“On a preliminary analysis it is clear that the appellant as the mother-in-law of the second respondent (wife) cannot be accused of the offence of pronouncement of triple talaq under the Act as the offence can only be committed by a Muslim man (husband),” a Supreme Court Bench led by Justice D Y Chandrachud noticed in a current case determined beneath the Muslim Women (Protection of Rights on Marriage) Act of 2019, popularly generally known as the anti-triple talaq law. The details of the case present that the Act is being as gravely misunderstood as was, and nonetheless is, the true Islamic law on divorce.
The background of the anti-triple talaq law wants to be defined. The blatantly anti-women divorce customs prevalent in pre-Islamic Arabia had been given a extreme blow by the teachings of Prophet Muhammad who was, certainly, an incredible social reformer. Demonstrating the reality of the saying “old habits die hard”, unscrupulous males innovated, within the course of time, methods and means to circumvent the Prophet’s noble teachings. One of these was the follow of triple talaq — repeating the phrase “talaq” thrice — which was believed to impact prompt dissolution of marriage leaving no room for any reconsideration or reconciliation. Instead of nipping within the bud that abominable innovation, law males of the time known as it talaq-ul-bidat and declared it to be “sinful but effective”. This self-contradictory idea remained in vogue for hundreds of years in Muslim societies throughout the globe. Twentieth century reformers in some Muslim-dominated lands ultimately wakened to the necessity to save households from devastation and demanded that what was “sinful” by faith should not be enforced by law. Country after nation in Asia and Africa steadily abolished by laws the detestable follow of triple talaq.
India took a for much longer time to observe go well with. During British rule, courts accepted and enforced this “sinful but effective” kind of divorce calling it an idea “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 amongst them — tried to awaken the custodians of state authority to the necessity for its abolition. A Muslim choose of Kerala bemoaned: “Should Muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Can it not be amended suitably to alleviate their sufferings?” Social reformers additionally demanded that what was unhealthy in theology must be unhealthy in law too. Finding that laws required for it was nowhere in sight, the apex court docket of the nation tried in some instances to not directly curb the archaic follow and ultimately outlawed it within the Shayara Bano case of 2017. The anti-triple talaq Act of 2019 was the end result of this judicial reform.
Section 498A of the Indian Penal Code (cruelty to a girl by her husband or his family members) is typically misused. This indisputable fact was as soon as acknowledged by the apex court docket, although it had to withdraw beneath feminist stress the measures it had directed to curb the pattern. Like the stated provision of the Penal Code, the anti-triple talaq law of 2019 is additionally susceptible to misuse and their dishonest mixture could play havoc with households. In the triple talaq case beneath reference, legal professionals of a Kerala lady had included her husband’s mom within the FIR filed in opposition to him beneath the 2019 Act by vaguely alluding to the stated IPC provision. For understanding the commonsense incontrovertible fact that this Act is meant to self-discipline erring husbands solely, the discovered legal professionals wanted a studying session with the apex court docket.
The provision for bail to be granted to the accused husband beneath Section 7 of the 2019 Act has been notably misunderstood. Many legal professionals misbelieve that it overrides the overall provision for anticipatory bail beneath Section 438 of the Criminal Procedure Code. Soon after the enactment of the Act, a person accused of committing the offence it had created sought anticipatory bail within the Bombay High Court. His spouse’s legal professionals argued that the non-obstante clause in Section 7 of the Act had rendered the CrPC provision inapplicable to instances beneath its provisions. Rightly rejecting the argument, the court docket granted bail.
In distinction, within the case beneath reference, the Kerala High Court had accepted the identical defective argument to refuse bail to the accused husband’s mom, who then had to knock on the apex court docket’s doorways. Explaining the place beneath the Act, the court docket emphatically held: “Parliament has not overridden the provisions of Section 438 of the CrPC. There is no specific provision in Section 7(c), or elsewhere in the Act, making Section 438 inapplicable to an offence punishable under the Act.” The verdict is a major step in direction of stopping the misuse of the anti-triple divorce law.
The author is Distinguished Jurist Chair and Professor of Eminence, Institute of Advanced Legal Studies, Amity University