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The long due The Muslim Woman (Protection of Rights on Marriage) Bill, 2019 has finally been passed by the Parliament. It replaces the ordinance passed by the government with regard to criminalizing triple talaaq.
Earlier, the bill was introduced in the 16th Lok Sabha, but could not see the light of day as the bill got lapsed owing to it’s pendency in Rajya Sabha. This legislation replaces the Muslim Women (Protection on Divorce) Act, 1986. This certainly is a major victory for securing gender justice for Muslim women vis a vis Muslim men, but the implications are many.
What exactly is ‘talaaq-e-biddat’?
Talaaq-e-biddat, popularly known as triple talaaq, is one form of divorce which finds mention in the Shariat Act of 1937. It is a practice whereby a husband can divorce his wife immediately and irrevocably on pronouncement of the word ‘talaaq’ thrice in one sitting.
The pronouncement can be either written or oral, and in recent times, electronic means such as SMS, e-mail and even whatsapp can be used to divorce one’s wife. The corollary is that such a draconian device (under Shariat) is of unilateral nature and is available only to a Muslim man against his wife. In India, matters like marriage, divorce, succession and adoption are governed by respective personal laws of the religion. And therefore, are left untouched considering them to be matters of sectoral significance.
However, taking a reformative stance, the apex court in Shayara Bano v. Union of India (2017) invalidated the practice of talaaq-e-biddat and questioned various other aspects of Islamic law such as polygamy. The court noted that this practice is condemned in many Muslim majority nations such as Saudi Arabia and Pakistan. Therefore, the government of India should take reformative measures.
What is the background of this new law?
The name of the legislation itself suggests that it carries with it enormous significance for women of a particular community. However, one needs to understand that this legislation is an outcome of a long standing struggle for achieving Muslim women’s rights. For long, it has been contended by Muslim reactionaries that such matters are insulated from state interference and thereby lie under the garb of personal laws.
This contentious issue was highlighted way back in 1960’s when the issue came up with Supreme Court regarding right to alimony to Muslim women. In the case of Ahmed Khan v. Shah Bano Begum (1985), Supreme Court upheld the right to alimony to Muslim Women. It was a major milestone in the battle for protection of Muslim Women Rights in marriage.
However, this judgement churned political events which led to its overturning by enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986. This enactment specifically restricted the maintenance period upto iddat period as prescribed under Shariat Laws. Thereafter, this legislation was challenged by Daniel Latifi in apex court whereby for the first time women’s right to be treated with equality and dignity was recognized.
What are the salient features of the new law?
- The act declares talaaq-e-biddat in all its forms as illegal, i.e., not enforceable by law.
- Offence and penalty: The Bill makes declaration of triple talaq a cognizable offence, attracting up to three years imprisonment with fine. The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom the talaq has been declared) or (ii) any person related to her by blood or marriage.
- The offence is bailable only upon requisite hearing of the woman (against whom the talaaq has been declared).
- The offence is also compoundable by the magistrate upon request of the woman.
- Subsistence allowance to woman against whom the talaaq has been declared.
- Such Woman is also entitled to seek custody of her minor children.
What are the drawbacks of this law?
To begin with, the act vehemently criminalizes an act of civil nature, that too, with a severe punishment not conforming with the proportionality principle of criminal law. Further, the act fails to address one crucial aspect, that is, if pronouncement of triple talaq is per se void, then no question of alimony should arise as the nullity should itself imply that the marriage is subsisting. However, by compelling the husband to pay alimony to his wife and also by including the provisions of custody, the law stands perplexed as to the status of marriage post the pronouncement of condemned triple talaq.
Secondly, making the offence cognizable and thereby removing judicial oversight is somewhat discriminatory in nature and against the doctrine of proportionality in criminal laws. Thirdly, the legislation provides no additional safeguards to woman (against whom the talaq has been pronounced) and presumes that putting the erring husband behind bars and asking him to pay alimony shall eradicate the vulnerability of the woman and her minor children.
There can be no doubt about the fact that the practice of triple talaaq is a reprehensible act both in theology and law. Supreme Court’s 2017 judgement together with the current enactment of Muslim Women (Protection of Rights on Marriage) Act, 2019 concretizes the fact that in matters of gender equality and regularization of secular aspects of a religion, the state can intervene and make reformative laws. This legislation therefore is a right step in the right direction.
–This article is brought to you in collaboration with Bhoomika Prakash from Rajiv Gandhi National University of Law, Punjab.