Months after the Union Cabinet cleared an ordinance to criminalise instant Triple Talaq, the negative implications of making the practice a punishable offence is still debatable. The ordinance managed to disregard all the resistance from the political opponents and the Muslim clergy and came into action on the ground that the controversial custom, declared unconstitutional by the Supreme Court, was still being used against women of the minority community. However, other forms of customary divorce are still available as a remedy for a Muslim husband wanting to divorce their wife.
One of the major drawbacks of the Indian judiciary is that the laws are made by the legislators who are not trained in legal knowledge and there comes another side of the story i.e. the misuse of the criminalisation of Triple Talaq.
The Bombay High Court on Tuesday granted anticipatory bail to the husband Intekhab Alam Munshi, the man accused of giving instant talaq or talaq-e-biddat to his wife under the Muslim Women (Protection of Rights of Marriage) Ordinance. Vasai resident Munshi got married in December 1998 and has three children. Since the famous judgement on Triple Talaq, this is for the first time that a Muslim wife attempted to book a case against her husband for Triple Talaq by making a complaint that she has not received the first two notices of the husband and has received only one notice for Talaq.
While as per the wife, Munshi had sent her a notice for Talaq-e-Ahsan on September 22, 2018, three days after the landmark ordinance was put into effect, the husband Munshi claimed to have sent three notices as per the customary law on three periodic months and also ensured that the same was served six times to avoid period of iddat or purity (as the women cannot be given talaq when she has her menstrual periods). Even the last notice mentioned that two notices had already been served to the wife and hence, the case becomes legal.
Moreover, the wife (40) has also claimed that her husband had manipulated the dates of notices to suit the law and it was, indeed, Triple Talaq and a violation of the ordinance.
Keeping this particular case in the notice, many activists and even legal experts have raised a doubt on the possibility of the case filed by the wife being manipulated. They have also blamed the society that prefers to see and quick judge only a one-sided narrative when cases like dowry/domestic violence take place and make it impossible for the male partner to even prove their part. The legal experts have also shared the gloomy picture of the society where misuses of these laws have made deep scars on many families.
A member from the Law fraternity on the condition of anonymity expressed, “The Judge conveniently ignored to notice that the wife has willfully misused the ordinance of Triple Talaq and the judicial machinery. Had I been the Judge, I would have suo motu used my inherent power to issue a process against the wife for filing a wrong complaint.”
The marriage is 20-years-old and upon the FIR filed by wife, the husband has to apply for anticipatory bail to seek protection against arrest and sometimes AB is allowed with conditions that may include deposit of bail amount or persons to stand as surety to ensure that in the event a person goes absconding to person’s standing as surety for him can be availed. And this often brings the husbands under pressure and to avoid the harassment, they settle the matter by paying exorbitant money. While the legal accusations against Munshi are under judiciary but doesn’t this case highlight how Indian lawmaking machineries badly need a Uniform Civil Code for the family matters to avoid the filing of false cases and save many families from being unnecessarily harassed and defamed?
On the condition of anonymity, a lawyer from Bangalore spoke to AV and said, “Every law always has its story of misuse or exploitation and Triple Talaq is no exception. The recent case in the Bombay HC is just the start. We have already seen instances where the laws for Dowry or misbehaving at the workplace were taken advantage of. Religious customs should not matter when it comes to law and the Uniform Civil Code is the need of the hour.”