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4.Section 7 of this Act makes the offence cognizable and non-bailable.

But all offences


relating to marriage are kept in the category of non-cognizable offences under the Code of
Criminal Procedure. This amounts to the selective targeting of the people of a particular
religion with stringent laws violating Article 14 of the Constitution.
Section 7 of The Muslim Women (Protection of Rights on Divorce) Act 2018 makes the offence cognizable and
non-bailable. A cognizable offence is one in which the police can arrest the accused without any warrant (according
to section 154 of the Code of Criminal Procedure, 1973). When all the other offences relating to marriage –
according to the First Schedule of Classification of Offences – have been kept in the category of non-cognizable
offence (i.e, a warrant is necessary to make an arrest), this particular offence has been made, despite being an
offence relating to marriage, a cognizable one. This amounts to the selective targeting of the people of a particular
religion with stringent laws. At a time when minority communities are already suffering from hate crimes like mob
lynching, such a legislation will only add to their growing distrust towards the system.

4.1 There is no reasonable differentia in doing so and it violates article 14.

Even if the wife says he (her husband) has not given divorce and that it was a wrong report (on the matter), police
will say you have to prove that in court and that we have to arrest. This is a strange legislation.

The governmental action of including only the offences relating to marriages of muslim 1 falls under the definition of
‘law’ as defined under Article 13(3) (a)2 of the Constitution, as the law in Article 143 is not confined to the law
enacted by the legislature but includes any order or notification4. The petitioner contends that the inclusion of the
offences relating to marriages of muslim as cognizable offence is violative of Article 14 of the Constitution. Article
14 envisages equality before law and equal protection of laws. The Supreme Court has aptly observed that ‘Equal
Protection of Laws is corollary to Equality before Law and in substance both the expressions mean the same’. 5 The
principle of equal protection does not take away from the state the power of classifying persons for the legitimate
purpose.6 But the doctrine of Reasonable Classification must not be over emphasized as it is only a subsidiary rule
involved to give practical content to the doctrine of Equality and therefore the doctrine of equality should remain
superior to doctrine of classification.7 As per law the classification8 should be based upon two things9 firstly, it

1
Fact Sheet,
2
Art. 13(3)(a) of Constitution of India, 1950
3
Art. 14 of Constitution of India, 1950
4
State of West Bengal v. Anwar Ali Sarkar AIR 1952 SCR 284
5
Id.
6
State of Bombay v. Balsara F. N.AIR 1951 SC 609
7
Mohd.Shujat Ali v. UOI, AIR 1974 SC 1631
8
“Classification means segregation of classes which have a systematic relation, usually found in common properties
and characteristics.” 2 ACHARYA DR. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 1396 (8th
Ed., LexisNexis Butterworths Wadhwa Nagpur, 2007)
9
Kangshari v. State of W.B., 1960 SC 457(484): (1960) 2 SCR 646; KedarNath v. State of West.Bengal. 1954 SCR
30 AIR 1953 SC 404; Ram Sarup v. Union of India, AIR 1965 SC 247(252): (1964) SCR 931
should be based upon the Intelligible Differentia10 and secondly, the Intelligible Differentia should have a
rational nexus with the object sought to be achieved11.

There is no intelligible differentia for the inclusion of offences relating to muslim marriage as
cognizable and that there is no reasonable nexus with the object sought to be achieved.

Criminalization of this act does not emanate from any part of any of the three judgments rendered by the Supreme
Court. This is why in proposing this legislation the government has exposed its dubious intent of targeting Muslim
men, who are now liable to be prosecuted for breaching a civil contract, a Muslim marriage being a contract of a
civil nature. The offences relating to marriage would now be a cognizable offence while the same is not true for
hindu divorce cases they are still a non cognizable offence this violates article 14 of the constitution. To challenge a
law where a fundamental right under Article 14 is violated, the first duty of the court is to examine the purpose and
policy of the Act and then to discover whether the classification has a reasonable relation to the object which the
legislature seeks to obtain12. The object of The Muslim Women (Protection of Rights on Divorce) Act 2018 is to
ensure that “to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their
husbands”. Talaq here is defined as “talaq-e-biddat or any other similar form of talaq having the effect of
instantaneous and irrevocable divorce”. The draft law goes on to declare, in Sections 3, 4 and 7, that the
“pronouncement” of talaq-e-biddat by a person upon his wife in any form whatsoever “shall be void ”, and if the
said act of divorce is void means that there was no divorce so a muslim is punished for no reason and it is the
violative of the policy o the intent of act itself is violative of Article 14 of the Constitution as there is no rational
nexus between the Intelligible Differentia and the object sought to be achieved 13.

