“It takes one pleasant gesture to make someone’s day and only three words to destroy someone’s life”
–Anonymous
Atrocities on women have always been an issue of concern globally. In the case of our country, right from the ancient era where the status of women was almost unknown in the society through the worst phases in the medieval period to the advancement of women’s rights by various radical transformations, the journey of women towards gender equality in our country has been remarkable. Men always tried to suppress women and inflicted their manifestations in the form of blows of different vigor, sexual harassment, attempted hanging, psychological abuse which includes treating with disrespect, treating with utter disgrace, control over conduct and speech.
At the beginning of the ancient period, women in all aspects were equal to women. Their decline began with the dominance of the texts such as smritis and intrusion of the Islamic rulers and later on the Christianity absolutely curtailing their rights and liberties. In short, it can be said that there was no culture or religion which spared the female gender or allowed them to live in the society equally with men.
Though there are anomalies in all cultures and religions regarding the gender inequality marital atrocity especially on Muslim women in the form of announcing the word ‘Talaq’ three times through oral, written or more promptly by electronic form by the husband needed the cognizance by the Judicial organ and to terminate this decades-old practice ultimately to bring the female gender on the same platform of marriage. The landmark case of Shayara Bano v. Union of India and others [(2017) 9 SCC 1] can be marked as a revolution for the Muslim women which imposed an irreversible ban on Triple Talaq dated in the year 2017 following which the Parliament framed legislation on this known as The Muslim Women (Protection of rights on marriage) Act, 2019.
Shayara Bano case
This case brought into light the atrocities suffered by Muslim women in the form of Triple Talaq for the decades which was already banned in majority of the nations worldwide. Subsequently which the parliament brought legislation known as The Muslim Women (Protection of rights on marriage), 2017. One of the forms of divorce in the Islamic law that is Talaq-ul-biddat or Triple Talaq was a matter of question before the Supreme Court of India. This form of divorce is banned in the Shia community. However, the Hanafi school is of the view that this practice is immoral but still it was widely in the application by the Muslim husbands who followed the Hanafi school of thought. In the case of Talaq-ul-biddat, the husbands were not adhering with the other form of Talaq that is, Talaq-ul-Sunnat and also, he didn’t wait for the iddat period nor to the self-restraint from sexual relations.
In Talaq-ul-biddat, the husband renounces from his marital relations by pronouncing ‘Talaq’triple times in one sentence. The major drawback of this kind of talaq is that it is of unalterable nature unlike the other forms of divorce. The husband of Shayara Bano divorced her by Talaq-ul-biddat. She pleaded before the Apex Court that the practice of Triple Talaq, nikah halala (in this practice in which woman who got divorced by Triple Talaq establishes marital relation with another man, consummates the marriage after which get divorced again so as to remarry her previous husband) along with polygamy as unconstitutional. Consequently, it infringed on her various fundamental rights which include Article 14 (Equality before law), Article 15(1) (Prohibition of discrimination on the grounds of gender), Article 21(Right to life), Article 25 (freedom of religion). The petition of Shayara Bano emphasized how safeguarding against these practices has deep-rooted results in order to have a dignified life.
The issues before the Hon’ble Court were primarily the justifiability of Triple Talaq and the other issue in discussion was whether Triple Talaq is an important religious practice.
The Hon’ble Supreme Court in their verdict dated 22 August 2017 held the practice of Triple Talaq as unconstitutional by the majority ratio of 3:2. The majority judgment observed that Triple Talaq is not a vital religious practice whereas the minority was of the view that it is absolutely constitutional. Further, it was observed by the majority side that Triple Talaq violates the basic principles of the Quran. Therefore, whatever is contrary to the Quran is also against the Shariat.
The Government of India brought legislation named The Muslim Women (Protection on rights of marriage) criminalizing the Triple Talaq which received the President’s assent on 31st July 2019.
About the Bill
After the verdict of the Supreme Court declaring the practice of Triple Talaq as unconstitutional to safeguard the rights of married Muslim women, the government presented a bill in the Lok Sabha by the Minister of law and Justice, Shri Ravi Shankar Prasad known as The Muslim Women (Protection of rights on marriage) in 2017 and was passed by the Lok Sabha on 28th December 2017 and subsequently moved to the Rajya Sabha for further discussion.
The Triple Talaq was still practiced and it was vital to pass this bill from Rajya Sabha to put a stop on Talaq-e-biddat and to make strict provisions in the statute. Considering the fact that both the houses were not in session and conditions were prevailing which render it mandatory for the President of India to take prompt measures in this issue, the Muslim Women (Protection of rights on marriage) ordinance of the year 2018 with some alterations was circulated on 19th September 2018.
In order to reinstate the Muslim Women (Protection of rights on marriage), bill 2018, again it was presented in Lok Sabha on 17th December 2018 and it was passed on 27th December 2018. But it could not be introduced in Rajya Sabha and both the houses were not in session. Consequently, the Triple Talaq was still in practice. On 30th July 2019, Rajya Sabha passed the Muslim Women (Protection of rights on marriage). Accordingly, President Ram Nath Kovind gave its assent to the bill which became an act on 31st July 2019.
