By: Gaurav Puri
The social movement to abolish talaq-e-biddat i.e. triple talaq has been a long-standing movement in the judicial history of India. The Supreme Court, in the case of Shayara Bano v. Union of India and Anr had finally put an end to the practice declaring it to be against the ethos of the Constitution. The aforementioned Act intends to protect the interests of Muslim women who were furthering the constitutional goals of Gender Justice and Equality.
The Act criminalises the pronouncement of triple talaq in all its forms including, electronic form and prescribes punishment for the same. In the present article, the Act is evaluated under the scrutiny of Article 14 of the Constitution which has been a major debate since the passage of the bill. In the article the author will first highlight the salient features of the Act followed by scrutiny under the constitutional tests developed by the Judiciary, to check legislative action under Article 14. Lastly, the author will critique the Act in relation to Article 14 and suggest a way forward.
SALIENT FEATURES OF THE ACT
- Any offence under the Act is to be tried by the “Judicial Magistrate of the first class, exercising jurisdiction under the Code of Criminal Procedure, 1973”.
- The Act prescribes a punishment of imprisonment up to 3 years and fine.
- The offence under the Act is cognizable, non-bailable and compoundable at the instance of a Muslim woman who is the victim of triple-talaq.
- A subsistence allowance is to be paid by the husband to the wife, taking into consideration the dependent child/children if any, as determined by the Magistrate.
- The custody of the minor child/children if any remains with the Muslim woman.
- No bail application is to be entertained until the woman on whom the talaq has been pronounced, is heard.
CONSTITUTIONAL TESTS UNDER ARTICLE 14
Article 14 of the Constitution mandates that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
The judiciary has developed the following tests to check whether a legislative action falls within the ambit of Article 14.
- Reasonable Classification based on Intelligible Differentia
- Reasonable Nexus Test and
EVALUATION OF THE ACT VIS-À-VIS ARTICLE 14
Firstly, the critics of the Act argue that it certainly fails the test of Article 14 based on reasonable classification. In the case of State Of West Bengal v. Anwar Ali Sarkar, the doctrine was discussed as under:
In order to pass the test of permissible classification two conditions must be fulfilled viz. (i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others left out of the group, and (ii) that the differentia must have a rational relation to the objects sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct and what is necessary is that there must be nexus between them.
The argument that crops up against the Act is the criminalisation of divorce proceedings which is limited only to the Muslim community as no other religion uses criminal punishment in the matters of divorce. The basis of the contention is the unequal treatment of a specific religious group as against the others.
On the opposite side, it is believed that the practice of triple talaq is specific to the Muslim community, therefore, it forms the basis of reasonable classification towards a group. Therefore, the difference of punishment is based on the difference of practice in the Muslim community and it must be tackled by using imprisonment as a deterrent.
Secondly, Anwar Ali case highlights the reasonable nexus test that mandates the legislative action to be in consonance with the objective that the legislature seeks to achieve from the Act.
The objective of the Act is enunciated in the Statement of Objects and Reasons of the Act which is the protection of Muslim women against the practice of triple talaq. The questions raised against the Act in this regard are; whether the imprisonment of the husband tends to achieve the object sought? It is based on the ground that the section mentioning subsistence allowance as mentioned in the Act will be rendered useless if the person providing such an amount is imprisoned. Therefore, the idea of protecting the Muslim woman financially would fail.
Lastly, it is contended that the action of the State is arbitrary as it seeks to punish the Muslim man rather than protecting Muslim women. Further, it gives a huge disadvantage to the husband as the offence is non-bailable and cognizable. The offence is compoundable but only at the instance of the wife. Also, the act of divorce is not against the community as a whole but a matter between private parties hence not befitting the ambit of criminal law because crime is always against the society at large. Therefore, it is also a contention that the subject matter of the legislation cannot be criminal in nature.
The step of the Government to legislate the act is a positive one, an Act against triple talaq has been much awaited but the manner in which it seeks to remedy the situation is against Article 14 of the Constitution.
- In the view of the author, it is very clear that the punishment prescribed is unjust and unreasonable. It is the basis of any Court of law dealing with family matters to first try and reconcile the parties but no such provision exists in the present Act nor is there any scope of mediation.
- The role of the Judicial Magistrate here becomes of utmost importance so as to find out what the Muslim woman requires. It will be wrong to assume that each woman wants her husband to be punished for pronouncing triple talaq; it may also be the case that the wife wants reconciliation. Therefore, the intention of the wife must be considered by the Judicial Magistrate.
- Furthermore, it is a serious doubt as to how the husband is expected to pay the wife subsistence whilst behind bars. It completely defeats the whole purpose of the act as the woman may be rendered financially distraught without any support for her or her children if any, and may also hamper the use of the act due to the fear of the husband landing in prison.
- The offence being cognizable and non-bailable renders the husband helpless against situations where there may be any false allegations. It is trite law that legislation cannot be rendered unconstitutional just because it may be misused but the present Act provides the husband with no opportunity of defence. The same is coupled with a strict liability scheme where there is no requirement to prove intention as against the evidentiary principles of preponderance of probability or a reverse burden of proof on the husband. The Act henceforth may be classified as arbitrary.
The Act certainly, has been framed with a noble intention but there exist certain anomalies that need to be addressed and rectified over time. The role of the Judicial Magistrate is of utmost importance as a lot of the Act rests on his discretion, therefore, certain guiding factors must be laid down.
Hopefully, the Act, via judicial precedents, will provide more clarity to its applications, remedies and the unwarranted situations that may arise due to the strict nature of the legislation.
(Gaurav is currently a law undergraduate at Symbiosis Law School, Pune.)