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The Muslim Women (Protection of Rights on Marriage) Act 2019: Gender Justice and Equality

Monika Gupta

This legislation is a victory of gender justice and will promote much needed equality within the society.

The Muslim Women (Protection of Rights on Marriage) Bill 2019 became an Act after being passed by both the Houses of Parliament on 30th July 2019 and subsequently receiving the President’s nod. This Act, also commonly called as the ‘Triple Talaq Bill’, is one of the historic decisions safeguarding Muslim women’s Fundamental Rights and shielding them against arbitrary religious practices. Before understanding the deeper perspective about the Act, it’s important to look at the basic facts surrounding the Act.

According to the Muslim Personal laws, there are mainly two ways (under Talaq-e-Sunnat) according to which a husband can divorce his wife. First being, Talaq-e-Ahsan which refers to a case in which a husband says 'Talaq' once and then waits for the next three months. The second way is Talaq-e-Hasan in which he says 'Talaq' once every month for three consecutive months. In either case, if they resolve the issues between them within the 90 days (Iddat period), the marriage remains ‘valid’ and Talaq becomes ineffective. The third way is through Talaq-e-Biddat in which a husband instantly says 'Talaq' three times (in one go) to his wife and the marriage relationship comes to an end at that very moment. He can say this ‘instant talaq’ either directly or through phone, message, letter, email etc.

The Indian Parliament, through this above mentioned Act, has declared ‘Talaq-e-Biddat’ unconstitutional and illegal and has made it punishable under the rule of law. Another notable fact is that ‘Triple Talaq’ is already banned in many Muslim majority countries like Malaysia, Jordan, Egypt, Saudi Arabia, UAE and Iran and this list also includes our neighbouring countries of Pakistan and Bangladesh. Most importantly, the significance behind bringing this legislation can also be seen in the context of regular violation of the basic fundamental rights of Muslim women.

Background of the legislation

This Act of 2019 comes in the backdrop of previous judicial judgements and practices. In 2017, a five-judge bench of the Supreme Court of India declared “Triple Talaq” as unconstitutional. This judgement by the Supreme Court came two years after a writ petition was filed by Ms. Shayara Bano from Uttarakhand who was divorced when her husband ended fifteen years of marriage via a letter that has “talaq” written thrice. She moved to the court saying that practices like ‘Triple Talaq’, ‘Nikah Halala’ and ‘Polygamy’ violate women’s rights under Article 14 and 15 of the Indian Constitution. Even after the Supreme Court judgement in 2017, there were many instances of ‘Triple Talaq’ throughout the country and on the basis of this, the Centre in 2017 decided to make a law that prohibits the practice of ‘Triple Talaq’.

Provisions of the 2019 Act

· This Act declares all declaration of ‘Talaq’ or ‘Talaq-E-Biddat’ in any form, electronic or written, as unconstitutional, illegal and void.

· The Act also recognizes ‘Triple Talaq’ as a cognizable offence i.e. police can arrest an accused person without a warrant. The punishment prescribed by the law includes three years of imprisonment with a fine.

· Within the provisions of the Act, a complaint can be filed by either the woman herself (to whom the divorce has been given) or any person related to that woman by blood or marriage.

· A bail can only be issued to the male accused after hearing the woman concerned and once the magistrate finds reasonable grounds for granting the bail.

· A Muslim woman against whom ‘Talaq’ has been declared can ask for the allowance for herself and her dependent children from her husband.

· In terms of minor children, the woman is entitled to seek their custody from the court.

Contentious issues surrounding the Act

After the Bill became an Act and was operational, it was criticised by some of the opposition parties, Muslim leaders and clerics on various grounds. One of the issues raised was regarding the punishment accorded to Muslim men, calling it severe and apprehensions were raised that it might be misused by police and other agencies to target Muslim community. They also raised an issue saying ‘criminalizing’ divorce is ‘unusual’. The others pointed that this law might marginalise the Muslim women further because now she will be forced to stay in an unhappy marriage which will be verbally and emotionally torturing. There were others who called it a “Kaala Kanoon” and said that the state should have no place in regulating a marital home or relationship.

Act of gender justice and equality and its way forward

Despite being severely criticized, the Act comes with a lot of ‘positives’ for Muslim women. This Act is not only a piece of legislation but a symbolical representation of India’s stand against gender discrimination and its fight towards gender justice and discriminatory policies against women of a particular community. To all the criticisms listed above, there are valid and justifiable arguments against the same which are listed below and they justify how this piece of legislation is a way forward for Muslim women and tries to correct the wrongs perpetrated against them and thereby end the various forms of discrimination.

· This Act is not criminalising ‘divorce’ but criminalizing ‘instant triple talaq’ practices which are known in history for making Muslim women vulnerable and putting their lives in jeopardy. In clear words, this legislation clearly prohibits ‘Talaq-E-Biddat’ which is an unfair practice giving supreme power of dominance to Muslim men against their wives.

· Second important aspect is, ‘Triple Talaq’ doesn’t find mention in Sharia Islamic Law or the Quran and therefore this legislation doesn’t hurt or target any religious community.

· One needs to understand the grave consequences of ‘Triple Talaq’ for women and how it marginalises their very existence within the society. Within seconds, the Muslim woman is devoid of any rights, claim and association with the man, leave aside the ‘emotional’ and ‘vulnerable’ side of it. The severity of such a situation has probably pushed many Islamic countries to abandon this and if now India has taken this initiative, it should be welcomed with open hands rather than criticised with closed minds.

It would not be out of place to conclude in the words of our Prime Minister Modi, this legislation “…corrects a historical wrong done to Muslim women” and at the same time “an archaic and medieval practice has finally been confined to the dustbin of history”. This legislation is thus a victory of gender justice and will thrive ways of promoting equality within the society.

The author is a research scholar in School of International Studies, Jawaharlal Nehru University and is an intern at Academics4nation.



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