Dilemma encountered by The muslim women (protection of rights on marriage)Act 2019.
Author:- Diksha Tiwari from JIMS ENGINEERING MANAGEMENT TECHNICAL CAMPUS OF LAW
The muslim Women(Protection of Rights on Marriage)Act 2019 is an act of the Parliament of India which criminalized triple talaq.
Triple talaq is a form of talaq also called talaq-e-Bidat in which muslim husband can give talaq immediately to muslim women by pronouncements of three times talaq . As it is irrevocable and instant talaq. The moment when the three time word talaq is pronounced by the husband, that moment marriage is dissolved.As this talaq-e-Bidat is become unconstitutional by landmark case of shayara Bano v UOI
Facts: Shayara Bano married Rizwan Ahmed for 15 years and she was divorced by him through triple talaq in 2016. She was one of the women who faced domestic violence and dowry harassment. In 2016, she filed writ petition on SC under the ground of violating Art 14,15,21,25 of Indian constitution. The Union of India as well Bhartiya Muslim Mahila Andolan also support Ms. Bano’s plea that these practices should be declared unconstitutional.
Issue :Whether the practice of triple talaq violates any fundamental rights and Does Shariat do give applicability to triple talaq?
Argument by petitioner: Mr. Amit Chadha, from petitioner side states that triple talaq is never recognised under Shariat Application Act,1937 nor Prophet encouraged this type of talaq. As this type of talaq only comes up due to custom and a wrong interpretation and does not have quranic sanction. He also stated various questions related to triple talaq by relying on the case of Shamim Ara v State of Uttar Pradesh, where the court gave guidelines for valid talaq. He also urged the court to ban talaq under ground that violated Art 14 and 15 of the Constitution and that if banned the dissolution if muslim marriage act 1939 would entirely apply equally to the community.
Argument by Respondent: It represent by Kapil Sibal who argued that Shariat Act does not codified on personal law but lays down rules of decision in matter of custom and also stated that marriage in muslim I’d private contract so it cannot question by legislature and also pointed out that definition of law in constitution does not cover personal law and argue that Art25 of Constitution which empower Parliament to form laws on social reforms but not related to secular activities and ask court classes it’s validity only if law make by Parliament on this issue. Regarding discrimination against women, he suggested that women have the option to register their marriage, restrict the husband’s right to divorce through talaq-e-bidat in Nikahnama, and demand a higher dower or Mehr, among other measures.
Judgment: The five judge bench of SC give judgment in favor of Shayara Bano and declared triple talaq is unconstitutional by ratio of 3:2 majority and directed legislature to take measure in order to stop abuse which happening on the women and court also highlight that though this triple talaq almost practice by Hanif school which is sinful.During the judgment, the Court expressed that numerous Muslim nations globally have already discontinued this practice, asserting that it lacks Quranic endorsement and was not advocated or practiced by the Prophet. The Court deemed the practice in violation of fundamental rights outlined in Part III of the Constitution.
Steps taken by government in order to stop abuse
As after the historical judgment of Shayara Bano v UOI. The government also introduced The muslim Women ( Protection of rights on marriage )bill ,2017.The proposed bill aimed to criminalize and invalidate triple talaq, whether spoken, written, or conveyed electronically. It suggested penalties, including up to three years of imprisonment for husbands practicing triple talaq. While swiftly passing through the Lok Sabha, the bill faced opposition in the Rajya Sabha but was eventually reintroduced and successfully passed by both houses in July 2019.
Challenges faced by government in order to imply Bill
Muslim Women( Protection of rights on marriage ) Bill 2017
The government introduced the bill, asserting the need for its formulation, citing 100 instances of instant triple talaq reported since the Supreme Court’s August 2017 ruling that banned triple talaq in India. On 28 December, 2017 this bill passed in lok sabha. This bill proposed to make triple talaq unconstitutional and imprisonment upto 3 years for the husband who pronounces talaq in any form like speak, writing on mail or message .
As this bill faced opposition by Communist Party of India (Marxist), Rashtriya Janata Dal, All India Majlis-e-Ittehadul Muslimeen, Biju Janata Dal, All India Anna Dravida Munnetra Kazhagam and Indian Union Muslim League but Indian National Congress support this bill.
