The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on June 21, 2019. It replaces an Ordinance promulgated on February 21, 2019. The bill was passed by the Lok Sabha on 25th July 2019; thereupon it was transmitted to Rajya Sabha. It was passed by the Rajya Sabha on 30th July 2019. The Triple Talaq bill was passed by the Rajya Sabha on July 30 through ballot voting with 99 votes in favor and 84 against.
The Triple Talaq Bill or the Muslim Women (Protection of Rights on Marriage) Bill, 2019 received President Ram Nath Kovind’s assent on July 31, 2019. The bill has now become a law.
The new legislation which makes the practice of instant divorce through ‘triple talaq’ among Muslims a punishable offense with 3-year imprisonment has been challenged in the Supreme Court and the Delhi High Court. The petition in the apex court was moved by a Kerala-based Muslim organization, while the one in the Delhi High Court was filed by an advocate — both alleging that ‘The Muslim Women (Protection of Rights on Marriage) Act, 2019’ violates the fundamental rights of Muslim husbands.
‘Samastha Kerala Jamiathul Ulema’, a religious organization of Sunni Muslim scholars and clerics in Kerala, and the Delhi-based advocate Shahid Ali have claimed that the Act is violative of Articles 14, 15 and 21 of the Constitution and is liable to be struck down.
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-bidder or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce. Talaq-e-bidder 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.
In April 1978, a 62-year-old Muslim woman, Shah Bano, filed a petition in court demanding maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer in Indore, Madhya Pradesh. Khan had granted her irrevocable talaq later in November. The two were married in 1932 and had five children — three sons and two daughters. Shah Bano’s husband had asked her to move to a separate residence three years before, after a prolonged period of her living with Khan and his second wife.
Shah Bano went to court and filed a claim for maintenance for herself and her five children under Section 123 of the Code of Criminal Procedure, 1973. The section puts a legal obligation on a man to provide for his wife during the marriage and after divorce too if she isn’t able to fend for herself. However, Khan contested the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the iddat period after divorce.
Iddat is the waiting period a woman must observe after the death of her husband or divorce before she can marry another man. The length of the iddat period is circumstantial. The period is usually three months after either of the two instances. In case the woman is pregnant, the period carries on until childbirth.
Khan’s argument was supported by the All India Muslim Personal Law Board which contended that courts cannot take the liberty of interfering in those matters that are laid out under Muslim Personal Law, adding it would violate The Muslim Personal Law (Shariat) Application Act, 1937. The board said that according to the Act, the courts were to give decisions on matters of divorce, maintenance and other family issues based on Shariat.
After detailed arguments, the decision was passed by the Supreme Court of India in 1985. On the question of whether CrPC, 1973, which applies to all Indian citizens regardless of their religion, could apply in this case.
Then Chief Justice of India Y.V. Chandrachud upheld the decision of the High Court that gave orders for maintenance to Shah Bano under CrPC. For its part, the apex court increased the maintenance sum.
The case was considered a milestone as it was a step ahead of the general practice of deciding cases on the basis of interpretation of personal law and also dwelt on the need to implement the Uniform Civil Code. It also took note of different personal laws and the need to recognize and address the issue of gender equality and perseverance in matters of religious principles.
Justice Y.V. Chandrachud said in his decision: “Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria that determine the applicability of section 125. Such provisions, which are essential of a prophylactic nature, cut across the barriers of religion. The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion.”
The following events were unfavorable to a great extent with the then Rajiv Gandhi Congress government, elected in 1984, passing the Muslim Women (Protection on Divorce Act), 1986. This law overturned the verdict in the Shah Bano case and said the maintenance period can only be made liable for the iddat period. The new law said that if a woman wasn’t able to provide for herself, the magistrate had the power to direct the Wakf Board for providing the aggrieved woman means of sustenance and for her dependent children too.
Shah Bano’s lawyer Danial Latifi had challenged the Act’s Constitutional validity. The apex court, though upholding the validity of the new law, said the liability can’t be restricted to the period of iddat. One of the key points of relevance in the verdict that set it apart from previous cases was the recognition of women’s claim for treatment with equality and dignity, particularly in cases of marriage.
