Triple Talaq Law Is Being Gravely Misunderstood As the True Islamic Law on Divorce
By
Tahir Mahmood
January 9,
202
“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 observed in a
recent case decided under the Muslim Women (Protection of Rights on Marriage)
Act of 2019, popularly known as the anti-triple talaq law. The facts of the
case show that the Act is being as gravely misunderstood as was, and still is,
the true Islamic law on divorce.
The
background of the anti-triple Talaq law needs to be explained. The blatantly
anti-women divorce customs prevalent in pre-Islamic Arabia had been given a
severe blow by the teachings of Prophet Muhammad who was, indeed, a great
social reformer. Demonstrating the truth of the saying “old habits die hard”,
unscrupulous men innovated, in the course of time, 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 nipping in the bud that abominable innovation, law
men of the time called it Talaq-ul-Bidat and declared it to be “sinful
but effective”. This self-contradictory concept remained in vogue for centuries
in Muslim societies across the globe. Twentieth century reformers in some
Muslim-dominated lands at last woke up to the need to save families from
devastation and demanded that what was “sinful” by religion must not be
enforced by law. Country after country in Asia and Africa gradually abolished
by legislation the detestable practice of triple talaq.
India took
a much longer time to follow suit. During British rule, courts accepted and
enforced this “sinful but effective” form of divorce calling it a concept “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 among them
— tried to awaken the custodians of state authority to the need for its
abolition. A Muslim judge 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 also demanded that what was bad in theology should be bad in
law too. Finding that legislation required for it was nowhere in sight, the
apex court of the country tried in some cases to indirectly curb the archaic
practice and eventually outlawed it in the Shayara Bano case of 2017. The
anti-triple talaq Act of 2019 was the outcome of this judicial reform.
Section
498A of the Indian Penal Code (cruelty to a woman by her husband or his
relatives) is often misused. This undeniable fact was once acknowledged by the
apex court, though it had to withdraw under feminist pressure the measures it
had directed to curb the trend. Like the said provision of the Penal Code, the
anti-triple talaq law of 2019 is also prone to misuse and their dishonest
combination may play havoc with families. In the triple Talaq case under
reference, lawyers of a Kerala woman had included her husband’s mother in the
FIR filed against him under the 2019 Act by vaguely alluding to the said IPC
provision. 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.
The
provision for bail to be granted to the accused husband under Section 7 of the
2019 Act has been particularly misunderstood. Many lawyers misbelieve that it
overrides the general provision for anticipatory bail under Section 438 of the
Criminal Procedure Code. Soon after the enactment of the Act, a man accused of
committing the offence it had created sought anticipatory bail in the Bombay
High Court. His wife’s lawyers argued that the non-obstante clause in Section 7
of the Act had rendered the CrPC provision inapplicable to cases under its
provisions. Rightly rejecting the argument, the court granted bail.
In
contrast, in the case under reference, the Kerala High Court had accepted the
same faulty argument to refuse bail to the accused husband’s mother, who then
had to knock at the apex court’s doors. Explaining the position under the Act,
the court 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 significant step towards preventing the misuse
of the anti-triple divorce law.
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Tahir
Mahmood is Distinguished Jurist Chair and Professor of Eminence, Institute of
Advanced Legal Studies, Amity University.
Original
Headline: Flawed understanding of triple talaq law is leading to its misuse
Source: The Indian Express
URL: https://newageislam.com/islam-politics/triple-talaq-law-being-gravely/d/124026