Title: CONSTITUTIONAL VALIDTY OF THE NEW TRIPLE

TALAQ ACT, 2019

Subject: LEGAL SKILLS

Submitted by: SAYANTANI DE

BALLB, B
21
ABSTRACT
Triple Talaq comes under Muslim Personal Law (Shariat) Application Act, 1937 was an archaic
and redundant law practiced under the Shariat act which allowed instant divorce to the Muslim
community on pronouncing words ‘talaq talaq talaq.’ The government passed the new Muslim
Women (Protection of Rights on Marriage) act of 2019 on July 30, 2019. The new law proposes
to criminalise a Muslim man with a non bailable offence of imprisonment up to 3 years. The
accused can be arrested under cognizable warrant which means he can be arrested without a
warrant as stated by the Magistrate.
In 2017 the Supreme Court of India stated that practice of Triple Talaq is void and unconstitutional.
After years of trying to pass this draconian law, the BJP government finally passes it in the Rajya
Sabha. The article seeks to question the Constitutional validity of the new act and draws light upon
a few lesser known facts on Triple Talaq.
Triple talaq was an archaic and redundant law practiced under the Shariat act which allowed
instant divorce to the Muslim community on pronouncing words ‘talaq talaq talaq.’ It gave an
excessive amount of rights to Muslim men to pronounce the three words and exit the sanctity of
matrimony leaving behind all duties of marriage. Muslim women on the other hand fell prey to
such practices, not only being divorced on no actual grounds but also getting no compensation or
alimony for such an act. The practice has met with a lot of controversies mostly people vehemently
opposing triple talaq. This was further promulgated when the government passed the new Muslim
Women (Protection of Rights on Marriage) act of 2019 on July 30, 2019.
The new law proposes to criminalise a Muslim man with a non bailable offence of imprisonment
up to 3 years. The accused can be arrested under cognizable warrant which means he can be
arrested without a warrant as stated by the Magistrate. Introduced by the Minister of Law and
Justice Ravi Shankar, the Rajya Sabha passed the bill with 99 votes and 84 opposing it. This is
mentioned in clause 3 in chapter 2, clause 6 and clause 7(c) in chapter 3.
Clause 3 in chapter 2 says:1
“whoever pronounces Triple Talaq upon his wife shall be punished with imprisonment for a term
which may extend to three years and fine.”
Clause 6 in chapter 3 refers:
“a married Muslim woman shall be entitled to custody of her minor children in the event of
pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.”
Clause 7(c) in chapter 7 says:
“No person accused of an offence punishable under Triple Talaq law shall be released on bail
after the Magistrate, on an application filed by the accused and after hearing the married Muslim
woman upon whom talaq was pronounced, is convinced that there are reasonable grounds for
granting bail to the accused”.
The bill passed smoothly and replaced the 2018 ordinance of Muslim Woman (Protection of Rights
on Marriage). The BJP government has ardently tried to pass this bill since 2015 when the Supreme
Court of India had already declared Triple Talaq as void and unconstitutional.
Which brings to a vital question, was it really important to not just ban but also criminalise a
practice that had already been declared unconstitutional?

