The Muslim Women (Protection of Rights on Marriage) Act 2019
"It is a popular fallacy that a Muslim male enjoys under the Qur’anic Law an unbridled authority to liquidate the marriage. The whole Qur’an expressly forbids a man to seek pretexts for divorcing his wife so long as she remains faithful and obedient to him. Indeed a deeper study of the subject discloses a surprisingly rationale, realistic and modern law of divorce."
(Justice V.R. Krishna Iyer)
On 22nd August, 2017, the 5 Judge’s bench of the Supreme Court of India in the case of Shayara Bano versus Union of India set aside triple talaq by a majority of 3:2 to protect the rights of Muslim women on divorce. After that, the Modi Government enacted The Muslim Women (Protection of Rights on Marriage) Act, 2019, to declare triple talaq as void. The decision of Supreme Court is a law as per Art 141 of the Constitution. So, a legislation to reiteratively declare a settled position of law serves no purpose except to harass and victimize Muslim families by penalizing the husband of married Muslim women with imprisonment for 3 years and fine merely for uttering triple talaq.
Protection or Victimization
Following Shayara Bano, saying triple talaq can no longer break the marriage. Since triple talaq is declared void, its pronouncement can’t be construed as a criminal offence or even as a simple or civil wrong. Muslim divorce is completed, if not revoked expressly or impliedly after the 3 months of the pronouncement of talaq when iddah expires. So penalizing the husband beyond iddah period for 3 years will automatically complete the divorce and end the marriage as it leaves no room for reconciliation between the spouses. The Act revives the problems of triple talaq which was settled by the Supreme Court by setting it aside in Shayara Bano for not providing a scope for mediation and reconciliation between the spouse due to its immediate and irrevocable effect. Such a disproportionate punishment of husband for 3 years particularly due to the complaint of the wife or her relatives merely for saying triple talaq will create enmity and irreconcilable differences between the husband and wife that even if the husband is compelled to live with the wife after the expiration of the iddah, there will be no cordiality in marriages which will lead to the abandonment of wife because of the fact that desertion has not been criminalized yet. Thus the Act will not save the marriage rather, it will break the marriage. The Act is not to empower married Muslim women but to but to play with the innocent women who don’t know much about the law.
Further, putting the husband behind bars for 3 years will adversely affect him in terms of losing jobs, opportunities, prospects of growth, his image and status in the society, ruining his life completely which will be the another cause to increase the hostilities between the husband and wife. How could one expect the husband to revoke his talaq and the wife to go back to him after getting into such a hostile situation? The Act allows the married Muslim married woman upon whom, triple talaq was pronounced to seek allowance for herself and her dependent children from her husband. But it is important to understand the problem that how he will provide her subsistence when he will remain in jail without working or earning. The Act does not provide any means or measures to ensure her allowance and financial security. Hence, the Act will not protect and benefit the women whose husband is a daily wager or does not has have any estate or property from which allowance can be given. [It will also make it difficult for her to receive maintenance from him even for the period of iddah and pregnancy which is her right granted by the Islam. If the Modi government really wants to protect the rights of Muslim married women, they should have enhance the benefits and protections granted by the Muslim Women (Protection of Rights on Divorce) Act 1986, section 125 of CrPC, or they could include triple talaq under domestic violence by amending PWDV Act, 2005 to enable Muslim married women to claim additional maintenance under section 20(1) (d) of Domestic Violence Act, 2005, instead of making the law to penalize it. In fact triple talaq law is much weaker as compared to the already available laws in terms of protecting the rights of married women Moreover, to constitute a criminal offence, both the actus reus and mens rea is necessary. If the husband will be sent to jail merely for uttering triple talaq without any intention to divorce his wife, just in the heat of extreme anger during common husband-wife fighting, it will be a gross injustice to the husband.
Most importantly, what must be noted is the confusing title of the Act i.e., The Muslim Women (Protection of Rights on Marriage) Act rather than The Muslim Women (Protection of Rights on Divorce) Act, The issue of triple talaq is related to the modes of divorce of Muslim Women not the marriage. The Bill neither deals to protect the married women from the sufferings or the problems faced by married women which are assault, domestic violence, physical and mental abuse, etc. nor the Bill seems to be interested to acknowledge the institution of divorce.
Conclusion and Suggestions
After evaluation of the Act, it can be concluded that it will not empower Muslim married women but it will surely victimize both Muslim married women and men as it can be easily misused. There are neither any appropriate measures in the Act to empower, protect the rights of married Muslim women nor any safeguards against its misused to prevent the harassment of innocent Muslim men. The bill has the capacity to destroy the generations of Muslim families. Modi government is attempting to bring the uniform civil code on the table by messing around with the beliefs and customs of different religions. In short the Act violates art, 14, 15 and 21 as it is arbitrary, unjust and unreasonable.
Women are to be empowered, not to be regulated by law. It is the change in mind-set towards women which is needed not an excessively discriminatory law.
1. so, the first step to women empowerment, whether for Muslim women or other, is to acknowledge and respect her rights by putting an end to the culture of suppression and subduing her in the society; and that can be achieved only by transforming and improving the society through education, discussion and creating awareness in the society.
2. Similarly, to empower Muslim women, Muslim Communities need to be educated and aware about her rights, status and protections granted by Islam, the Constitution and the law of this Country. The govt. should launch a program to educate and aware the Muslim Community and married couples about the best form of talaq i.e., talaq-e-ahsan and approved form of talaq i.e., talaq-e-hasan to provide fair, reasonable protection and justice to the married Muslim women than penalizing their husband excessively to the disadvantage of her.
3. There is also a popular misconception among the non-Muslim that power of dissolution of Muslim marriage is available only to the husband. Wife may also terminate the marriage through the following modes:
i. Talaq-e-Tafweez (delegated divorce) ii. Khula (redemption) iii. Mubarat (mutual freeing) iv. Lian (mutual imprecation) v. Faskh (judicial annulment)
Muslim women needs to be aware about these modes of termination of marriage
4. Another important tools available to Muslim women to protect their rights is the creation of woman-friendly nikah-namah(a binding contract & a fundamental element of an Islamic marriage which describes the rights & obligations agreed upon by both parties (the bride and the groom) wherein she can add various clauses like her right to put an end to the marriage, the rights to custody of children if the couple separated, monetary decisions ranging from the right to have a career, to have kids and raising them a particular way, to where couple choose to reside, among other things. These are some of the Islamic rights she can claim while getting the marriage contact drafted.
5. The Govt. should take special steps to empower Muslim women by providing various skill development courses and training at free of costs and by securing them jobs related to such skills so that she can support herself financially to enable her to live a dignified life and instill her confidence to no longer live at the mercy of her husband or anyone else. Considering the worst condition in terms of literacy, education etc. of the Muslim women in India, a reservation quota especially for the them at least for education in schools, colleges, professional institutions should be made soon if the Modi govt. are genuinely concerned about the empowerment and welfare of the Muslim Women in the country.
S.M. MARJINA SULTANA 🌸🌸🌸🌸🌸🌸🌸🌸🌸🌸