UPSC MAINS 2019: The Muslim Women (Protection of Rights on Marriage) Bill, 2018

Protection of Rights on Marriage Bill 2018

Topic: The Muslim Women (Protection of Rights on Marriage) Bill, 2018

Topic in Syllabus: GS Paper 2: Indian Polity

 

Protection of Rights on Marriage Bill 2018

Context:

In a positive step towards empowerment of Muslim women, Lok Sabha has passed a bill that seeks to criminalise “triple talaq”, a style of instant divorce used by some in the Muslim community. Triple Talaq is still practiced by some despite the country’s top court suspending the practice in August.

 

More about on news:

  • It is an important legislation which seeks to criminalise the practice of instant triple talaq, which enables Muslim men to divorce their wives instantly by saying ‘talaq’ three times in a row. There are many cases in which a talaq was given on phone or even via SMS, much to the agony of the Muslim women.
  • The bill proposes to make the triple talaq practice a punishable offence and describes it against “constitutional morality” and “gender equity”. Anyone who pronounces instant divorce “shall be punished with imprisonment for a term which may extend to three years and a fine”, the bill proposes.
  • The Bill, prepared by an inter-ministerial group headed by Home Minister Rajnath Singh, makes instant triple talaq or talaq-e-biddat in any form — spoken, in writing or by electronic means such as email, SMS and WhatSapp “illegal and void”. It was cleared by the Union Cabinet earlier this month.
  • As per the provisions of the Bill, the husband could also be fined and the quantum of fine would be decided by the magistrate hearing the case.
  • The Bill is being introduced as the practice still continued despite the Supreme Court striking down ‘talaq-e- iddat’.

 

The Muslim Women (Protection of Rights on Marriage) Bill, 2018

  • The Muslim Women (Protection of Rights on Marriage) Bill, 2018 was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on December 17, 2018.
  • It replaces an Ordinance promulgated on September 19, 2018. Note that a Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced and passed in Lok Sabha on December 28, 2017.  The 2017 Bill is listed for withdrawal.
  • The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.
  • Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
  • Offence and penalty: The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person without warrant.)  The offence will be cognizable only if information relating to the offence is given by:
  • the married woman (against whom talaq has been declared), or
  • any person related to her by blood or marriage.
  • The Bill provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
  • The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared). Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute. The terms and conditions of the compounding of the offence will be determined by the Magistrate. 
  • Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the allowance will be determined by the Magistrate.
  • Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.

 

Triple talaq

  • Triple Talaq, also known as talaq-e-biddat, instant divorce and talaq-e-mughallazah (irrevocable 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.
  • Under this law, wives cannot divorce husbands by the means of triple talaq. Women have to move a court for divorcing her husband under the Muslim Personal Law (Shariat) Application Act 1937. (This Act was passed to make provisions for the application of Shariat or Islamic personal law to Muslims in India.)

 

Facts:

  • According to a study, 92% of Muslim women in India want oral triple talaq to go.
  • National Commission of Women (NCW) : Triple talaq was a “highly misused” custom and Government should scrap it to protect the rights of Muslim women
  • The ‘triple talaq’ has been abolished in 21 Islamic theocratic countries including Pakistan.
  • The largest percentage of divorces takes place among Muslim women. It was 1.59 among Muslim men, among Muslim women, it was more than three and a half times higher – 5.63
  • SC has declared practice of triple talaq unconstitutional, illegal and void and not protected by Article 25 (Freedom of Religion).

 

Some arguments placed by those who oppose the ban are as following:

  • As per AIMPLB Triple talaq is an option for those who don t want to wait for three months. It is true that there are long delays in courts in divorce cases
  • AIMPLB has also claimed that it had received forms from Muslim women across the country, supporting triple talaq
  • AIMPLB had also prepared a Nikahnama under which women can set conditions for the husband that could safeguard their rights, at the time of the Nikah.
  • As per the census data of 2011, the divorce rate among Muslims was 0.56 percent less than the Hindu community, which stood at 0.76 percent. The divorce rate among Muslims is very low compared to other communities
  • Under Islamic law, the pronouncement of talaq is spread over three months instead of instant pronouncements in succession. During these three months, parties are given opportunity to reconcile
  • As a matter of fact, no survey has been yet conducted by government agencies to measure the impact of triple talaq on the Muslim community
  • Muslim legal experts have also questioned the premise of deeming the triple talaq unconstitutional while allowing the Jain traditions of Santhara i.e. practice of a ritualistic fast unto death
  • Critics of government s move also claim that divorce is not the main issue concerning the Muslim community, majority of whom are close to the bottom of economic and educational indicators in India.