1
The Muslim Woman (Protection of Rights on Marriage)2019
Triple Talaq comes under Muslim Personal Law (Shariat) Application Act, 1937. Personal law
applies to a group of people based on laws constituting religion, faith and culture. It includes the
Dissolution of Muslim Marriage Act, 1939 and the Talaq-I-Tafwid, all of which comes under civil
law. Matters relating to personal law such as marriage and divorce are usually filed under a civil
court.
Therefore a civil case can only be tried in a criminal case if there is a criminal intent to an act. An
act of divorce on mere whim and fancy of a man can be inconsiderate and morally wrong but does
not contain criminal intent to it. Which brings to the next question, why was the government so
adamant to trial a civil case in a criminal court?
The practice was first questioned by a famous writ petition Shayara Bano Vs Union of India and
others on 22nd August, 2017. The Supreme Court on its verdict pronounced that the practice of
Triple Talaq is void and unconstitutional. It took the BJP government two years to frame a law
that could be passed under the garb of ‘gender equality’ when it was a pre-strategic move targeting
a community to hold a strong Hindutva power in the country.
This does not erase that Shayara Bano’s claim and the endurance to file a writ petition was not
only very important but a social necessity for all Muslim women to take up their space in society.
This was asking for equality in true sense. Nowhere in the case did she ask the court of law to
imprison her husband because it was not needed. The matter in hand was not grave enough to
criminalise the respondent. Shayara Bano was the sole bearer who had the courage to go to the
court and ask for her rights. Her rights included maintaining and preserving the sanctity of
marriage, asking for conjugal rights as she rightfully deserved from her husband. The cases that
followed were similar to the first judgement. Nowhere did the Supreme Court of India mention
criminalization of such a man under IPC. This is so because criminalisation of accused in a civil
case needs to be actually grave in nature to implement such harsh punishments.
Criminalisation of accused leads to infringement of article 21 of the Indian Constitution, 1950
which talks about right to life and personal liberty. The new law makes the assertion of triple talaq
as an offense more serious than crimes such as rioting, bigamy, bribery, food adulteration,
kidnapping, death by negligence or concealment of birth by secret disposal of the body2.
The Centre for Research and Debates in Development Policy (CRDDP) survey shows that the
practice of triple talaq is 1 out of 331 cases or 0.3%3. Surprising as it sounds, although there existed
a massive outcry by the society at large more so by the government of India yet the survey shows
that the practice of Triple Talaq is minimal.

2
The Jamiat Ulama-I-Hind noted in its plea that the new law has made the assertion of
triple talaq as an offense even graver than crimes including rioting, bigamy, bribery, food
adulteration, kidnapping, death by negligence or concealment of birth by secret disposal of
the body.
3
The Centre for Research and Debates in Development Policy Policy (CRDDP) survey shows
that the practice of triple talaq is 1 out of 331 cases or 0.3% on 17/05/2017 1:17 PM
The mass at large has been brainwashed by Hindutva nationalists and media asking everyone to
fight against this big demon called ‘Triple Talaq’ when in reality only miniscule number of Shunni
Muslim follow such practices. Which poses another question, does the government really care
about eradicating social evils or is it targeting towards a minority community in order show its
façade power?
Moreover, the new law promises no relief to the victim of triple talaq after his husband is sent to
prison for a period of three years on a non bailable offence. Hence the woman has to not only go
through a painful process of separation from her husband but also find herself running from pillar
to post to provide for her children and herself. This is an inconsiderate act on the part of the
government that promised to empower Muslim women and not throw them under the bus for an
offence their husband committed that does not exist anymore.
On August 2nd, the first ‘criminal’ was arrested from Thane, Mumbai. It is no secret that the Muslim
Woman (Protection of Rights on Marriage) has anything to do with ‘protecting rights’ of Muslim
women. This bill was introduced as an experiment by the right-wing party to promulgate and
terrorize a minority community under the façade of Hindutva power.
This isn’t the only experiment that the current government has pulled. Abrogation of article 370
and 35A that gave special status to Jammu and Kashmir, the passing of the Unlawful Activities
(Prevention) Act, the NRC bill in Assam and several other laws that were passed under the veil
development of the society. In all of these laws there is an unequal bias towards terrorizing a
community.
A large part of our country even believes that what the current government is doing is right, is
constitutional. This is so because large part of our country comprises of Hindus who are inherently
islamophobes. A country that is so diverse in religion, culture, class and creed yet we haven’t been
able to accept them for whatever they are.
The Muslim Woman (Protection of Rights on Marriage) says, “to protect the rights of married
Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for
matters connected therewith or incidental thereto.”
This act seems to contradict the Shariat act which contains personal laws relating to marriage and
divorce that the state has no power on. It violates the core fundamental rights of a citizen
completely ignoring the very fact of why it placed a ban on the subject.
Criminalising a person on the basis of his mere fancy is too heavy a punishment conferred upon
when there is an existing over-representation of Muslim men in prison. “Why is the government
so keen on conducting civil matters on a criminal court?
On what grounds is this act constitutional in nature? A few petitioners have filed writ petition
against the new Muslim Woman (Protection of Rights on Marriage) 2019 to be heard in the
supreme court questioning in fundamentality. It is upon the apex court to now decide whether it
wants to remain silent on sheer injustice and power play or strike the whole act altogether.
The practice is archaic but the punishment for it is draconian and unnecessary. It seeks to eradicate
a minority community on the wishes of a right-wing government’s fancy.