Interpretation and pre-judicial review of “Tripple Talaq Ordinance” and criticism of intension of legislature behind the ordinance
The Muslim Women (Protection of Rights on Marriage) ordinance, 2018 was promulgated on September 19, 2018. Muslim Women (Protection of Rights on Marriage) Bill, 2018 was introduced and passed in Lok Sabha on December 28, 2017 and is currently pending in Rajya Sabha. So the state choose the path of ordinance to apply these penal provisions. But this ordinance put a question mark upon the law making process of our country. Law making should not be a subject of emergency, unless and otherwise needed so in the extreme situations. There is no such reason and emergency situation to adopt this path of ordinance to apply penal provisions in hurry in regards to pronouncing of triple talaq by muslim husbands to his wife except dirty politics tricks. Ruling party just want to allure mulsim women votes for the coming state elections going to be held shortly in some states, but they forget that it may be result in to self-goal as a good share of our community (even hindu, muslims or relates to any religion) is showing dissenting views upon the issue of criminal liability in civil wrongs and moreover the way to apply these provisions via ordinance route is also depreciated by the public.
This ordinance compels to legal jurists, activists, judges, academicians, law students and other professionals to think and re-look over the jurisprudence of criminal liability in civil wrongs and to look upon the theories of punishments. There is a need to re-look the extent of criminal liability in civil matters that can be given under some extreme situations. For this, firstly we have to look the extent of civil liability and criminal liability separately.
Civil Liability– civil wrong is a wrong against the private individual and the remedy is damages. The remedy is measured by the wrongful act and the liability depends upon the act not on the intension.
Criminal Liability– Crime is a wrong committed against the society and remedy is punishment. Liability in a crime is measured by the intension of the wrongdoer.
Actus Reus with guilty Mens Rea results in to crime. Unless these both components are not present, an act is not a crime.
A civil wrong ordinarily attracts civil remedy, whereas it attracts penal laws in extreme extraordinary situations, still not too much harsh in that cases also, and only to compel to the wrongdoer to compensate to the remedy seeker as per judgement, decree or order. And in that case, if wrongdoer provides the remedy at a later stage, even then that criminal liability is suspended.
Pains and Pleasure rule given by “Jeremy Bentham” – If we put this ordinance under the test of rule of pains and pleasure as supported by our renowned jurists and which makes the basis for awarding the punishment, even then this ordinance fails. As per this rule, there will be no pleasure to women in awarding punishment to her husband. Because, after imprisonment, it is must that marital relations will not remain the same and it will tend towards destruction of the marriage and the sole cause for that effect after the imprisonment will be the complaint of such wife made under this ordinance. Thus the pendulum of pain and pleasure will not be balanced under this ordinance and both parties will stand on the same footings of pain and pain only which results in to the dissolution of marriage.
Presumption of innocence – One of the fundamental Principals of criminal law is that everyone is presumed to be innocent until and unless his guilt is proved by the prosecution. But this ordinance, overrule this presumption also and there is no reason to make this law as exception to the general rule. Under this ordinance a complaint can be made by wife or her blood or marriage relatives and the offence is classified as non-bailable and cognizable offence, which makes this offence grievous in nature. Moreover, the provision of 3 years punishment is too much punitive as this is given in heinous crimes under IPC, like 3 years for rioting armed with deadly weapons, 3 years for imputations to National integration, 2 years for threatening a public servant, 3 years for making, buying or selling instruments for the purpose of counterfeiting coins, 3 years for import or export of counterfeit coins, 2 years for causing death by rash or negligent act, 3 years for attempt to commit culpable homicide, 3 years for causing miscarriage, 3 years for causing hurt with dangerous weapons, 1 to 3 years for sexual harassment to a women.
It means this ordinance place the husband on the pedestals of grave offender and police can make immediate arrest on mere filling such complaint by wife or her relatives. There is no need for pre- investigation under this ordinance. The husband can apply for bail in the court, that too can be taken by the magistrate only after hearing the women and if he thinks that there are such grounds to release the accused. In no case, it can be assumed that any wife making such complaint against her husband will give evidence in favour of her husband and most likely, she gives the statement that her husband had pronounced triple talaq following the consequences under the ordinance. In that situation, the court having discretion to take bail from the accused, may or may not release the accused upon such bail. It means prima facie, this ordinance overrules the presumption of innocence and presumes the husband guilty until and unless he proves otherwise.