 

Arguments against triple talaq:

  • It goes against the rights of equality and women’s empowerment. It propagates the dominance of men over women.
  • According to a study, 92% of Muslim women in India wanted the triple talaq to be banned.
  • It gave men the right to arbitrarily divorce their wives without any valid reason.
  • New-age technology has given birth to new modes of triple talaq such as through skype, text messages and email.
  • Many Islamic countries have outlawed this practice including Bangladesh, Pakistan and Indonesia. There is no reason for a democratic and secular India to continue this lopsided practice.
  • It goes against the constitutional principles of gender equality, secularism, right to life of dignity, etc. It goes against Article 14 (Right to Equality) and Article 15(1) which states that there shall be no discrimination against any citizen on the basis of gender, race, etc. and this kind of talaq is biased against the interests of women.
  • The constitution of the country says that it shall strive to bring a uniform civil code for the entire country. Doing away with triple talaq will definitely be a step closer to the constitution-makers’ dream of having a uniform civil code for all citizens.
  • However, the National Commission of Women says that this matter cannot be linked to uniform civil code. Nevertheless, it should be banned in order to protect the interests of Muslim women.
  • The Supreme Court has also declared that this practice is unconstitutional and not protected by Article 25 which regards the freedom of religion. Also in December 2016, the Allahabad High Court had said that no personal law board was above the constitution.
  • Experts also opine that only the essential or integral features and aspects of a religion are protected by the Constitution. Triple talaq was not an integral feature of Islam.

 

Supreme Court judgments:

  • In the Shah Bano case in 1985, the SC granted Shah Bano, a 62-year old woman the right to alimony from her husband.
  • But in 1986, the government passed the Muslim Women (Protection of Rights on Divorce) Act which diluted the positive impact created by the Shah Bano case.
  • In 2001, in the Danial Latifi & Anr versus Union of India case, the SC upheld the validity of the Shah Bano judgement.
  • In August 2017, a five-judge bench of the SC declared the triple talaq as unconstitutional in a majority 3:2 judgement. This was the culmination of a petition filed by Shayara Bano, whose husband of 15 years had divorced her through a letter where he pronounced talaq three times, to declare the divorce as void.

 

Constitutional Provisions in favour of ban on Triple Talaq

Uniform Civil Code: Part (IV) Article (36-51):

  • Directive Principles of State Policy mentions the guidelines for governing the nation. Though these are non-justiciable, hence cannot be enforceable by any court.
  • However, the constitution also says it is the duty of the state to apply these principles in making laws. Uniform civil code (Article 44) the guidelines and constitutional mandate to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen. Article 44 of the Directive Principles sets its implementation as duty of the State.
  • The constitution of India guarantees all rights promised in the Fundamental Rights and these cannot be denied to any citizen of India merely because of the gender. It is also noted that that the all rights given to men are applicable to women too.
  • Right to Equality (Articles 14 and 15 of Constitution) – It means the equality of opportunity, equality before law, equal protection in the laws, not discriminating against any person on grounds of sex, religion, caste and place of birth and no discrimination in the matters of public employment on the grounds of sex only as provided under Article 16 of the Constitution.

 

Analysis of the bill:

  • Contrary to the intent of the legislation, it would weaken the position of Muslim women.
  • The question over the need for law when the five-judge Supreme Court Bench had outlawed the practice remains unanswered.
  • The Bill stipulates a three-year prison sentence and a fine. It is unclear why a civil contract should carry a criminal penalty.
  • The original Bill stated that the offence would be non-bailable, which has been reduced to a bailable offence in the latest version.
  • The woman is entitled to receive from her husband a subsistence allowance for her and her dependent children.
  • Expecting a man, who is incarcerated for 3 years and with less chance to earn a livelihood, to pay allowance is illogical.

 

Sample Question:

Critically evaluate the recently passed The Muslim Women (Protection of Rights on Marriage) Bill? Does this bill weaken the position of Muslim women, comment?