Rajyavardhan Singh*
Source: IAS Express
This essay responds to Keiran Correia’s critique of the Muslim Women (Protection of Rights on Marriage) Act, 2019 by defending the constitutionality of criminalising triple talaq. It argues that the legislation does more than merely declare the practice legally void. It seeks to confront the continuing social harms that triple talaq inflicts – harms that disproportionately affect Muslim women. Far from violating the constitutional guarantee of equality, the Act addresses structural inequities within Muslim personal law rather than targeting Muslim men as a class. Anchored in Article 15(3), this essay contends that the law qualifies as a valid measure of protective discrimination aimed at correcting documented gender-based vulnerabilities. It is not a hasty turn to criminal law, but a carefully considered legislative response to systemic injustice that constitutional adjudication alone failed to address.
In a recent post on the Constitutional Law & Philosophy blog, writing on the criminalisation of tripletalaq under the Muslim Women (Protection of Rights on Marriage) Act, 2019, Keiran Correia argues that the Act is constitutionally unsound in its approach to personal law.
As I understand it, his central arguments are as follows: (1) Since the Supreme Court has already invalidated triple talaq, its criminalisation becomes redundant; (2) The Act unfairly targets Muslim men by criminalising conduct that is not an offense for men of other religions, thereby being violative of Article 14; (3) The Act reinforces harmful stereotypes about Muslim men, warranting an intersectional approach to discrimination analysis; (4) While community-based reform is a legitimate approach, the Act unjustifiably singles out Muslim men without a well-founded rationale; and (5) The invocation of Article 15(3) as a justification for the Act might be problematic, as the provision has historically been understood as enabling affirmative action or protective measures for women, rather than punitive measures against men.
In this essay, I take a position contrary to Keiran’s and engage with each of his claims. Below, I offer my response.
1. On the Question of Redundancy
Keiran’s first major argument builds on J.L. Austin’s concept of “performatives.” He suggests that the Supreme Court, in Shayara Bano, effectively rendered triple talaq non-performative. This in simpler terms, is to say that since the practice has been struck down, the pronouncement itself becomes “impossible” – meaning it no longer functions as a performative that actually does divorce. As a result, the marital obligations of the husband and wife remain intact (given the impossibility of a valid divorce). And hence, reducing the situation to a mere desertion – an action that, if prohibited by Parliament, may not hold up well constitutionally.
In response, I use the very same concept of performatives to argue the opposite. Yes, on paper, no divorce has taken place. However, the reality for a woman, following their husband’s utterance of “talaq” thrice, is unmistakably that of a divorced person (much like Keiran’s own illustration of a man sentenced to death, whose reality shifts the moment his sentence is pronounced). Section 2(c) of the Act, to this end, is particularly enlightening. It defines talaq as forms “having the effect of instantaneous and irrevocable divorce,” signalling that the law’s concern lies not with the technical validity of the act, but with the lived consequences it sets in motion. The phrase “having the effect of,” thus, becomes crucial here. For it quite ostensibly intends on addressing the social fallout of triple talaq, and not just its legal status. Hence, the Parliament, while legislating, was merely responding to documented cases where men continued pronouncing triple talaq leaving women in a position where they were socially branded as divorced, while without access to formal divorce proceedings.
This is where Chapter III of the Act becomes all the more crucial. As it provides for maintenance and custody rights – measures that do not “entrench” what the Act seeks to “disavow”, but instead, only offer necessary remedies for women caught in this implementation gap. Mind you, these are not divorce benefits (which would indeed be contradictory) but mere protective measures for women subjected to a practice that, while legally void, continues to have significant consequences in the face of abandonment, stigma, economic vulnerability, and so on. To this end, I submit that an alternative reading of the Act – framing it as merely targeting “desertion” (and therefore directing women towards civil remedies) misunderstands the very specific context and the unique harms the legislation seeks to address. Sure, the Act may not be theoretically elegant. But it responds to an ugly reality, one that invalidation alone has failed to remedy.
