THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017
to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Sixty-eighth Year of the Republic of India as follows:—
- (1) This Act may be called the Muslim Women (Protection of Rights on Marriage) Act, 2017.
(2) It shall extend to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
- In this Act, unless the context otherwise requires,—
(a) “electronic form” shall have the same meaning as assigned to it in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000;
(b) “talaq” means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband; and
(c) “Magistrate” means a Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973, in the area where a married Muslim woman resides.
DECLARATION OF TALAQ TO BE VOID AND ILLEGAL
- Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.
- Whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine.
PROTECTION OF RIGHTS OF MARRIED MUSLIM WOMEN
- Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced, shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children as may be determined by the Magistrate.
- Notwithstanding anything contained in any other law for the time being in force, a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.
- Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the said Code.
STATEMENT OF OBJECTS AND REASONS
The Supreme Court in the matter of Shayara Bano Vs. Union of India and others and other connected matters, on 22nd August, 2017, in a majority judgement of 3:2, set aside the practice of talaq-e-biddat (three pronouncements of talaq, at one and the same time) practiced by certain Muslim husbands to divorce their wives. This judgement gave a boost to liberate Indian Muslim women from the age-old practice of capricious and whimsical method of divorce, by some Muslim men, leaving no room for reconciliation.
- The petitioner in the above said case challenged, inter alia, talaq-e-biddat on the ground that the said practice is discriminatory and against dignity of women. The judgement vindicated the position taken by the Government that talaq-e-biddat is against constitutional morality, dignity of women and the principles of gender equality, as also against gender equity guaranteed under the Constitution. The All India Muslim Personal Law Board (AIMPLB), which was the 7th respondent in the above case, in their affidavit, inter alia, contended that it was not for the judiciary to decide matters of religious practices such as talaq-e-biddat, but for the legislature to make any law on the same. They had also submitted in the Supreme Court that they would issue advisories to the members of the community against this practice.
- In spite of the Supreme Court setting aside talaq-e-biddat, and the assurance of AIMPLB, there have been reports of divorce by way of talaq-e-biddat from different parts of the country. It is seen that setting aside talaq-e-biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims. It is, therefore, felt that there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce.
- In order to prevent the continued harassment being meted out to the hapless married Muslim women due to talaq-e-biddat, urgent suitable legislation is necessary to give some relief to them. The Bill proposes to declare pronouncement of talaq-e-biddat by Muslim husbands void and illegal in view of the Supreme Court verdict. Further, the illegal act of pronouncing talaq-e-biddat shall be a punishable offence. This is essential to prevent this form of divorce, wherein the wife does not have any say in severing the marital relationship. It is also proposed to provide for matters such as subsistence allowance from the husband for the livelihood and daily supporting needs of the wife, in the event of husband pronouncing talaq-e-biddat, and, also of the dependent children. The wife would also be entitled to custody of minor children.
- The legislation would help in ensuring the larger Constitutional goals of gender justice and gender equality of married Muslim women and help subserve their fundamental rights of non-discrimination and empowerment.
- The Bill seeks to achieve the above objects.
RAVI SHANKAR PRASAD
The 15th December, 2017.
Source of Information:
I have some points in mind.
1. This law will not be applicable to the state of Jammu & Kashmir. J&K is an integral part of this country, yet it is not governed by laws that hold good elsewhere. That of course is an irony we have accepted willingly or unwillingly since the birth of J&K!
2. We boast that our country Bharat (that is India) is a secular country. What does “secular” mean? If one carefully reads the history of European countries where this term was coined and assigned a specific and incorruptible meaning, then we may realize that “secular term” does not apply to our system of government. By definition, “secularism” essentially means “the belief that religion should not be part of the affairs of the state.” In other words laws cannot be enacted on the basis of one or another religion. That again implies that punishment awarded to all citizens must be the same for a specific crime irrespective of his/her religious affiliation. This happens in most cases. I do not understand why a special law should be enacted to punish a Muslim husband who attempts to pronounce talaq on his wife but fails to get it effective? Is the new proposed law not discriminatory? This point would become clearer in the following. (I have discussed the history of secularism and its definition in my post of 9 Oct 2016.)
