Triple Talaq Row; BJP proposed New law to jail Muslim Husband who spells Triple Talaq

“Criminal law is the most direct expression of the relationship between the state and its citizens. Pushing any practice to the category of crime is mostly an extreme situation since in a criminal law state uses its coercive method to control the behavior of an individual.” – Faizan Mustafa

Faizan Mustafa is the Vice Chancellor of the NALSAR University of Law and a legal expert. Professor Mustafa is closely observing the Triple Talaq issue from its inception and spreading the legal awareness over the subject.

The BJP government proposing a Bill in the winter session to criminalise the practice of instant Triple Talaq or Talaq-e-Biddat. The Central government is considering changes in existing laws and also amendments in The Muslim Women (Protection of Rights on Divorce) Act, 1986.

The Supreme Court of India earlier in the month of August abandoned the practice of instant Triple Talaq and directed it as ‘unconstitutional, that means the particular practice of divorcing will no longer consider a form of disunion even a person gives instant Triple Talaq.

However, going many steps forward the BJP led government now wants to shift a civil affair to a criminal offense. The government fully intends to treat Muslim husbands as a criminal for a practice which has already lost its relevance in a legal sphere. The draft formed by government seeks three-year jail and fine for Muslim husbands if he spells Talaq three times at a moment.

“We the people occasionally fail to understand that if criminal law is an instrument of safety and security than it’s also a mechanism of destruction. If any person is ever convicted in a criminal law than he or she loses the possibility of joining any government. The passport of the convict is supposed to be ceased by the authority and the social shame follows throughout the life” said, Faizan Mustafa.

There is a huge difference between civil and a criminal law and treating a civil affair as criminals will destroy the harmony in the system. The criminal law gives direct power to the state to control an extreme situation where there is a menace to the society or the nation through the coercive methods. Through criminal laws, the state is empowered to punish directly an individual with imprisonment or even death penalty.

However, in a matter of divorce, which is two-individuals affair doesn’t invite any threat to society or nation than why BJP wants to criminalise a civil affair?

Earlier Primemnister Narendra Modi and Chief Minister of Uttar Pradesh Adityanath Yogi showed their interest in Triple Talaq. They verbally intervene in the issue by making several public remarks. In fact, UP CM who earlier made a psychotic comment to rape dead Muslim women vowed to protect the rights of Muslim women.

The clearer picture of the government’s intention can be traced through the statement of Attorney General Mukul Rohtagi who represented the central government in the Apex court on the issue of Triple Talaq. He said, ‘Not just triple talaq, even the other two – Ahsan and Hasan – will have to go as all of them are unfair, unreasonable, discriminatory, unilateral, absolute, non-appealable’. He argued in the court to declare all three forms of separation as illegal and unconstitutional.

The court, however, turn-down AG Rahtogi’s argument and asked, “If all types of talk are banned, how will a Muslim man come out of marriage? There must be some options for him.”

He then replied: ‘Of course the state will step in. Centre will bring a law. There will be no lacunae.’

Now here is the law which intentionally wants to criminalise a civil practice. There is a need to understand that even if a husband utters triple talaq to his wife the marriage won’t break than whats the point to punish that person?

Faizan Mustafa in his web legal awareness series asked the question if the marriage stays as it is, the relationship remains the same and no effect observed in the society than why making the abolished practice a crime?

The BJP’s activism in entire Triple Talaq episode has also pointed towards its scheme of Uniform Civil code.

The other questions which need to be addressed if the government wants to abolish all form of Talaq practiced by Muslim than what would be the method for disunion? Do Muslims have to go through those lengthy judicial process to seek divorce and if it’s so then what about women? Does she have to fight and wait for years for the court decision? How will she be surviving in all these years?