Criminal law is the most direct expression of the relationship between a state and its citizens. Thus in 14th century European states laid down that “if an ox gores a man or a woman, that they die: then ox shall be surely stoned, and his flesh shall not be eaten.” The most well-known definition of ‘crime’ is ‘an act or omission prohibited and punished by law.’ Criminal sanction is the most coercive method of regulating an individual’s behaviour which a state may deploy. But few in India understand that criminal law’s promise as an instrument of safety is matched only by its power to destroy. Nowhere in the entire legal field is more at stake for the community or for the individual. The Narendra Modi government’s proposal to punish triple talaq with three years imprisonment therefore needs closer scrutiny on the touchstone of the first principles of criminal law.
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’. But 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 demands 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 decriminalised. Adultery by women or an adulterous relationship with unmarried or divorced or widowed women is not punishable even in India. Only men are punished for adultery. Now the apex court is going to examine constitutionality of adultery law.
Parliament’s power to make triple talaq a criminal offence?
In the triple divorce judgment of August 22, 2017, the minority view of Chief Justice J.S. Khehar and Justice Abdul Nazeer was that triple talaq is a valid form of divorce under Muslim law and the right to follow personal law is an integral part of freedom of religion. But if parliament so wants, it may enact a law on it. No one should question parliament’s power to legislate in respect of ‘personal laws’ in exercise of its legislative powers under Entry 5 of List III and thus it can certainly bring in a law outlawing triple talaq. But since the majority of three judges had already ‘set aside’ triple talaq and under Article 141 of the constitution, majority view is the ‘law declared by the Supreme Court’, there is basically no need for any law as triple talaq no more dissolves marriage. Since the court did not explicitly state the consequences of three pronouncements, parliament by law may lay down that three pronouncements will count as one revocable divorce. This is the legal position in most Muslim countries whose examples were cited by the government in the apex court. Nowhere in its judgment has the Supreme Court said that triple talaq be criminally punished.
Also read: The Triple Talaq Ruling Is a Step Forward, but There Is a Long Way to Go for Gender Justice Laws
The stand of the government that it had to enact this law due to 67 cases of triple talaq after the apex court’s decision is not correct. Two months is too short a time to create awareness about a Supreme Court decision. The government instead of penalising men should first try to create legal awareness among Muslim men. It can also use the services of the All India Muslim Personal Law Board for this. The AIMPLB had resolved against instant triple talaq in April, 2017 in its Lucknow meeting.
A number of Supreme Court judgments are not complied with on a regular basis both by the Central as well as state governments. Moreover, the belief and expectation that the mere fact that if some wrongful conduct becomes a crime, people will resist from indulging in it too is erroneous and has not been proved by any authentic empirical research. As a matter of fact there is no relationship between the incidence of crimes and punishment. Even death penalty is not an effective deterrent. Murder, rape, robbery etc. since antiquity are major crimes with heavy punishments but their rate has only been going up.
After the December 16 Delhi gang rape we made our law far more stringent in terms of broader definitions of crimes against women and enhancement of punishments but these changes have not succeeded in bringing down the rate of rapes and other sex crimes. In the last decade, 2.24 million crimes against women were reported, with a rate of 26 crimes per hour. Cruelty by husbands is a major crime, yet in the last ten years as many as 909,713 such cases were registered which translates into ten cases per hour. Similarly every hour, five women are assaulted with the intent to outrage their modesty, three are kidnapped/abducted and three are raped.
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. By making triple talaq a penal offence, the Modi government is in fact accepting the view of the conservative Ulema, who had taken the position that while triple talaq validly dissolves marriage in accordance with decision of second caliph Omar, the person making three instant pronouncements is liable to punishment.
There are other intricate issues about making triple talaq a criminal offence – are we going to insist on mens rea (guilty intention) or make triple talaq a strict liability offence which would mean that even if the person did not intend to divorce his wife, he would still be punished for merely uttering the word ‘talaq’ thrice. The Supreme Court had held that even seditious words or anti-national slogans do not constitute sedition. Moreover, generally triple talaq is pronounced out of extreme anger when reason takes a back seat and the man does not know the nature and quality of his act, or that what he is doing is contrary to law. This mental state is called ‘insanity’ and is an exception from criminal liability under section 84 of the Indian Penal Code. The new law cannot withdraw this exemption. Even the regressive AIMPLB has laid down that triple talaq pronounced in extreme anger does not dissolve marriage.