4.2 Disputes relating to marriage are personal in nature .

Now let us refer to the various provisions under the Code of Criminal Procedure pertaining to the private complaint
procedure and the cognizance taken thereof. Any Station House Officer, on receipt of information in writing or
reduced to writing reflecting commission of cognizable offence shall register the same as per the mandates of
section 154(1) of the Code of Criminal Procedure. In case of refusal on the part of an Officer in charge of the Police
Station to register the case, the person aggrieved may exercise the option to send the substance of such information
in writing to the Superintendent of Police concerned who shall either investigate the case himself or direct an
investigation to be made by any police officer subordinate to him in the manner provided by the Code. As far as the
cognizable cases are concerned, an officer in charge of the police station has authority to investigate even without
the sanction of the Magistrate. But, even in case of a private complaint of a non-cognizable offence received

10
“The expression Intelligible Diffrentia means difference capable of being understood. A factor that distinguishes
or in different state or class from another which is capable of being understood”. 2 RAMANATHA AIYER, ADVANCE
LAW MEXICAN, 2391, (3rd Ed., 2005)
11
LaxmiKhandsari v. State of Uttar Pradesh, 1981 SC 873, 891: (1981) 2 SCC 600; Budhan v. State of Bihar, AIR
1970 SC 1453: (1969) 2 SCC 166.
12
Kedar Nath v. State of West Bengal, AIR 1953 SC 835
13
Kangshari v. State of West Bengal, AIR 1960 SC 457
under section 190 of the Code of Criminal Procedure by the learned Judicial Magistrate, the officer in charge of a
police station can investigate like a cognizable case if it is referred by the learned Judicial Magistrate

There is a difference between civil law and criminal law. Only acts that cause injury and harm to others, such as
murder, theft and assault constitute criminal law. Marriage and divorce are not part of criminal law. Non-criminal
acts such as talaq must remain within civil law. Since 22 August, talaq-e-biddat remains illegal. Violations of civil
law must be punished, possibly with a fine.

4.3 What conduct becomes crime

A breach of contract is a private wrong i.e. violation of personal right (right in personam ) and therefore law
provides for liquidated damages which are fixed by parties themselves at the time of entering into contract.
Violation of general legal right (right in rem) too is a civil wrong of more serious nature and therefore is
redressed through unliquidated damages i.e. court fixes the amount of compensation. A crime is a violation of a
general legal right which, if not controlled, will endanger peace and stability of society and therefore it is the
state which prosecutes the accused and punishes the convict on behalf of entire society. The most universally
assumed aim of the criminal law is averting harm. John Stuart Mill accepted that the state could intervene in the
liberty of personal conduct ‘to prevent one individual from harming another’. B ut then every harm cannot
become ‘crime’. The harm needs to be real, unavoidable and serious and thus human behaviour which is merely
offensive cannot be necessarily declared as ‘criminal act.’ Thus all harmful acts may not be ‘crimes’. Criminal
law therefore, is to be used as a last resort for the more reprehensible wrongful acts. Triple talaq which does not
dissolve marriage is not such a harm which can be declared as a crime.

‘Crime’ has always been regarded as a ‘moral wrong’ and criminal conduct demand s social retribution. It is a
different story that what has been moral and legal for centuries, the state can overnight, exercising its sovereign
powers, make illegal. Criminal law and morality, therefore, are not co-extensive. Polygamy was permissible for
centuries under Hindu law but then the newly independent Indian state, adopting western culture, in spite of the
Hindu right’s opposition, decided to make it a crime. A similar decision was made about dowry. Even immoral
conduct can thus be legal if the state so decides. Adultery in most western countries is not a crime.
Homosexuality too is now being decriminalized. Adultery by women or an adulterous relationship with
unmarried or divorced or widowed women is not punishable even in India. Only men are pun ished for adultery.
Now the apex court is going to examine constitutionality of adultery law. Cases of triple talaq are rare and the
practice is already on its way out. Moreover, since triple talaq no longer dissolves marriage, its pronouncement
is inconsequential and in no way adversely affects either the wife or the society and therefore it cannot and
should not become a crime