Analysis: The Muslim Women (Protection of Rights on Marriage) Act, 2019

Introduction:

The Muslim Women (Protection of Rights on Marriage) Act, 2019 was introduced in the Parliament of India which criminalized the act of triple talaq to divorce the Muslim wife. The Act was an outcome of the much contentious Shayara Bano v UoI case which was decided in the Supreme Court of India. The triple talaq or talaq-e-biddat issue hung like a Damocles’ sword for nearly three decades after the Shah Bano case in 1985-86 which dealt on the similar grounds regarding maintenance of the wife after divorce. Under the classic Islamic Shariat law, there exist four different types of divorce.

Talaq-e-biddat is one of such, wherein it becomes effective as soon as the words ‘talaq’ are spoken or conveyed thrice. This instant form of divorce was misused by a lot of men in India who would divorce their wives either through spoken words, over the telephone, skype, or through text messages on WhatsApp.[1] This would leave the women vulnerable and impuissant, thus to help them the Act was introduced.

Important Definitions and Implementation

The Act under clause (c) section 2, clearly specifies that only talaq-e-biddat or triple talaq shall have no effect and be considered void and illegal. Since the ‘talaq’ (repudiation of marriage) could also be given through any electronic form/device the Act also mentions the same as void. The Act recognizes the impuissant situation and the plight of the uninformed women whose husband may divorce her through an electronic form, from a place afar and thus under clause (b) section 2, empowers the married woman to file a case under the jurisdiction where she resides. [2]

Salient features of the Act

The Act would ensure gender equality and gender justice to Muslim women. The Act would also help in protecting the rights of married Muslim women and prevent divorce by the practice of ‘talaq-e-biddat’ by their husbands.[3]

• The Act proposes to declare the practice of triple talaq as void and illegal, and also makes it an offense punishable with three years imprisonment and fine
• The Act also provides for payment of subsistence allowance to married Muslim women and dependent children.
• The Act has made the practice cognizable, compoundable, and non-bailable.
• The custody of the minor children shall remain with the woman at the instance of the aforesaid divorce by her husband.

Ideology and Assessment of Act

While the triple talaq law aims for gender justice and has empowered women across India to stand up against injustice, many feminists consider the law to be a double-edged sword. Since the new law is retrospective in nature, it would mean that the offenses committed earlier can now be filed. It also raises questions on the government intentions as criminalizing a person in the matters of divorce is now only restricted to the Muslim community, but then again only the mere utterance of the word ‘talaq’ repudiates the marriage in the Muslim community.

Many Muslim feminists groups argue that the law is anti-minority rather than pro-women. As the criminal measures are not sufficient enough to cease triple talaq. If a man is jailed on the grounds of violating the law, the woman will be left vulnerable, as it may prevent the man from paying post-divorce maintenance and deprive the woman and her children from financial security.

While some feminists lend full support to the decision of the Supreme Court and the novel law. Since most of the Muslim men claim to be the subject of Shariah Law, their claims to ‘triple talaq’ in the past have affected a lot of women and their children. These women then approach the organization in search of justice. The new law since is retrospective in nature would help for a just cause. Criminalizing such practices will eventually lead to deterrence of the same practice. Their arguments are supported in line with the pan majority Muslim countries. The majority of Muslim communities have already criminalized offenses pertaining to personal laws including that of triple talaq and post-divorce maintenance. By lifting the perpetual threat of instant divorce, this law may empower women and embolden them against perpetual threats from their husbands.[4]

Conclusion

The Act though focuses on empowering and protecting the rights of Muslim women in the matters regarding divorce and subsequent maintenance, falls short at certain circumstances, and has few anomalies that need to be corrected. The inability of the husband to provide for maintenance if he is jailed since the law is cognizable and non-bailable. Nevertheless, the Act has managed to keep in line the injustice faced by Muslim women while upholding the spirit of the Constitution and its principles of equality and justice.

References:

[1] BBC News. (2019, July 30). India criminalises Muslim “instant divorce.” Retrieved from https://www.bbc.com/news/world-asia-india-49160818

[2] THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019 NO. 20, ACT OF PARLIAMENT,2019(India)

[3] [Press release]. (n.d.). Retrieved from https://pib.gov.in/Pressreleaseshare.aspx?PRID=1574075#:~:text=4 of 2019).,-biddat’ by their husbands.

[4] Conversation, B. T. (2019, September 5). Why Triple Talaq Law Has Divided Feminists In India. Retrieved from https://www.shethepeople.tv/news/why-the-triple-talaq-law-divides-feminists-in-india/