In this article Shelly Babbar, a student of School of Law, UPES discusses the Muslim Women (Protection of Rights on Marriage) Bill, 2018.

According to data that has been produced by Bharatiya Muslim Mahila Andolan, before the landmark ruling by the Supreme Court in Shayara Bano case in August, 177 triple talaq cases were registered.

The situation had become worse after the Supreme Court verdict in Shayara Bano case. On December 28, 2017, the Law Minister Ravi Shankar Prasad revealed in the Parliament that around 100 triple talaq cases have been registered since the Supreme Court verdict (August 2017), i.e., 25 cases a month.

Hence, Talaq has been pronounced rampantly (with the effect of instant divorce) and that such incidents have increased sharply

The Muslim women(protection of rights on marriage) bill, 2018 presented in the Lok Sabha to criminalize triple talaq. The bill though promulgated for the purpose of promoting Muslim women’s welfare. The bill got passed in the Lok Sabha but may not get easily passed in the Rajya Sabha.

Triple Talaq Issue

• Private matters of Muslims in India are governed by the Muslim Personal Laws or the Muslim Personal Law (Shariat) Application Act, 1937. Marriage is also a private matter and is governed by Muslim Personal Law unless the marriage is registered under the Special Marriage Act of 1954.
• Since it was the divorced woman who suffered most, Triple Talaq ‘s practice was challenged through public interest litigation / other cases both in the Supreme Court and in the High Courts.
• The issue of triple talaq became public in 1985 in the case of Shah Bano. The victimized wife also challenged the long-standing practices of talaq-e-bidat, nikah halala and polygamy, in addition to seeking alimony from her husband who gave ger triple talaq. The matter came to an end with the adoption of the Muslim Women (Protection of Rights on Divorce Act), which made it necessary for the husband to pay his wife’s food 90 days after divorce.
• In 2002 alone, the Aurangabad bench of the Bombay High Court invalidated the triple talaq by referring to the Quran Dagdu Pathan vs Rahimbi. In this case, the court declared that a Muslim husband cannot refuse marriage at will and must demonstrate that all stages–the reasons for divorce, the appointment of arbitrators and the conciliation procedure between the parties have been followed.
• These judgments formed the basis of several subsequent decisions and thus invalidated the instant triple talaq.
• The five-judge bench of Supreme Court in Shayara Bano vs Union of India examined the two specific questions: (1) Does the practice of Triple talaq enjoy the protection of the constitution and is Article 25(1) in the constitution is safeguarding all the fundamental right to “profess, practice and propagate religion”? and, (2) Is the practice of Triple Talaq is an essential feature of Islamic belief and practice?

The Supreme Court’s verdict in Shayara Bano case

The essence of the Supreme Court verdict by a 3-2 majority in the Shayara Bano case is as follows:

1. Instant Triple Talaq is unconstitutional and arbitrary.
2. It violated Islamic law while being used as a tool to oppress women.
3. The bench also asked the Central Government to enact a law/legislation in the next six months to govern marriage and divorce in the Muslim community.
4. Until any law is formulated by the government, there would be an injunction against husbands pronouncing Instant triple talaq on their wives.

The Supreme Court’s order, therefore, prohibited the instant talaq without affecting other forms of divorce.

The Muslim Women (Protection of Rights on Marriage) Bill, 2017

In accordance with the directions of the Supreme Court, the central government drafted a Muslim Women ( Protection of Rights on Marriage) bill, 2017 and presented it to the parliament on 28 December 2017. On the same date, the bill was passed by Lok Sabha, but it was not passed by Rajya Sabha.

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

1. Definition and Scope – The bill defines talaq as “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”. The act shall be extended to the whole of India except the state of Jammu and Kashmir.
2. Offenses and Penalty – The bill states that talaq-e-biddat is a cognizable offense with the punishment of imprisonment up to 3 years with fine. Also, the offense will be cognizable only if the married women against whom the talaq has been declared or any person related to her by marriage or blood, will give the information related to the offense.
3. Bail by the magistrate – Under the bill, the magistrate may grant bail if he is satisfied that there are reasonable grounds after hearing the women against whom the talaq is pronounced.  
4. Compounding of the offences by the magistrate – Compounding of the offences refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute. the magistrate may determine the terms and conditions of compounding the offence.
5. Allowance – the women against whom the offence has been committed is entitled to seek allowance and the magistrate will determine the amount to be paid as allowance.
6. Custody of the children – The women against whom the talaq has been pronounced will be entitled to get the custody of her minor children and the manner of custody will be determined by the magistrate.

Criticism of Criminalising Triple Talaq

• Asaduddin Owaisi: Triple Talaq Bill is violative of Article 14, 15, 24 and 26

AIMIM chief Asaduddin Owaisi said that all Muslim women oppose this bill and it violates article 14,15,24 and 26 of the Indian constitution. He added that The Supreme Court decriminalized the relationship between two men and two women, but you do not criminalize divorce legislation and why the bill states the Punishment of up to 3 years of imprisonment, whereas for Hindu husbands it is for one year under the Hindu Marriage law. He further said the act is against the plurality and the intention behind the act is only to send them to jail.

• Samajwadi Party on Triple Talaq Bill: We opposes the penal provision in the Bill

Samajwadi Party leader Dharmendra Yadav on Triple Talaq Bill said that when there is no penal provision for divorce in any other community then why the provisions related to the same are stated in the Triple Talaq Bill.

• TRS on Triple Talaq Bill: Govt is breaching rights of religious minority

TRS leader Jitendra Reddy said: “The government is violating the rights of a religious minority. It is not for this house to reform the religion. Our party strongly opposes the bill. This is a clear breach of Article 14 and also of Article 15 of the Indian constitution. This law is seen as the majority community that dictates minority customs and practices.

• AIADMK opposes Triple Talaq Bill

AIADMK leader Anwhar Raajhaa opposed the Bill in the House by saying the bill is against the principle of natural justice and against national integration. He said that any other religion or customary law has made it a criminal offense, as the bill has targeted only the Muslim women. It’s a civil arrangement. It is also a civil contract in Indian law.

• TMC Sudip Bandyopadhyay on Triple Talaq

TMC Sudip Bandyopadhyay leader opposed the imprisonment of Muslim men for three years saying it is excessive, arbitrary and irrational. “Why are we opposing it? If the husband goes to jail then who will pay the maintenance. He will find no scope and opportunity to provide maintenance. The only women who can truly benefit from it will be those whose husbands will have significant estates so that they can provide maintenance while being in jail,” he said.

He further said that this provision will further deteriorate a woman’s life. “A divorced women will suffer and justice will be denied to her. We propose that the bill is sent to a joint select committee,” TMC leader said.

Conclusion

Lastly, as mentioned above, not only Muslim women but Muslim men are also the sufferers of talaq-e-biddat. The 2018 bill declared that instant triple talaq or talaq-e-biddat is an offence under the laws and the Muslim men pronouncing the same, will be held liable for the offence against the Muslim women. Also, it states that it is a compoundable offence which means that if the magistrate is satisfied that there are reasonable grounds, the case may be withdrawn. Hence, not only women but Muslim men are also provided with the right to be heard under the bill.