The Supreme Court of India’s 2017 judgment in the case of ‘Shayara Bano and Others v. the State’ rightly garnered a great deal of attention, domestically as well as internationally. Bano was married for 15 years. In 2016, her husband divorced her through talaq-e-bidat, a practice of Muslim personal law in India that would allow a husband to unilaterally effect instant and irrevocable divorce by pronouncing the word “talaq” (repudiation) three times. Bano argued before the Supreme Court that “instantaneous triple talaq”, which had existed in India for years, was unconstitutional. And in a country of some 200 million Muslims, the court agreed with her. Of course, the issue of instantaneous triple talaq and the court’s decision drew a controversial response, including from within India’s Muslim community . The device of talaq is well-established in Muslim personal law as one means, among others, of divorce. But there are different forms of talaq. The form considered most in accordance with the tradition involves time – typically three months – from the pronouncement of talaq before it takes effect. This is sometimes called “talaq-e sunnah” (and also “talaq ahsan” or the good or best talaq). This pronouncement also needs to be made three times, typically at monthly intervals. The extra time is deliberate, providing an opportunity for reflection and consideration of the decision, and for revocation or reconciliation of the parties, if possible. In this light, the instantaneous triple talaq – where three pronouncements of repudiation are made at once – has always attracted some suspicion and juristic disquiet about how, in such circumstances, there can be occasion for reconsideration or reconciliation. The biggest gender pay gap in Asia: why are Indian women so undervalued? For instance, triple talaq is considered in a book by Salman Khushid, called Triple Talaq: Examining Faith . In one section with a telling title, “Triple Talaq: Bad in Theology, Good in Law”, Khushid highlights the tradition’s concern with instantaneous triple talaq. This is why instantaneous triple talaq is called “talaq-e bidat”. The term “bidat” suggests innovation but not with a positive connotation. Rather, bidat implies innovation that deviates from the tradition’s sources of normativity and authority. It is for the reasons above that triple talaq had already ceased to be recognised in Pakistan and Bangladesh, as well as other Muslim majority jurisdictions outside South Asia. Like India, Pakistan and Bangladesh also hold the Hanafi school of Muslim law, which is one of the four major schools in Sunni Islam, as the majority tradition. So these countries are all in the same general legal space with respect to Muslim personal law. But in Pakistan, to put it simply, a valid pronouncement of talaq must be conveyed via written notice, the notice must be filed with a state body and it must then be formally served to the wife. A verbal talaq without written notice is not recognised. Bollywood star quits acting because it ‘damaged’ her relationship with God Moreover, the dissolution of a marriage by talaq does not take effect until 90 days have passed. The requirements of written notice, service and 90 days time are similar in Bangladesh. Moreover, in both Pakistan and Bangladesh, on entering marriage, the parties may elect to delegate the right of talaq to the wife – what is known as talaq-i-tafweez. Considering the state of affairs in India’s South Asian neighbours, the Supreme Court of India’s 2017 decision might not be seen as very radical. One might even say India was catching up with Pakistan and Bangladesh. But the Indian parliament’s recent moves in the Muslim Women (Protection of Rights on Marriage) Ordinance of 2019 take matters further . The ordinance now says, “Any pronouncement of talaq by a Muslim husband on his wife … shall be void and illegal”, and “Any Muslim husband who pronounces talaq … upon his wife shall be punished with imprisonment for a term that may extend to three years, and shall also be liable to fine”. India criminalises ‘triple talaq’ Muslim instant divorce It applies to all forms of talaq and perhaps most importantly makes talaq a criminal offence. Like the judgment, the ordinance has evoked a range of reactions, including from within India’s Muslim population. Some see it as positive because it eliminates talaq, while others fear the government – led by the Hindu nationalist Bharatiya Janata Party – is interfering in matters that should stay within the purview of the Muslim community. Moreover, reports suggest there is a concern that the government out of ideological orientation is trying to do things in the context of Muslim personal law that they would not do in Hindu law. These discussions come against the backdrop of India not having a uniform personal law regime, a matter that has been debated for decades. Indian politics is complex and nuanced. There is the matter of a Hindu nationalist government and India’s Muslim population. There are different perspectives within India’s Muslim population, and debates around gender relations and equality. These latter debates of course are not just taking place among Indian Muslims, but are widespread in both Muslim majority and Muslim minority environments. Legally, the amendments to the ordinance raise a raft of questions. Would the government also criminalise similar practices in other communities? Are there practices among India’s Hindu majority that the present government would similarly sanction? Or are Muslim practices being singled out for partisan, political reasons? And given that the Supreme Court already found triple talaq to be unconstitutional and so legally invalid, why take the additional step of criminalisation? After all, criminalisation leads to imprisonment and stigmatises the individual, which may make it impossible for his dependent family to be protected or to obtain maintenance or other allowances. If the motivation is to protect the rights of Muslim women, and to tackle the issue of talaq, then isn’t the court’s decision, and non-criminal legislation, enough to achieve such a result? In this respect, the ordinance comes across as a legal overkill – and a suspicious overkill at that. Arif A. Jamal is an associate professor of law at the National University of Singapore Connect with us on Twitter and Facebook