has already declared, and correctly, that the practice of
talaq-e-biddat, or instant divorce of a Muslim woman by uttering the word
talaq thrice, is illegal and unenforceable. While two judges in the
majority said the practice was arbitrary and, therefore, unconstitutional,
the third judge ruled that it was illegal because it was contrary to Islamic
tenets. Its consequence is that the husbands marital obligations remain,
regardless of his intention in pronouncing it. When Parliament enacts a
law to give effect to the judicial invalidation of talaq-e-biddat, it must
primarily ensure protection to Muslim women against its use. Although the
details are not yet available, the proposed Muslim Women (Protection of
Rights on Marriage) Bill, 2017, appears to have provisions for
maintenance or subsistence allowance to the wife and children in the event
of triple talaq being pronounced. It seeks to preserve the womans
entitlement to custody of her children. While these are welcome and
necessary features of a law aimed to protect the rights of Muslim women
against arbitrary divorce, it hardly requires iteration that the civil character
of these aspects of marital law must be preserved.
Instant triple talaq is viewed as sinful and improper by a large section of
the community itself. Therefore, there can be no dispute about the need to
protect Muslim women against the practice. But it is also well established
that criminalising something does not have any deterrent effect on its
practice. That there have been 66 cases of its use after the Supreme Court
verdict only underscores the need for protecting women against desertion
and abandonment, but is it justified to send someone to jail? Also, the fine
amount under consideration could as well be awarded as maintenance or
subsistence allowance. The All-India Majlis-e-Ittehadul-Muslimeen
president, Asaduddin Owaisi, has argued in a letter to the Union Law
Minister that there is no need for a fresh criminal provision when existing
laws, under Section 498A of the Indian Penal Code or provisions of the
Protection of Women from Domestic Violence Act, 2005, already allow
the prosecution of a husband for inflicting physical or mental cruelty,
emotional and economic abuse, and for deprivation of financial resources.
Regardless of whether instant talaq would fall under any of these forms of
cruelty or domestic violence, criminalising it risks defeating the objective
of preserving the husbands legal obligations, and the payment of
maintenance. The Centre would do well to reconsider its draft and limit its
scope to providing relief to women, instead of creating a new offence out
of a civil matter.