Flawed understanding of triple talaq law is leading to its misuse

Flawed understanding of triple talaq law is leading to its misuse

Synopsis– Faulty understanding of the triple talaq law i.e., Muslim Women (Protection of Rights on Marriage) Act of 2019, as well as the Islamic law on divorce is leading to misuse of the act. 

Introduction-  In the Muslim Women (Protection of Rights on Marriage) Act of 2019, a Supreme Court Bench led by Justice D Y Chandrachud observed that 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). It clearly shows that the act is being misunderstood.  

Background of the anti-triple talaq law-  

  • Anti-women divorce customs prevalent in pre-Islamic Arabia had been given a severe blow by the teachings of  great social reformer Prophet Muhammad.  
  • 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. 

Situation in India- 

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

Post– Independence, some High Court judges like VR Krishna Iyer of Kerala and Baharul Islam of Assam tried to awaken the custodians of state authority to the need for its abolition.  

Finally, the practice of triple talaq was outlawed in the Shayara Bano case of 2017. The anti-triple talaq Act of 2019 was the outcome of this judicial reform. 

How provisions of Triple Talaq law are often misunderstood

  • Misuse of Section 498A of the Indian Penal Code (cruelty to a woman by her husband or his relatives) was once acknowledged by the apex court and formalized some measures. But under feminist pressure, the measures were withdrawn.  
  • Anti-triple talaq law together with Section 498A is proving destructive for the families.  
      • For Instance, in one triple talaq case in Kerala, a lawyer of a woman included her husband’s mother in the FIR filed against her husband in reference to the said IPC provision.  
  • Kerala High Court had refused bail to the accused husband’s mother. The case went to SC where SC highlighted the faulty applications os the act, that
      • There is no specific provision in Section 7(c), or elsewhere in the Act, making Section 438 inapplicable to an offence punishable under the Ac 
  • Section 7 of the 2019 act is particularly misunderstood. Many lawyer misbelief that it overrides the general provision for anticipatory bail under Section 438 of the Criminal Procedure Code.  
      • For example, after enactment of the act, a man accused in the Triple talaq case sought anticipatory bail in the Bombay High Court. Lawyer argued that the non-obstante clause in Section 7, makes CrPC provision inapplicable.  
      • However, Court rejected the argument and granted bail to the person. 
  • For understanding the common-sense fact that this Act is meant to discipline erring husbands only, the learned lawyers needed a learning session with the apex court. 

Conclusion

The verdict of SC is a significant step towards preventing the misuse of the anti-triple divorce law.

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