Criminalising Talaq

What is the issue?

The proposed law on instant triple talaq misreads the SC’s talaq judgment.

Why is the move illogical?

• The Centre’s has proposed a legislation to criminalise triple talaq (talaq-e-bidat), which is a way to instantly dissolve a marriage.
• This appears to be ill-conceived as it completely ignores the Supreme Court judgment that declared “triple talaq” futile and not integral part of Islam.
• Consequently, no Muslim marriage can be dissolved through instant triple talaq at present – thereby criminalizing it holds no ground.
• Notably, criminal jurisprudence states that no person shall be punished for an act that is not harmful to anyone.
• Hence, unless the husband physically/mentally harasses his wife by insisting that his talaq pronouncements have broken the marriage, there is no case.

What are the usual cases in talaq pronouncements?

• Most men have resorted to talaq-e-bidat, either in a fit of emotional rage, or out of a misunderstanding of Muslim law.
• 1^st case - When the pronouncement is in a fit of rage, men usually express regret within a short time as irrevocable divorce was never the intention.
• While the SC order helped in keeping marriages intact despite a pronouncement in such cases, the draft law seeks to stigmatise such mistakes.
• This might lead to eventual breakup of a marriage that wasn’t headed there.
• 2^nd case - In the second case, men think that instant talaq irrevocably breaks the marriage due to their reliance on sectarian fatwas.
• Here, the fatwas derive the validity of talaq-e-bidat from the disputed legacy of Caliph Umar’s rulings and its proponents oppose the SC ruling on talaq.
• Notably, instead of verifying the actuality of the Caliph’s ruling, most Muslim theologians had held a blind faith in it for long.

How has the draft law been perceived?

• Islamic View - Islam while recognizing Talaq-e-bidat (triple Talaq), believes that its use is the commission of a sin.
• Notably, even before the SC judgment, All India Muslim Personal Law Board (AIMPLB) had proposed social boycott as punishment for resorting to it.
• This probably explains why most Muslim religious organisations have not opposed the current draft criminalising triple talaq.
• The Confusion - But the SC has already declared instant triple talaq illegal and hence triple talaq is being ineffective.
• While instant triple talaq as such holds no significance currently, making its pronouncement an offence would mean recognizing it as a marriage breaker.
• This would be contrary to the SC judgement and also in alignment with the AIMPLB’s view of recognising it while seeing it as a sin.

What is the way ahead?

• The right approach would be to launch a massive campaign to publicise the Supreme Court judgment on triple talaq.
• Also, stopping Muslim theologians from issuing misleading fatwas on talaq is needed.

Source: Indian Express