Beyond reasonable doubt–
To make a person criminally liable, there is need to prove the case beyond reasonable doubt in strict sense, but it is nowhere mentioned in this ordinance that which situation makes the case proved beyond reasonable doubt by the wife. One thing is sure that courts cannot weave a new story beyond the threads of criminal procedural laws and it will differs from case to case to prove such facts beyond the reasonable doubt. In case, a husband retract his act and refuse to accept that he had pronounced triple talaq to her wife, which will be the most like situation for the sake of preventing himself from the conviction, then it will be difficult to prove the case on merits and on mere suspicion or sole testimony of wife without any corroboration, it will be very difficult to rely on either statement of any party and it must leads to acquittal of accused by giving him benefit of doubt and the purpose of the ordinance will be defeated resulting in to just wastage of time. In rare cases it can be assumed that a husband will admit his guilt or wife have any direct evidence to prove the case beyond reasonable doubt, if there is no other witness present and generally, it is also not possible to record such conversations made between husband and wife.
Is Sole testimony of wife without corroboration is sufficient for conviction – Now the question arises before us that, can a court rely upon sole testimony of wife alleging the facts of pronouncement of triple talaq by her husband to her to convict her husband? Under sec- 134 of Indian evidence act, it is given that no particular number of witness is required to prove the case. It may be one or more. The gravity of this offence is not so much grave that it will compel to state to put the husband behind the bars for three years on mere suspicion and it is just a matter of fact that, whether there is any harm done to wife by the husband by such act, if so, then it must be corrected. But as discussed, in the case of lack of evidences, it will be almost impossible to prove the beyond the reasonable doubt and acting blindly by the courts to just achieve the corrupted target of ordinance on relying upon sole testimony of wife will further leads to destruction of society only.
Ruling in Shayara bano case – In this case, Supreme Court negate the effect of triple talaq and held that it has no effect on the subsisting marital relationship and the words of Supreme Court seems to be consonance with the state responsibility to save the marriage generally. Two of five Judges bench held that triple talaq is unconstitutional and one judge held it as anti – Islamic practices being not a part of Holy Quran. The majority opinion of the court seems to accept the state responsibility of saving marriage, but the state itself keep their foot at deviance and stands apart from its responsibility, because they don’t focus on saving the marriage but to convict the husband only. Can we assume that when a triple talaq have no effect upon the marital relationship, even then a wife will make such complaint to just convict her husband? Can conviction be a motive of wife, who wants to live in conjugal relations with her husband? Is conviction resolve the conflict between the parties? If answer to these questions are not affirmative, then what is the need of this ordinance?
Comparison with other personal laws and our Constitutional provisions – In our country, a major part of population is governed by Hindu Laws. If we compare the Hindu Laws and this ordinance then we found no parity between these laws. Under the Hindu Laws, Divorce is possible by court proceedings only and in case if either party desert the company of other then the defendant have the remedies of either restitution, maintenance or divorce in unavoidable situations. The court do every effort to bring the party on parity and remove all the doubts from their minds and purpose of this act is mainly to save the marriage. The court move ahead towards the divorce proceedings only when such a situations arises that a marriage is breakdown irretrievably and there is no chance of re-union of both parties.
Surprisingly, on the one hand, Article – 44 of Indian Constitution puts the responsibility upon the state to secure for the citizens a uniform civil code and ruling party have uniform civil code as one of its three core issues upon which they are contesting their previous elections and on the other hand, state supports for such sparingly and defective laws and choose the divergent path instead of making universal personal laws. This seems just dirty politics tricks and nothing more but I surprised, how a Govt. can choose divergent path from the directions of the supreme power of the Nation i.e. our Constitution.
Adverse effects – As discussed above in detail, the intension of the legislation behind this ordinance is not constitutional. It may be strike down by the Supreme Court, if challenged upon above discussed grounds. Moreover, there is no reason to believe that this ordinance will serve the society in a better way than earlier situations, because the very purpose of this ordinance is just to put the husband behind the bars only, which is not correct intension. A husband arrested under this ordinance, upon a false or vexatious complaint may also lose his job and he will surely lose his name and fame that he have earned in the society. There is no pre-checks to prevent for filling of false or vexatious complaints and the husband will become just a puppet of his wife.
Criticism and conclusion – I strongly criticize this practice of state for developing a new jurisprudence of criminal liability in civil wrong as there is no need to take such steps and that too in such an emergency mode that they had choose the ordinance path instead of making debate in the upper house, where they know that it is difficult to get it pass without the support of opposition. Discussion is not bad and it should not be avoided in a democratic nations like ours. Sometimes, a remedy is worse than a disease, and it will be proved by the aftermath of this ordinance.