2. Equality and the Limits of Formalism
Keiran’s second argument critiques the Act for violating Article 14’s mandate of formal equality. He argues that triple talaq is not an act sui generis; rather, it either amounts to divorce or desertion. Therefore, given that the Supreme Court has invalidated triple talaq as a mode of divorce, what remains is mere desertion. An act which, for non-Muslim men, carries only civil consequences. However, under Section 4 of the Act, Muslim men face criminal punishment of up to three years for the same conduct. This differential treatment, he contends, lacks an intelligible justification and creates an artificial dichotomy based solely on religious identity. As such, the Act ought to be struck down for violating the right to equality.
First, the Act’s classification does not rest on an artificial distinction but on the specific vulnerability of Muslim women within their personal law framework. A Hindu or Christian woman deserted by her husband may still invoke legally recognised divorce proceedings. By contrast, however, a Muslim woman subjected to triple talaq faces a distinct disadvantage (i.e., the immediate assertion of a non-existent dissolution). Without the Act, her recourse would be limited to seeking maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (previously Section 125 of the CrPC), or initiating divorce proceedings under Section 2(iv) of the Dissolution of Muslim Marriages Act, 1939 (as applied in Veeran Sayvu Ravuthar v. Beevathumma). Yet neither remedy confronts the specific social stigma triggered when a husband pronounces triple talaq (a mode of divorce that, though void, continues to carry social weight).
The Act, in turn, is designed precisely to close this implementation gap. For even after judicial invalidation, triple talaq operates as an extra-legal social decree – one that produces a qualitatively different harm than ordinary desertion. To treat both forms of abandonment as legally or socially identical is, therefore, to ignore the structural disparities in how different personal laws operate.
Second, the argument that criminalisation must track formal parity in civil remedies presupposes a symmetry that perhaps does not exist. Criminal law frequently intervenes in asymmetrical power dynamics. Take for instance, laws against dowry harassment, which criminalise demands for money or property within a marital relationship, even though similar financial disputes in other contexts might remain purely civil matters. The fact that desertion in some cases warrants only civil remedies does not foreclose criminalisation where the act carries a specific and foreseeable harm. Similarly, the Act in targeting triple talaq, acknowledges that certain forms of abandonment function as exercises of arbitrary dominion rather than mere withdrawal from marriage.
In sum, the claim that the Act violates Article 14 by singling out Muslim men presumes an equivalence between desertion simpliciter and triple talaq – an equivalence that does not hold when viewed through a substantive rather than a formalist lens. As desertion, in most cases, leaves women with legal recourse to dissolution of marriage and associated protections. Triple talaq, by contrast, leaves Muslim women with no such recourse. Therefore, if equality is to be measured not by superficial uniformity but by its capacity to remedy structural injustice, then the Act stands on much firmer constitutional ground than Keiran suggests.
3. Overextending Intersectional Discrimination
Keiran, in his third major argument, highlights the unique intersectional discrimination faced by Muslim men under the Act. He suggests that they are penalised specifically due to both their religion and gender. Drawing a parallel to the case of Johnny Kimble, a Black man in the United States who faced distinct racial and gendered stereotypes, he argues that Muslim men in India are similarly subjected to unfair criminalisation and are stereotyped as inherently misogynistic. This, he contends, reinforces broader societal biases while erasing the structural patriarchy that affects all women. Therefore, he calls on the Courts to use this opportunity to develop an intersectional discrimination theory and firmly anchor it in the law.
While Keiran quite rightly highlights the troubling reality of Muslim men being stereotyped. His argument, though important, does not necessarily lead me to agree with his conclusions. The mere fact that a community faces systemic discrimination does not mean that every law affecting it is an instance of the same. My disagreement with his argument unfolds along two fundamental lines.
For one, intersectionality (as was originally theorised by Crenshaw), is a tool to capture forms of discrimination that fall through the cracks of a single-axis analysis. It is not a blunt equaliser that can be invoked whenever a law applies to a particular subset of individuals. Even Crenshaw’s paradigmatic cases of intersectional discrimination – that of Black women being excluded from both gender-based and race-based discrimination claims concern groups facing compounded structural vulnerability. But criminal law does not “discriminate” against perpetrators in this way at all. It only singles them out based on their specific ability to cause harm. To say that Muslim men are uniquely affected by this law is akin to saying that domestic violence laws “discriminate” against men. The relevant question is not whether a law affects a particular group more, but whether it does so because of an unfair or irrelevant classification.
