
By
Faizan Mustafa
August 1,
2019
Muslim
countries serve as poor examples for gender-just laws. Unlike Muslim men, in
almost all Muslim countries, women cannot marry Christians or Jews.
(Illustration by Suvajit Dey)
The much
talked about Triple Talaq Bill (TTB) has finally been passed by both Houses of
Parliament. The Union law minister justified it as an issue of gender justice
and admitted that there have been just 473 cases of triple divorce in the last
two years. This admission proves two things: One, the incidence of triple
divorce is negligible and the issue was blown out of proportion for political
reasons and two, the penal provision in the ordinance had no deterrent effect.
That Muslim countries too penalise triple divorce was the third justification
for the law but this is factually incorrect — there is a distinction between an
act being declared “invalid” and being made an “offence”. The Supreme Court
declared triple divorce as invalid and did not ask the government to make it a
penal offence.
In fact,
the day the Lok Sabha passed this regressive law, newspapers reported that the
former Malaysian king, who recently abandoned the throne, announced that he has
given triple divorce to his Russian wife. Triple divorce has not gone out of
use in the Muslim world. Can we say that since Indian law punishes murders and
rapes, no murder or rape is committed in India?
Muslim
countries serve as poor examples for gender-just laws. Unlike Muslim men, in
almost all Muslim countries, women cannot marry Christians or Jews. In some,
they have a duty to “obey their husband” and need his permission to work or go
outside the home. Their testimony has half the value of that of men. In some
countries, a rapist can escape punishment if he marries the victim. Even on the
issue of custody of children and maintenance, laws in Muslim countries are
regressive as mothers can get the custody of a son only till he attains the age
of 10 and a daughter till she attains the age of 12. And she loses custody on
her remarriage. They punish adultery and apostasy with death.
Every
punishment which does not arise from absolute necessity, according to
Montesquieu, is tyrannical. In fact, criminal law should be used only as a
“last resort” (ultima ratio) and only for the “most reprehensible wrongs”. The
TTB is an instance of the unnecessary invocation of criminal sanctions.
Consider
three current debates in our criminal justice system: One, we have
decriminalised breaches of matrimonial faith in the form of adultery. Two, we
decriminalised homosexuality though it has been punishable for centuries in all
religions and legal systems. Three, we are not able to criminalise “marital
rape” despite our revulsion to it. If something is a “sin”, let God punish the
sinner. A civilised legal system should not enforce religious morality. The
Wolfenden Committee Report (1957) in England clearly said that “unless a
deliberate attempt is to be made by society, acting through the agency of the
law, to equate the sphere of crime with that of sin, there must remain a realm
of private morality and immorality which is, in brief and crude terms, not the
law’s business.”
The fact
that triple divorce is a “sin” under Islamic law was admitted even by the
Narendra Modi government in its affidavit in the Shayara Bano case. Yet, we are
set to penalise this breach of religious morality through the instrumentality
of criminal law. BJP MPs did argue during the debate on the TTB that since
triple talaq is sinful, it can be penalised. Are we going in the direction of
religious theocracy?
From another
angle, too, triple divorce is a unique case where the law is dictating to the
orthodox Hanafi Muslim woman to continue in a relationship she considers
sinful. If she thinks that as per her sect, her marriage has come to an end,
forcing the continuance of sexual relations is nothing but tyranny unleashed by
the law, which seriously undermines individual choice and autonomy. On the one
hand, we have the bogey of so-called “love jihad” deployed to curtail the
freedom to marry a person of one’s choice and on the other hand, Muslim women
are forced to continue with same abusive husband who has given them instant
triple divorce. We cannot say that the issue of women’s entry into the
Sabarimala temple is a question of faith and triple divorce is an issue of gender
justice. This is hypocrisy of the highest order. Moreover, instant triple
divorce should not be a crime when it is pronounced at the request of the wife.
We should not curtail this right of Muslim women.
Unfortunately,
“crimes” originate in government policy and, therefore, criminal law reflects
the idea of “power” rather than “justice”. This was evident in the recent
amendments to the Unlawful Activities (Prevention) Act. The state in its
discretion deems certain acts as crimes as per its own electoral or other
needs. The state may decide to criminalise and decriminalise almost anything.
A crime
consists of wrongdoing which directly and to a serious degree threatens the
security or well being of society, and because it is not safe to redress it
only by compensation to the injured party. The purpose of criminal law is to
forbid and prevent conduct that unjustifiably and inexcusably inflicts or
threatens substantial harm to individual or public interests. Since the Supreme
Court has set aside triple divorce, it can no longer dissolve marriages and
thus causes no harm at all. It no longer threatens the security and well -being
of the society. Mukhtar Abbas Naqvi, in his speech in the Lok Sabha, said that
government has now made it a bailable offence. He is wrong. A bailable offence
is one where bail is a right and cannot be denied. Under the TT Bill, bail is
at the discretion of the judge and thus, it is non-bailable. Moreover, we have
restricted even this judicial discretion by laying down that it can be exercised
by the judge only after hearing the wife on whom talaq has been pronounced.
Criminal
law should not be used if it may not be effective in controlling the act in
question. The triple divorce law is bound to fail, especially in cases of oral
triple divorce given by husbands when no one other than the couple was present,
as discharging the burden of proof will be a Himalayan task for the
prosecution. We are doing a huge disservice to Muslim women as no husband on
his return from jail is likely to retain the wife on whose complaint he had
gone to prison. The Bill will lead to more divorces and abandonment. The remedy
to tackle triple divorce is thus worse than the disease. Ideally, the marriage
contract must lay down that a husband can give divorce only with the consent of
the wife and if he gives three unilateral divorces in one go, the dower amount
will be increased to five times. In case of non -payment, a prison term would
be justifiable as under civil law, non-payment of debt does lead to imprisonment.
A
punishment, to be just, should have only that degree of severity which is
sufficient to deter others. Punishments invariably exceed the crime and this,
in the ultimate analysis, harms the state. Three years’ imprisonment in the new
Bill is excessive and is disproportionate. The Indian Penal Code provides far
lesser sentences for graver crimes. The TTB obliterates the distinction between
“minor” and “major” crimes.
Criminal
law’s promise of safety is matched by its power to destroy. Let us hope the Bill
will not be misused.
Faizan
Mustafa is vice chancellor, NALSAR University of Law, Hyderabad
Source: The
Indian Express
URL: http://www.newageislam.com/islam,-women-and-feminism/faizan-mustafa/criminalising-triple-divorce-violates-the-first-principles-of-criminal-jurisprudence,-will-be-counterproductive/d/119359