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

Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced in the Indian Parliament by Central Government on 28 December, 2017 and passed on the same date in Lok Sabha.

Background

In August 2017, the Supreme Court had given a 397 verdict on Instant Triple Talqq and held that this practice is unconstitutional, arbitrary and violated Islamic law while being used as a tool to oppress the women. In the same verdict, the Supreme Court also asked the Central Government to enact a law / legislation in next six months to govern marriage and divorce in the Muslim community.Until the government formulates a law, there would be an injunction against husbands pronouncing Instant triple talaq on their wives. Thus, the Supreme Court order banned the instant talaq while not touching other modes of divorce.

The bill was formulated by Central Government and introduced in Parliament in December, 2017.

Salient Provisions

The key provisions of this bill are as follows:

• This act is applicable in entire India except Jammu & Kashmir
• Any pronouncement of talaq (talaq-e-bidat) 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 triple talaq to his wife shall be punished with imprisonment for a term which may extent to three years and a fine.
• 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.
• 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.
• The offence of pronouncing triple talaq shall be a cognizable and non-bailable offence.

Criticism to the Bill

Major criticisms of the bill are as follows:

• It is interfering with the religious tenets of the Muslims. However, since Muslims themselves have different interpretations and Talaq-e-bidat is something frowned upon by everyone, there is no substantial weight in this opposition.
• Criminalising talaq-e-biddat does not address the issue of unilateral talaq, which men can still pronounce over a period of three months under the personal law. So the argument put forth to cater to this anomaly is that instead of bringing in a new legislation that merely criminalises instant talaq, the government should amend the existing Dissolution of Muslim Marriages Act, 1939.
• The Act requires women to approach the court for divorce. It should be made gender-neutral so that even men have to approach the court for a divorce. Although the criticism is well founded but bringing a legislation to at least ban instant triple talaq is a welcome move and shows the willingness and endeavour of government to move ahead in the direction of prevention of harassment of women.

Personal Law Vs. Fundamental Rights Debate

This bill has also reignited the personal law versus fundamental rights debate. Article 13 of the constitution lays down that all laws should conform to the fundamental rights. If any law goes against FR then it has to be struck down. Here, the debate is whether the word ‘law’ comprises personal laws of various communities or not. It means whether the personal laws can also be struck down if they violate the fundamental rights? Some of the important cases in this context are as follows:

• In Krishna Singh Vs Mathura Ahir, 1980, the SC held that “Part III of the Constitution does not touch upon the personal laws of the parties.
• In 1952, a Bombay High Court judgment held that Article 13 of the Constitution doesn’t cover personal laws.
• In Anil Kumar Mhasi Vs Union of India, 1994, the court tested the validity of some sections of the Indian Divorce Act (a personal law for Christians) on the touchstone of fundamental rights.
• Even in the judgement of triple talaq ,the SC has declared it constitutional on the grounds of its violation of Article 14 and  “against the basic tenets of the Holy Quran”. The court has not starkly framed the issue as an opposition between the constitution and personal law and has not come out with any authoritative judgement in this regard.

Thus, the court judgements have been mixed and there are standard or universal stand of the courts in this regard. It is very important that all laws should be judged and tested in line with the constitution so as to maintain the hard earned values of justice, liberty and democracy. So to that extent, all personal laws should stand in conformity with the constitution. Even various committees like Pam Rajput committee on the status of women in India — sought a ban on gender discriminatory practices propagated by personal laws. Same holds true of the report of various law commissions. But the reforms cannot be brought about in one day. They can only be done with the evolution of the society and changes in their thinking. So the SC in the recent judgment has perhaps taken a right step by addressing the aspirations of the Muslim women.