Beyond this, the stereotype Keiran points to, i.e., Muslim men are particularly misogynistic might exist in public discourse, but the law does not create, endorse, or act upon it. Ostensibly, the Act does not punish Muslim men for being Muslim men. It only punishes a specific practice that affects Muslim women’s rights. If a Hindu or Christian personal law sanctioned unilateral, extrajudicial divorce, its criminalisation would be equally justified.
4. Remodelling Personal Law, Reasonably
Keiran’s fourth contention identifies Narasu Appa Mali as the central juridical obstacle to an equality challenge. In Narasu, Chagla CJ. upheld the state’s authority to introduce community-specific reform “by stages” – but only if the classification rested on a reasonable foundation, measured by three factors: (1) theological differences, (2) educational disparities, and (3) the community’s receptivity to reform. By this standard, Keiran argues, the 2019 Act falls short. It isolates Muslim men for criminalisation without any justification along these lines, making its distinction arbitrary rather than principled. Furthermore, unlike Narasu, which concerned personal law reform, the Act ventures into the private sphere without any broader framework for community engagement.
Two key claims now require closer scrutiny: (1) that the Act operates strictly within the “private sphere” and therefore does not alter personal law, and (2) that the Act lacks a reasonable basis, whereas Narasu was justified in its approach.
To begin with, the assertion that the 2019 Act remains confined to the “private sphere” rests on a false divide. It artificially separates the regulation of individual conduct from transforming personal laws. But can the two be so neatly divided? The Act does more than just criminalise an act of personal abandonment. It actively reshapes the legal and social standing of Muslim women within their own community. Hence, by criminalising triple talaq, it alters the normative structure of Muslim personal law, reinforcing Shayara Bano’s rejection of the practice and ensuring its gradual disappearance from social life. To suggest that the law operates purely within the private sphere is to ignore a fundamental truth: personal law has never existed in a vacuum. It derives authority not just from religious sanction, but also from legal enforcement and communal legitimacy. And so, when the state intervenes to disrupt that interplay, it is not merely regulating what happens in the “private sphere”. It is shifting the foundations of personal law itself.
Now, turning to the deeper claim: that the Act lacks a reasonable basis, whereas Narasu was a justified exercise of legal reasoning. This argument stands on shaky ground. It assumes that Narasu’s reasoning, rooted in its classification of personal law as beyond constitutional scrutiny, was ever analytically sound to begin with. While Narasu admittedly remains binding law, its reasoning feels increasingly out of place in the context of modern constitutional standards of review. Decisions such as Sabarimala and Shayara Bano have cast serious doubt on the notion that personal law is immune from constitutional scrutiny, rendering Narasu’s foundational assumptions suspect. Moreover, even on its own terms, Chagla CJ’s reasoning was based on the premise that communities exist along a developmental spectrum, with legal reform contingent on their theological, educational, and social readiness. This framework is anything but neutral. It finds itself steeped in a logic that constructs a hierarchy of progress, where legal intervention is justified based on an imagined trajectory of communal advancement. This is neither theoretically defensible nor constitutionally coherent. A standard of reasonableness that ties legal reform to an external assessment of a community’s supposed “preparedness” is inherently exclusionary, insulating certain personal laws from constitutional scrutiny while subjecting others to state intervention on an ad hoc basis.
The 2019 Act, by contrast, is rooted not in speculative assessments of a community’s capacity for reform, but in the empirical reality of harm. It responds to a vacuum that constitutional adjudication alone failed to fill. Unlike Narasu, it does not construct a hierarchy of deserving and undeserving communities. Instead, it recognises that a specific form of gendered vulnerability remains unaddressed and ensures that constitutional guarantees are translated into lived realities. If reasonableness is to be measured by necessity and constitutional fidelity rather than colonial paternalism, then perhaps the more important question is not whether the 2019 Act is justified, but why Narasu has gone so long without the critical re-examination it so clearly merits.
