Muslim Women (Protection of Rights on Marriage) Bill, 2017: An Insight

Muslim Women (Protection of Rights on Marriage) Bill, 2017: An Insight

This is a guest blog by Natasha Sharma.

Triple Talaq, also known as talaq-e-biddat, instant divorce, is a form of Islamic divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence. It allows any Muslim man to legally divorce his wife by stating the word talaq (the Arabic word for “divorce”) three times in oral, written, or more recently, electronic form.  The man does not have to state any reason for the same and the presence of his wife is not a pre-requisite.

Triple talaq is a 1,400 year-old practice among Sunni Muslims It is “manifestly arbitrary” and allows a man to “break down a marriage whimsically and capriciously”.[1] Triple Talaq as a practice is not mentioned in the Quran or Sharia law. The practice of instant divorce is already banned in 22 Muslim-majority countries, including Pakistan and Bangladesh, although it is technically legal in Sunni Islamic jurisprudence. Triple talaq, in Islamic law, is based upon the belief that the husband has the right to reject or dismiss his wife with good grounds. If the wife wants to end her marriage and her husband does not agree to give a talaq, she has to comply with proceedings under the Dissolution of the Muslim Marriages Act.

The practice faced opposition from Muslim women, some of whom filed a Public Interest Litigation (PIL) in the Supreme Court against the practice, terming it “regressive”. The petitioners asked for section 2 of the Muslim Personal Law (Shariat) Application Act, 1937[2], to be scrapped, describing it as being against Article 14 of the Constitution (equality before law).

The practice of triple talaq has been a subject of controversy in the past few months. The questions that have arisen are basically issues of gender equality, human rights and secularism. The controversy, additionally, is about the basic concept of applicability of the Uniform Civil Code in India. On 22nd August 2017, the Indian Supreme Court held the instant Triple Talaq unconstitutional. The bench that heard the controversial Triple talaq case in 2017 was made up of multifaith members. The five judges from five different communities are Chief Justice JS Khehar, a Sikh, Justices Kurian Joseph a Christian, RF Nariman a Parsi, UU Lalit a Hindu and Abdul Nazeer a Muslim.

In a 397-page ruling, though two judges upheld validity of Instant triple talaq (talaq-e-biddat), the three other judges held that it was unconstitutional, thus barring the practice by 3–2 majority. One judge argued that instant triple talaq violated Islamic law. The bench asked the central government to promulgate legislation within six months to govern marriage and divorce in the Muslim community. The court said that until the government formulates a law regarding instant triple talaq, there would be an injunction against husbands pronouncing Instant triple talaq on their wives.

The BJP Government formulated the bill after 100 cases of instant triple talaq in the country since the Supreme Court judgment in August 2017. On 28 December 2017, Lok Sabha passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017. The bill make instant triple talaq (talaq-e-biddat) in any form — spoken, in writing or by electronic means such as email, SMS and WhatsApp illegal and void, with up to three years in jail for the husband. MPs from RJD, AIMIM, BJD, AIADMK and AIML opposed the bill, calling it arbitrary in nature and a faulty proposal, while Congress supported the Bill tabled in Lok Sabha by law minister Ravi Shankar Prasad. 19 amendments were moved in Lok Sabha but all were rejected.

There was more political positioning than any appraisal in the winter session of the parliament to make the Triple Talaq a criminal Offence. With the bill being pending in the Rajya Sabha, the opposition has stuck to refer the bill to a selection committee to help bring about a consensus on how to tackle the problem of solving the issue of Talaq-e-biddat. The opposition has raised 3 concerns:

  • Whether a civil wrong, mainly a breach of marriage contract in an arbitrary manner, ought to be treated as a crime?
  • Whether it is not a contradiction of sorts for the law to jail a husband for pronouncing instant talaq and also mandate him to give subsistence allowance to the wife?
  • Whether making it a cognizable and non bailable offence would not lead to it being misused against Muslim men?

The Congress now has a new concern, i.e. the government should take care of the sustenance of the woman concerned if the husband is jailed for uttering triple talaq. They should however understand that a deterrent measure needs to be taken against this age long practice which gives a man an unquestionable right to abandon his wife and child at his whim. The parties should now look into the welfare of the women at large instead of politicizing the matter and the bill should be passed without any delay.

 

[1]  “SC strikes down 1400-year-old Islamic practice of Triple talaq”. Outlook. 22 August 2017.

[2] Section 2:Application of Personal law to Muslims.—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

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