Discussion about Triple Talaq

1. The couple’s marriage and the criminal culpability are mutually exclusive
• Till now, we were under the assumption that claiming that the marriage is still
valid would harm the prosecution’s case, as then the act would not apply. Thus,
when the defendant argues that he said triple-talaq in a fit of rage, we tried to
find case-laws that stated that once triple talaq is said, it cannot be taken back,
and is valid.
• However, as per section 3 of the Act (Muslim Women’s Protection Act 2019), any
conveyance of the word talaq (in manners written, spoken, etc.), are VOID and
ILLEGAL.
• This basically means that the couple is still married. The divorce has not
occurred, as the triple talaq in void.
• However, even though the triple talaq is void, the act of utterance of talaq is still
a crime. Therefore, whether the couple is married or not, the husband is still
liable criminally.
• Therefore, if the defense argues that he didn’t mean to say talaq, and hence the
talaq is not valid, and hence he cannot be penalized under the act, the
prosecution can state that no one is contesting that they are still married, as the
act itself states that the triple talaq is void. However, the actus of uttering the
triple talaq words are a criminal offense, and thus the husband can still be
convicted, no matter that he is still married.
2. Triple Talaq words may not be valid.
• It was sir’s contention that in section 3, when talaq needs to be expressed in
“written, spoken, electronic, or any other manner”, these are simply referring to
the mode of communication. However, the act makes specific use of the word
talaq, and hence it cannot be uttered in some other language.
• As for the definition of talaq given in the act (2c):
“"talaq" means talaq-e-biddat or any other similar form of talaq having
the effect of instantaneous and irrevocable divorce pronounced by a
Muslim husband.”
Sir stated that “any other similar form of talaq” does not necessarily cover
different languages. He said that we need to look into Sharia law (Hadith and
Sunnah) in order to understand the importance of the specific word “talaq” in its
Arabic form.
• So in sir’s opinion, the defense could put forth the argument that since it was
said in 3 different languages, it is not a true utterance of “talaq”, and hence not
under the gambit of the act.
3. Retrospectivity not applicable to criminal statutes
• Sir gave a constitutional provision stating the retrospective effect of law cannot
be applicable to criminal statutes, which is Art. 20(1):
“No person shall be convicted of any offence except for violation of the
law in force at the time of the commission of the act charged as an
offence, nor be subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the commission of the
offence”
• However, Sir also said that to this, prosecution could argue that the Ordinance 2
was in effect, and that under Art. 13 an ordinance is the law.
“In this article, unless the context otherwise requires law includes any
Ordinance, order, bye law, rule, regulation, notification, custom or usages
having in the territory of India the force of law; laws in force includes laws
passed or made by Legislature or other competent authority in the
territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part
thereof may not be then in operation either at all or in particular areas”
4. **Sir was also stumped about the jurisdictional issue. He does not know any reasoning
for why the case was shown before the Sessions court instead of the JMFC.**
• That being said, he stated to look up the legal definition of blood relative in
Halsburys, Black’s Law, or any famous legal dictionary in order to understand if
third cousins can be considered blood relatives (check words like consanguinity,
degrees of consanguinity, blood relation).
• I found a link to this random dictionary that basically states that fifth degree of
consanguinity is the last degree (https://legaldictionary.net/consanguinity/). It
also stated that second cousins come under 5th degree blood relations, so 3rd
cousins would be way beyond that degree.
• It would be great if we could find legal degrees of consanguinity in Halsbury’s
Law of England (checked Black’s Law and it’s not there) or in some old English
case laws.