5. The Possible 15(3) Defence
Keiran finally turns to Article 15(3), arguing that the Act finds refuge in its protection as a “special provision” for Muslim women. He notes that courts have treated Article 15(3) as an exception to Articles 14 and 15(1). However, he questions whether a penal law fits within its scope and whether it must still align with the broader equality code. While courts have been cautious in allowing such an expansive reading, the lack of a clear framework leaves ambiguity. He further argues that the Act runs afoul of the anti-stereotyping principle set out in Anuj Garg v. Hotel Association of India, as it reinforces existing prejudiced narratives about Muslim men. Ultimately, he warns that if Article 15(3) shields laws that entrench rather than dismantle discrimination, it risks undermining substantive equality itself.
First, Keiran acknowledges that affirmative action is not limited to reservations but extends to laws that positively discriminate in favour of women. Yet, he hesitates to extend this logic to criminal law, as though the imposition of criminal penalties somehow transcends the domain of “special provisions.” But why should that be the case? The very purpose of criminalisation in this context is not merely punitive but protective. It seeks to deter a practice that has had documented, severe consequences for Muslim women. We must understand that the penal consequence attached to triple talaq is not incidental to its protective purpose, but integral to ensuring compliance. Protection without enforcement is mere lip service.
Keiran next argues that the Court has yet to definitively establish whether Article 15(3) operates as an exception to, or merely a clarification of, Articles 14 and 15(1). This is an interesting doctrinal concern. But if Article 15(3) is an exception, then the state’s ability to legislate for the protection of women (including through criminal statutes) remains uncontroversial. If it is merely a clarification, then we must ask: clarification of what? The only coherent answer is that it affirms the principle that laws benefiting women need not be subjected to a rigid formal equality analysis. In either case, the conclusion remains the same – Article 15(3) provides a constitutional justification for differential treatment when that treatment is designed to redress a specific harm suffered by women. The 2019 Act, in criminalising triple talaq, is doing precisely that.
Keiran finally claims that the Act, by singling out Muslim men, entrenches harmful stereotypes. This concern has already been addressed in the discussion on intersectional discrimination, and I do not intend to revisit it at length. However, to reiterate briefly, I argue that the legislative focus of the 2019 Act is on the tangible consequences of triple talaq, and not on broad character judgements about those who have engaged in it.
Interestingly, this is where Keiran invokes Anuj Garg, citing the anti-stereotyping principle. He argues that, much like the law challenged in that case, the Act suffers from “incurable fixations of stereotype morality and conceptions of sexual role.” However, I question whether this analogy holds. In Anuj Garg, the Court struck down a law that barred women from working in liquor stores based on outdated and paternalistic assumptions about their vulnerability. That law presumed women’s inability to make choices for themselves. Here, however, the state is not “protecting” women from their own decisions, it is merely responding to an externally imposed harm – one that has left women in a state of legal and social precarity. To this final end, the anti-stereotyping principle, I submit, applies where laws entrench gendered assumptions about ability, morality, or role. It does not extend to laws that redress documented and measurable gendered harm. Conflating the two overlooks the lived experiences of Muslim women who continue to be abandoned through a practice that the Court has already declared unconstitutional.
In Closing
Far from being redundant, the Act confronts the uncomfortable social reality that triple talaq continues to produce tangible harms despite its nullification (1). The Act’s differential treatment of Muslim men is not arbitrary discrimination but a tailored response to the specific vulnerabilities faced by Muslim women within their personal law framework (2). Claims of intersectional discrimination misapply the concept, prioritising theoretical consistency over lived experience (3). Unlike the problematic reasoning in Narasu, which rested on colonial assumptions of developmental hierarchies, the Act responds to empirical realities rather than paternalistic assessments of “community readiness” (4). Finally, Article 15(3) legitimately shields the legislation as a necessary protective measure, with criminal penalties serving not as punishment but as the muscle behind constitutional promises (5).
*Rajyavardhan Singh is a second-year undergraduate student at Rajiv Gandhi National University of Law, Punjab.