CRITICAL ANALYSIS OF THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019

Author: Rokkam Gayatri Kumari*

Editor: Neelakshi Bhaskar

INTRODUCTION

The Muslim Women (Protection of Rights on Marriage) Act, 2019 was the outcome of the Muslim Women (Protection of Rights on Marriage) Bill, 2019, popularly known as the Triple Talaq Bill of 2019 that was the legal development from the landmark judicial pronouncement of the Shayara Bano v. Union of India ((2017) 9 SCC 1) delivered by the five-judge constitutional bench of the Hon’ble Apex Court of India which declared the observance of the Talaq- e- Biddat illegal.

HISTORICAL BACKGROUND

Concept of Marriage and Dissolution under the Shariya Law:

Under the Shariya Law, marriage is considered an important phase of every Muslim’s life. It is conceived that a Muslim’s life is complete only upon their marriage. Marriage under Islamic Law is a civil contract between a husband and his wife, which like any other contract can be broken i.e., they can take divorce. But the Shariya Law prescribes certain ways through which the spouses can end their marital relationship. They are:

· Divorce by mutual consent;

· Khulla;

· Talaq- e- Hasan;

· Talaq- e- Ahasan;

· Talaq- e- Biddat.

Talaq- e- Biddat:

'Biddat' is derived from the Arabic word “Bidda” which gives the meaning “innovate”. This type of divorce was not present since the initial phase. It was added later on. This method of Talaq is also called Triple Talaq or Talaq at one sitting because, in this form, the husband pronounces Talaq three times at one go, at one time. And with this pronouncement, the marriage gets dissolved. Also, in this type of divorce, the spouses are not given any period to reconcile or arbitrate or settle the matter. Here the husband can utter Talaq either through WhatsApp, mail, or notice as well.

Why is Triple Talaq a nasty kind of Divorce?

Talaq- e- Biddat is classified as a nasty form of Talaq as it does not give the ninety days fundamental measure for reconciliation between parties that is provided by the other types of Talaq as it is important for the couple to make a decision of their future set up of action concerning their matrimony. Also, within the alternative forms of marriage, nothing is decided at the heat of the moment, unlike Talaq- e- Biddat. Apart from India, there are many Muslim predominant nations that call Triple Talaq, a nasty form of divorce and have banned it.

Is Triple Talaq allowed by Islamic Holy Book- Quran?

The right law of Talaq as per the Sharia is that “Talaq” should be for a reasonable cause but cannot be given arbitrarily. It can be done only after an attempt of genuine reconciliation between the couple by the two arbitrators on both sides and should be compulsorily done. Only if their attempt of reconciliation fails, “Talaq” may then be enforced and it’s actually revocable but not final. This was the traditional form of Talaq which was later on politicized to form instant Triple Talaq as some scholars of the Islamic Law thought the traditional form was too lengthy and time-consuming. This was termed “Talaq- e- Biddat”.

JUDICIAL INTERFERENCE

The practice of Talaq- e- Biddat was challenged before the Hon’ble Apex Court by one Shayara Bano, an Islamic woman, in 2016 when her husband uttered Triple Talaq. The case is one of the judicial milestones in the history of India.

It was a writ petition that challenged the habit of a Muslim man divorcing his spouse by pronouncing numerous Talaq in a one Tuhr (time period between a woman’s two menstrual cycles), as this observance is a violation of the Articles 14, 15, 21 and 25 of the Constitution of India. The contention was that the utterance of Triple Talaq was not the essential tenet of the religious belief of the Muslims, and thus, cannot be saved under Article 25 of the Constitution of India. All India Muslim Personal Law Board, one of the respondents in the case contended that the Hon’ble Apex Court does not have the jurisdiction to adjudicate over an affair of a Muslim Personal Law, since it is a Quranic law, and not a law enacted by the Parliament. But, the Hon’ble Apex Court, by the majority has rejected the aforementioned argument of the All India Muslim Personal Law Board stating that the impugned practice is affecting the fundamental rights of the Indian citizens, and thus the Apex Court has complete jurisdiction over it. And the five-judge constitutional bench through a split decision of 3:2 struck down Talaq- e- Biddat with the justification that it is violating Articles 14, 15, 21, and 25 of the Constitution of India. Also, it directed the Government to make appropriate laws in this context.

JOURNEY OF THE TRIPLE TALAQ BILL

The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was passed by both the Houses of the Parliament of India, and it received the Presidential assent on 31st of July 2019, thus becoming the legislation to curb this evil practice.