3. I have failed to understand the rationale behind the punishment – severe in my opinion -for a trivial offence/crime committed or no crime (any doubt?) committed by a Muslim husband. My arguments follow:
Traditionally triple talaq system was so far being followed by Muslim community just like traditional niqah. One did not require legal validation or approval in either case. This is true also in the case of marriage (but not divorce) in respect of Hindus and other communities. The law of this land permitted traditional ways of marriage and divorce. It appears that talaq pronounced by a Muslim husband on his wife in accordace with what is described in Qur’an (taking 3-4 months) is legally permitted. The proposed bill does not speak a word about this. What it says is that the pronouncement of “talaq, talaq, talaq” on a wife through any medium shall be treated null and void.
Note that pronouncing “talaq, talaq, talaq” has no effect on the marital status of the husband and wife. Thus this pronouncement amounts to declaring the intention of divorce on the part of the husband. But the wife can object, “This is not the way of getting divorce. You have to follow a legally acceptable method. I continue to enjoy my right as your wife.”
Are you punishing the husband for indicating his intention? Is stating “talaq, talaq, talaq” a crime even though it effects no divorce?
Compare this situation with a case in which a Hindu/Jain/Sikh husband says to his wife, “I am divorcing you. We are therefore no more husband-and-wife. …”
This is indeed hypothetical, because we are not accustomed to hear such words. But if someone says so, would you claim that he has committed an offence? No! Isn’t that so?
Since in Muslim community, “talaq, talaq, talaq” has been traditionally spoken and has had material effect so far. But ones the bill comes into force, these words lose their significance. It stating these words a crime, then?
The real problem in fact needs to be understood. The problem arises when a husband throws his wife out of his house, thus unilaterally depriving her of her rights as his wife. It does not matter whether it is done under the pretext of talaq (that does not really take place according to the Bill) or otherwise. The husband would then be found guilty of an offence/crime.
We are discussing here specifically the case of a Muslim husband-and-wife. But such a situation may arise in other communities also. How would you handle the non-Muslim case? You would find out how to redress the grievances of the wife. That should be done in all case irrespective of the religious affiliation of a husband. This would be advisable in a “secular” system of governance. Otherwise I would say the Muslim case is being discriminated. To treat the case of Muslim husband as non-bailable does not help in redressing the grievance of the victim.
I reiterate: Uttering “talaq” three times in one go is not an offence/crime when it does not effect a divorce. What really is the crime is husband’s throwing the wife out, severing her rights as wife. For such an action a husband must be penalized irrespective of his religious affiliation. What is the justification of treating a husband differently in the case of Muslims.?
4. I find the proposed Bill lacking in some respects:
(a) This bill makes triple talaq illegal. But it says no words about what would be the legally permissible method of getting talaq. In the case of other communities interested party has to approach the court of justice for grant of talaq with justifiable arguments. What will be the role of courts in the case of Muslims?
(b) In Muslims, talaq is pronounced by a husband on his wife, following the procedure given in the holy book, Qur’an (not talaq-talaq-talaq pronounced in one go). As far as I could know a wife is obliged to accept it mostly unwillingly and helplessly. Banning triple talaq offers a remedy. But that does not stop the misery a wife who has to suffer due to talaq, which otherwise is permissible. (In my post of Nov 1, 2016, I have presented what is described in Qur’an regarding talaq.
(c) I understand that a Muslim wife does not enjoy the right to pronounce talaq on her husband, notwithstanding his acceptance. This Bill does not award this right on the wife. Or it does not emphasize that talaq should be based on their mutual agreement. Or it does not clarify that there must be strong reasons for unilateral pronouncement of talaq. – Yogendra Joshi