Not All, Only husbands – Published in RisingKashmir

In a recently pronounced judgement, the Supreme Court said that a mother-in-law cannot be the accused of the offence of pronouncement of Triple Talaq under the Act of 2019, as the offence can only be committed by a Muslim man. However, while granting final direction in the judgement, the Court has bound the same mother-in-law to co-operate in the course of the investigation by the investigating officer and she shall only remain on bail on her personal bond of a certain amount. If it is clear that other than a Muslim husband, others cannot be subjected to criminality, why to allow such prosecution. This was a fit case to exercise special powers of the Supreme Court to close the proceedings against the mother of the husband as it has been done in the case involving personal liberty of individuals. While dealing with the issue Court has discussed the judgements relating to internal security of India, the Maharashtra Control of Organized Crimes Act, and the SC/ST Act. Certainly these matters deal with the strict criminal liability of an individual and are not in any manner comparable to the offence, as alleged in the said case relating to utterance of triple talaq by the husband. The executive needs to understand that such utterances cannot be criminalised the way it has been done.   

In any of the recently pronounced judgements, our highest court has not appreciated the main issue of concept of matrimonial accord between a Muslim man and woman. A true reflection of the legal status of Muslim marriages was explained by Justice Mahmood in 1885 when he said that, “Marriage among Muhammadans is not a sacrament, but purely a civil contract”. 

On the other hand, we have a recently passed judgement of three judges of the Supreme Court where in the context of arbitrability of disputes, the Court makes a general observation stating that “matrimonial disputes relating to the dissolution of marriage, restitution if conjugal rights etc., are not arbitrable as they fall within the ambit of sovereign functions” of the State. In effect, the Court has understood that dispute relating to marriages, without carving out an exception to the marriages of Muslims which is a civil contract, as inalienable sovereign and public interest functions of the state and, hence, mutual adjudication of disputes would be unenforceable.   

Accordingly, we have two different extremes of legal proposition. One relating to the utterance of the husband being examined under the strict liability criminal legislation, a creation of excessive criminalisation of an act. On the other hand, in civil jurisprudence, we have another view which categorises the matrimonial relationship as an issue of the government’s public function, by including it as a part of the sovereign function of the state.  Both ways of dealing with matrimonial issues, be it civil or criminal, are excessive.

The problem of this confusion, at least in relation to Muslim matrimony, is that the courts have not yet appreciated the fact that in sacramental marriages the notion of individuality has different connotations whereas marriage of Muslims, which is a civil contract, has much more individuality left with the marrying partners contrary to the projection that personal laws on this issue is anti woman. There are many practices relatable to the followers of Muslim personal laws which are becoming part of general law jurisprudence of 21st century. One example can be quoted where the Supreme Court states that live-in relationship of two major individuals cannot be interfered with. But at the same time, the Supreme Court wants to examine  legality of Mutah marriages, essentially a dying practice among Shias. This issue has been referred to a larger bench of the Supreme Court. Under general law of domestic violence, the Supreme Court says that “an unmarried woman unknowingly enters into a relationship with a married adult male, may, in a given situation, fall within the ambit of domestic relationship and consequentially she will be entitled to protection under the general law but in case a Muslim has married two wives with consent among all three, the court needs to examine the legality of the same because it is considered to be against public policy and public order. Out of these contradictory situations, only one proposition can be correct.  

There is no doubt that any violence against any person, including wife, has to be dealt with in terms of the Indian Penal Code or the provisions set out under the Domestic Violence Act. This will apply to all types of matrimonies be it a sacramental marriages amongst non-Muslims or a matrimony based on civil contract between a Muslim wife and husband.

Undoubtedly, we are passing through a regime where arbitrarily some action has been excessively criminalized and many other serious disorders in the society like communal violence have not been subjected to strict penal statutory provisions. The recent Supreme Court Judgement will pave the way for quashing many such warranted accusations emanating from Triple Talaq Act 2019. In many pending cases now the main issue is whether such legislations, criminalising an act of utterance of an ineffective utterance, can be subjected to strict criminal liability?

This article was published in the Rising Kashmir on February 25, 2021

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