Significantly, Shah Bano later withdrew the maintenance claim she had filed.
The fight against triple talaq, though supported by a number of women’s rights activists and constant media attention, was led by the victims themselves.
Shayara Bano, a 35-year-old woman from Uttarakhand, emerged as the defining persona in the legal battle against the patriarchal custom that was judged unconstitutional by the Supreme Court recently.
Ms. Bano was the original petitioner in the case after she approached the court in 2016 demanding that the talaq-e-bidder pronounced by her husband be declared as void. She also contended that such a unilateral, abrupt and irrevocable form of divorce be declared unconstitutional, arguing that the practice of triple talaq violated the fundamental rights of Muslim women.
Her battle against triple talaq was spurred by her own experience. She was a victim of the custom. Married in April 2001 to the Allahabad-based property dealer Rizwan Ahmed, she endured domestic violence and physical torture at the hands of her husband and in-laws, who allegedly demanded additional dowry and a car from her parents. Her father, a low-earning government employee, had made special efforts to arrange her marriage beyond his capacity.
As per her claim, she was often beaten and kept hungry in a closed room for days. The final cut came in October 2015, when her husband sent her a divorce note by speed post. The letter contained a pronouncement of instant triple talaq. The custody of her two children, 11 and 13, was kept by the husband. When something “so wrong” happened, she thought that there must be a law to prevent this.
It was abolished after recommendations by a 7-member commission on marriage and family laws in 1956 and framed the legislation of marriage and divorce similar to Egypt, the husband must pronounce Talaq in three successive menstrual cycles.
It was the first country to reform its divorce system in 1929 according to the Quranic interpretation.
As per the Tunisian Code of Personal Status 1956, it enshrines that the institution of the marriage comes under the ambit of state and judiciary which cannot allow husband unilaterally to verbal divorce his wife without explanation of the reason.
Although, it is not a Muslim majority country some Islamic scholars consider the Srilankan Marriage and Divorce (Muslim) Act, 1951 as the ‘most ideal legislation on divorce (Triple Talaq)’. This act envisages that if the husband wants separation from his wife then he has to give notice of his intention to Qazi (Muslim Judge) along with the relatives of the partners, elders and other influential Muslims of the area, for attempting the provision of a rethink, reconsider and reconcile.
The process of divorce is very simple in Bangladesh just in three steps to divorce for both Husband and Wife (When the power of giving Divorce has been delegated in the Kabin) wanting separation:
The process of Talaq in Turkey can begin only if the marriage was registered at the Vital Statistics Office. Then the entire process of Talaq will be done in civil court.
Every divorce can only be executed by a court decision. An agreement to divorce between the husband and wife will not be constituted as a divorce, only a court decision may constitute a divorce. It is regulated under Law No. 1 of 1974 concerning Marriage (“Marriage Law”) which also further regulated under Government Regulation No. 9 of 1975 concerning the Implementation of Law No. 1 of 1974 concerning Marriage (“Marriage Regulation”).
It was the first Arab country to replace the Sharia court from the government-run personal status court.
The present law may not be ideal and it may not change the lives of Muslim women in an instant. But legal reform is an important component of a much larger process of social reform. The women and all those fighting for gender justice would be supported by this law. The opposition to this law stems mainly from the fact that it criminalizes the practice of Triple Talaq.
The objective is not to punish, it is to provide deterrence. The provision of punishment would give bargaining power in the hands of the wife who would likely be able to get the husband to negotiate. He may in the process provide her child custody or a place to live or return her belongings or some other support. It may prove to be some kind of accountability measure. In any case, conviction rates are pathetically low in matters of bigamy in Hindu marriage, dowry, domestic violence or even child sexual assault. The law makes the pronouncement of Triple Talaq a bailable and compoundable offense. In effect, this means that if the wife and husband are able to reconcile or amicably settle for a divorce, there would be no legal case.
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