Main Elements of the Act:

· The act has banned the utterance of Talaq- e- Biddat and declared it a punishable offense;

· The Muslim Women (Protection of Rights on Marriage) Act, 2019, is a legislation that aims at the protection of the rights of married Muslim wives, and also to prohibit divorce by the utterance of Talaq by their husbands;

· It became operational retrospectively from 19th of September 2018 and received President’s assent on 31st of July 2019;

· The Legislation has eight sections categorized under three chapters. The first chapter under two sections states about the applicability of the Act and defines certain important terms such as Electronic form, Talaq, etc;

· For this legislation, Magistrate means the Judicial Magistrate First class and, the territorial jurisdiction lies at a place where the married woman against whom Talaq is uttered resides;

· The second chapter titled “Declaration of Talaq to be void and illegal” has two sections. Section 3, declares the pronunciation of Talaq by a Muslim husband against his wife in any way i.e., either by the words spoken or in written form or in electronic form not only void but also illegal;

· And Section 4 of the act prescribes punishment of imprisonment extending up to three years with fine;

· The Act makes the utterance of Triple Talaq under section 7(a), a cognizable offense;

· The Act makes this a bailable offense wherein bail can be granted to the accused husband by the Magistrate, but only if the Magistrate after hearing the wife of the accused against whom he pronounced Talaq, feels there are sufficient grounds to grant him bail;

· The Act also states that the crime is a compoundable offense which means it can be settled outside the Court. But such direction can be given by the Magistrate only upon the request of the wife against whom Talaq is uttered and the said procedure should move on as directed by the Magistrate;

· It also states that the quantity of allowance and the manner of custody of the minor children will be decided by the Magistrate.

CRITICAL ANALYSIS OF THE ACT

Critics opined that the law has many drawbacks. They questioned the very existence of the Act. They attacked this Bill on various grounds, which are as follows:

1. Making the civil wrong a crime: The conjugal relationship is a civil matter. Divorce is a civil wrong and is criminalized under this Act. For a crime to be committed, the essential element is mens rea. But here, the husband utters triple talaq at the heat of the moment without any second thought;

2. Burden of proof: As a general principle of the criminal law, unless proven guilty, the accused is presumed to be innocent. Here also, the husband is at first presumed to be innocent, and it becomes strenuous for the prosecution to prove the guilt of the husband beyond a reasonable doubt in case the husband uttered the Triple Talaq in oral form because there is a less chance of having evidence against him in these circumstances;

3. Requirement for the Law?: The other question is about whether there was any necessity for passing any legislation in this context. Instead of this, the public could be made conscious of the Hon’ble Apex Court’s ruling that the utterance of Triple Talaq is unconstitutional. The main issue is the absence of legal awareness. Unless people are apprised about the laws, and rulings of the Judiciary, nothing can be changed even if there are as many as a hundred pieces of legislation pertaining to one aspect. The argument in favor of passing the law for the creation of deterrence can be refuted with the dissenting opinion that the disobedience towards the Court’s ruling can give rise to the person being charged for Contempt of Court;

4. Conflict of interest: The quantum of punishment for pronouncing talaq- e- biddat is three years which is quite a disproportionate amount of punishment for divorcing a lawfully wedded wife. Apart from that, the conflict between the provisions of the legislation arises when one provision says the wife concerned can ask for subsistence allowance and the other provision says the husband should be put behind bars for a period extending up to three years because if the husband is a poor man and has gone to the jail, there is least possibility that he can arrange for the said allowance.

CONCLUSION

Even after facing severe criticism, with the main aim of Gender Justice and Equality, the Government has passed the Triple Talaq Bill stating that Equality is an essential character of the Basic structure doctrine and non-compliance with it will give rise to disrespect to the civilized jurisprudence of the sovereign state.

REFERENCES

· Dr. Sidharth Arora, Modi Government Bans Triple Talaq- Bill Passed UPSC CSE/IAS 2020, Youtube (10th April, 2021; 10:00am) https://www.youtube.com/watch?v=qzDczcij6ZU;

· BYJU’S IAS, Explained: Triple Talaq Bill, Youtube (12th April, 2021; 05:00pm) https://www.youtube.com/watch?v=oAvRAyteVlg.

*The Author is a 4th-year law student at Army Institute of Law, Mohali

Disclaimer: The opinions and views in this article are personal and independent opinions of the author. VAIDHA doesn't hold any liability arising out of this article.