The Muslim Women (Protection of Rights on Marriage) Act, 2019
The act is divided into 3 chapters comprising 8 sections. Chapter I describes the extent of this act. Section 1 states that it shall extend to the whole of India and it shall be enforced on the 19th day of September 2018. Section 2 elucidates the definitions of “Electronic form” under clause (a) of the act which shall be understood as per section 2(1)(r) of Information Technology Act, 2000.
Clause (b) of the act defines that cases of Triple Talaq are triable by the Judicial Magistrate of the first class under the Code of Criminal Procedure, 1973.
Chapter II talks about the declaration of Talaq by the Muslim husband to be void and illegal. Section 3 of the act explains that the pronouncement of Talaq by the Muslim husband either orally or in writing or through an electronic form or by any other medium shall be void and illegal.
Section 4 defines that violation of section 3 by the Muslim husband will subject him to the punishment which will be in the form of imprisonment for a term of 3 years along with the imposition of fine.
Chapter III deals with the Protection of rights of married Muslim women under which section 5 defines that a married Muslim woman upon whom Talaq is imposed, she will be entitled to the maintenance amount for herself and her children which will be determined by the Judicial Magistrate. Section 6 authorizes the Muslim woman that in the event of Talaq, she can claim the custody of her minor children in accordance with the procedure regulated by the Judicial Magistrate.
Section 7 of the act in accordance with the Code of Criminal Procedure, 1973 elucidates that under clause (a), if information is furnished to the officer in charge of a police station regarding the commission of an offense of Triple Talaq either by the married Muslim woman or any other person related to her by blood or marriage, such offense shall be deemed as a cognizable offense as per this act.
Clause (b) states that the offense as per this act shall be compoundable which means that the victim or complainant can go for a compromise and at the instance of the complainant or married Muslim woman, the charges framed against the accused will be dropped but with the prior permission of the Magistrate which will include certain terms and conditions.
Clause (c) provides for the release of an accused if the Magistrate is satisfied that there are judicious grounds to release the accused on an application of the accused and after taking into consideration the view of Muslim women.
Requisite Reorientations in the Muslim Law
In today’s time, the issue of women’s rights in Islamic law requires special attention. But because of the activism of certain groups including Bhartiya Muslim Mahila Andolan, Bebaak Collective and National Women’s Commission who aided in the banning of the practice of Triple Talaq. The Constitution of India guarantees under article 25 equality and freedom from discrimination grounded on gender or religion, still, there are different customs which are based on heartless orthodox thinking which are wholly against the soul of the Constitution. Because the Muslim Personal Law is of uncodified nature so, the judicial body takes into account while delivering a verdict the rules stated in the Quran and Hadith.
Muslim women are at the inferior positions because of the absence of codified Muslim Law which leads to ambiguous interpretation of various rules of the Quran. Most of the time, the pointless ‘fatwas’ became a roadblock in implementing the rights of Muslim Women.
In this era, it is an urgent need to bring a codified Muslim Law. The Muslim Law followed today is of the era when Britishers used to rule over us. It is duly required to colonize the contents of the present Muslim Law and bring in uniformity with the Constitution of India.
Conclusion
With this legislation known as The Muslim Women (Protection of rights on marriage), India has joined many Islamic countries such as Pakistan, Bangladesh, Egypt, Tunisia, Srilanka, Turkey, etc, who have imposed on the practice of Triple Talaq. It was the need of the hour for the Muslim women and for the laws of our country to adhere to the principles of Secularism, Equality, and Democracy. The personal of different religions has gone through radical changes to tackle the concerns of gender equality on the subjects of inheritance and polygamy. Despite attain the objective, the subject of the gender of equality does not seep through all facts of Civil law. This legislation presents a golden opportunity to bring gender equality across all Indian laws.
“The views of the authors are personal“
Frequently Asked Questions
What is the punishment prescribed under the act for the Muslim husband if Talaq is pronounced on Muslim women?
Section 4 defines that violation of section 3 by the Muslim husband will subject him to the punishment which will be in the form of imprisonment for a term of 3 years along with the imposition of fine.
How this legislation came into existence?
This case brought into light the atrocities suffered by Muslim women in the form of Triple Talaq for the decades which was already banned in majority of the nation’s worldwide. Subsequently which the parliament brought legislation known as The Muslim Women (Protection of rights on marriage), 2017 and it came into force on 31st July 2019 which shall have effect from the 19th day of September 2018.
What were the rights infringed in the shayara bano case?
There were various fundamental rights that were infringed which include Article 14 (Equality before law), Article 15(1) (Prohibition of discrimination on the grounds of gender), Article 21(Right to life), Article 25 (freedom of religion).
Is there any remedy available to the Muslim husband under the act?
Section 7 of the act under which Clause (b) states that the offense as per this act shall be compoundable which means that the victim or complainant can go for a compromise and at the instance of the complainant or married Muslim woman, the charges framed against the accused will be dropped but with the prior permission of the Magistrate which will include certain terms and conditions.