The Muslim Women (Protection of Rights on Marriage) Bill, 2018.Subsequently, the Muslim Women (Protection of Rights on Marriage) Bill (2018) was introduced with the aim of safeguarding Muslim women. Although the Lok Sabha passed the bill in both 2018 and 2019, it did not receive approval from the Rajya Sabha, resulting in its lapse. On 19 September 2018, recognizing the persistent practice of instant triple talaq despite the 2017 judicial mandate, the government issued The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018. To replace the lapsed ordinance, a new bill, The Muslim Women (Protection of Rights on Marriage) Bill, 2018, was presented in the Lok Sabha by Union Law Minister Ravi Shankar Prasad.
The Muslim Women (Protection of Rights on Marriage) Act, 2019
The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019, was revoked on 31 July 2019 upon the passage of the bill by both houses of the legislature, Lok Sabha and Rajya Sabha. The President of India officially announced it in the gazette, transforming it into an Act of Parliament with eight sections. As with the introduction of The Muslim Women (Protection of Rights on Marriage) bill , 2019 in lok sabha it faced a protest by the opposition member who claimed that it violated the Constitution. This bill is tabled in Parliament by the law Minister Ravi Shankar Prasad . He said that this is not a question of religion but about justice to women.In justifying the legislation, Prasad mentioned 543 reported cases of triple talaq in the country. Following the Supreme Court’s ban on the practice, he stated that over 200 cases were reported.He also expressed that the parliament’s role is to create laws, while the interpretation of those laws falls within the purview of the courts.As Shashi Tharror of Congress expressed his view by saying that he was not against triple talaq but against the Bill As it fuse civil and criminal law he also say that it was a textbook example of legislation as it only focus only one community muslim even though abandoning wives is not unique he also further added that there should be a law which universally applicable on abandoning wives.Asaduddin Owaisi from AIMIM remarked on the BJP, suggesting that while the party claims concern for Muslim women, it opposes the rights of Hindu women to enter the Sabarimala temple in Kerala.
The bill violates constitutional rights as it gives 3 years jail to a guilty muslim man and 1 year jail to a guilty non muslim man for similar offense expressed by N.K. Premchandran of the RSS who opposed this bill.This bill also faces negative responses from the side if muslim women . As thousands of muslim women protest against this triple talaq bill. According to these women the Supreme Court has passed an order saying that triple talaq is unconstitutional then what is the need to criminalize it and man arrested and put behind the bar for 3 years who will look after his family and provide maintenance to them.
Also many others like Sumaiya Noumani whose father is member of All India Muslim Personal Law Board, said that they believe that The Muslim Women (Protection of Rights on Marriage) Bill, 2017 passed in hurry without any discussion with the scholar and Prophet of the community. As this bill is against the constitution , anti women and anti children and also it is anti social as in muslim law marriage which is a private contract turns into a criminal matter. She also said they believe in Sharia law and believe the words mentioned in it.Opposition parties in the upper house advocated for sending the Bill to a joint select committee, emphasizing the need for thorough consideration rather than hasty approval before the 2019 elections.Due to the impending expiration of the earlier ordinance on January 22, 2019, the Union cabinet approved the proposal to re-issue the ordinance criminalizing the practice of instant triple talaq.
Conclusion
After all this opposition still this bill passed become an act of The Muslim Women (Protection of Rights on Marriage) Act, 2019 it has significantly curtailed the occurrence of triple talaq cases in India. The prospect of legal repercussions, coupled with heightened awareness surrounding the Act, has dissuaded men from opting for immediate divorce as a solution to marital issues. The Act serves as a deterrent, fostering more considerate and respectful approaches to address conflicts within marriages but despite the SC ruling against triple talaq seven years ago, the situation on the ground remains unchanged. Women who sought legal intervention after being abandoned by their husbands continue to face challenges, living in a state of incomplete divorce. Muslim men have devised alternative methods to circumvent the ban, leading to a rise in cases where wives are subjected to torture to obtain a khula. Additionally, the number of instances where Muslim men abandon their wives has increased since the court’s judgment.