Since the cardinal principle of criminal law is the presumption of innocence and the burden of proof is always on the prosecution, which has to prove the case beyond any shadow of doubt, how will a poor wife prove instant oral triple talaq? At least WhatsApp/SMS divorces lighten her burden. Moreover, since marriage is not dissolved by triple talaq, why should she, by filing a criminal case, give her husband the opportunity to divorce her over an extended period of three months? Are we going to save marriages or try to break them through this new law?
Also, since law makes the husband liable to pay maintenance, how will he do this if he is sent to jail? As a matter of fact, triple talaq is largely prevalent amongst the lower strata of Muslim society who earn their livelihood by earning daily wages. By sending him to jail, we may be creating more hardship for the divorcee and her children.
Is three years imprisonment justified?
The crucial question is: On what basis has the new law provided for three years imprisonment on pronouncing three divorces in one go? Have we bothered to look at the rationale behind this? Why did the government not look at the punishment scheme of the IPC – the general criminal law of the country?
What are the crimes that IPC has three years imprisonment for? Even for Sedition (Section 124A), one of the punishments is imprisonment for three years, to which a fine may be added; for rioting armed with deadly weapon – imprisonment for three years or fine or both (Section 148); for promoting enmity between classes of people – imprisonment for three years or fine or both (Section 153A); for making, buying or selling instruments for the purpose of counterfeiting of Indian coins – imprisonment for three years and fine (Section 233); import and export of counterfeit coin – imprisonment for three years and fine (Section 237); for malicious insulting of religion or religious beliefs of any class – imprisonment for three or fine or both (Section 295A). These serious crimes are in no way comparable to an individual who instead of taking three months to divorce his wife just took one minute making all three pronouncements at once.
A cursory look at other crimes and their punishments would give us an idea of the quantum of punishment; causing death by rash and negligent act – imprisonment of two years or fine or both (Section 304A); rioting i.e. whenever force or violence is used by unlawful assembly – imprisonment of two years or with fine or both (Section 147); wantonly giving provocation with intent to cause riot – imprisonment of one year or fine or both (Section 153); bribery – imprisonment for one year or fine or both (Section 171E); negligently doing any act known to be likely to spread infection of any disease dangerous to life – imprisonment of six months or fine or both (Section 269); destroying, damaging or defiling a place of worship or sacred object with intent to insult the religion of any class of persons – imprisonment for two years or fine or both (Section 295); undue influence at an election – imprisonment for one year or fine or both (Section 171F); false statement in connection with election – fine (Section171G); illegal payment in connection with elections – fine up to Rs 500 (Section 171H); adulterating food or drink intended for sale so as to make the same noxious – imprisonment for six months or a fine of Rs 1000 or both (Section 272); dealing with any explosive substance – imprisonment of six months or a fine of Rs 1000 or both (Section 286); public nuisance – fine of Rs 200 (Section 290); dealing with any poisonous substance so as to endanger human life – imprisonment for six months or a fine of Rs 1000 or both; forgery-imprisonment of two years or fine or both (Section 465); causing hurt by an act which endangers human life – imprisonment of six months or a fine of Rs 500 or both (Section 337); wrongful restraining any person – imprisonment of one month or fine or Rs 500 or both (Section 341); assault or use of criminal force – imprisonment of three months or a fine of Rs 500 or both (Section 352); criminal trespass – imprisonment of three months or fine of Rs 500 or both (Section 447); cheating – imprisonment of one year or fine or both (Section 420).
In fact, for fear of prosecution, many Muslim men, just like Hindus, instead of divorcing their wives may now simply abandon them. Our criminal justice system is slow so it will take years to get a man who has given triple talaq finally punished after exhaustion of appeals and revisions. Thus no useful purpose is going to be served by the new law.
No social law can really succeed in solving social problems. Law is not a great agent of social control. Haven’t laws like Child Marriage Restraint Act and Dowry Prohibition Act failed? Ideally, divorce should not be treated as the end of the world for the divorcees. We must remove stigma attached to divorces. Our women can move on in life without the support of any man but if they want to marry, they must be encouraged to start afresh. There is no need to overemphasise the sanctity of marriage. It is a civil contract and like any other contract, it can be terminated with adequate protection under civil law in the interest of concerned parties.
At best, triple talaq may be treated as a civil wrong. If we really want to send people to jail for giving triple talaq, this too is possible under civil law. Our lawmakers should know that even in civil cases one may get imprisoned. There can be imprisonment for non-payment of debt or maintenance or contempt of court. Thus, triple talaq may be considered nothing more than the civil contempt of Supreme Court.
Faizan Mustafa is the vice chancellor of NALSAR University of Law, Hyderabad. The views expressed are personal. The article is revised and expanded version of article published in The Hindu.