CRITICAL ANALYSIS OF THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019
Author: Rokkam Gayatri Kumari*
Editor: Neelakshi Bhaskar
The Muslim Women (Protection of Rights on Marriage) Act, 2019 was the outcome of the Muslim Women (Protection of Rights on Marriage) Bill, 2019, popularly known as the Triple Talaq Bill of 2019 that was the legal development from the landmark judicial pronouncement of the Shayara Bano v. Union of India ((2017) 9 SCC 1) delivered by the five-judge constitutional bench of the Hon’ble Apex Court of India which declared the observance of the Talaq- e- Biddat illegal.
Concept of Marriage and Dissolution under the Shariya Law:
Under the Shariya Law, marriage is considered an important phase of every Muslim’s life. It is conceived that a Muslim’s life is complete only upon their marriage. Marriage under Islamic Law is a civil contract between a husband and his wife, which like any other contract can be broken i.e., they can take divorce. But the Shariya Law prescribes certain ways through which the spouses can end their marital relationship. They are:
· Divorce by mutual consent;
· Talaq- e- Hasan;
· Talaq- e- Ahasan;
· Talaq- e- Biddat.
Talaq- e- Biddat:
'Biddat' is derived from the Arabic word “Bidda” which gives the meaning “innovate”. This type of divorce was not present since the initial phase. It was added later on. This method of Talaq is also called Triple Talaq or Talaq at one sitting because, in this form, the husband pronounces Talaq three times at one go, at one time. And with this pronouncement, the marriage gets dissolved. Also, in this type of divorce, the spouses are not given any period to reconcile or arbitrate or settle the matter. Here the husband can utter Talaq either through WhatsApp, mail, or notice as well.
Why is Triple Talaq a nasty kind of Divorce?
Talaq- e- Biddat is classified as a nasty form of Talaq as it does not give the ninety days fundamental measure for reconciliation between parties that is provided by the other types of Talaq as it is important for the couple to make a decision of their future set up of action concerning their matrimony. Also, within the alternative forms of marriage, nothing is decided at the heat of the moment, unlike Talaq- e- Biddat. Apart from India, there are many Muslim predominant nations that call Triple Talaq, a nasty form of divorce and have banned it.
Is Triple Talaq allowed by Islamic Holy Book- Quran?
The right law of Talaq as per the Sharia is that “Talaq” should be for a reasonable cause but cannot be given arbitrarily. It can be done only after an attempt of genuine reconciliation between the couple by the two arbitrators on both sides and should be compulsorily done. Only if their attempt of reconciliation fails, “Talaq” may then be enforced and it’s actually revocable but not final. This was the traditional form of Talaq which was later on politicized to form instant Triple Talaq as some scholars of the Islamic Law thought the traditional form was too lengthy and time-consuming. This was termed “Talaq- e- Biddat”.
The practice of Talaq- e- Biddat was challenged before the Hon’ble Apex Court by one Shayara Bano, an Islamic woman, in 2016 when her husband uttered Triple Talaq. The case is one of the judicial milestones in the history of India.
It was a writ petition that challenged the habit of a Muslim man divorcing his spouse by pronouncing numerous Talaq in a one Tuhr (time period between a woman’s two menstrual cycles), as this observance is a violation of the Articles 14, 15, 21 and 25 of the Constitution of India. The contention was that the utterance of Triple Talaq was not the essential tenet of the religious belief of the Muslims, and thus, cannot be saved under Article 25 of the Constitution of India. All India Muslim Personal Law Board, one of the respondents in the case contended that the Hon’ble Apex Court does not have the jurisdiction to adjudicate over an affair of a Muslim Personal Law, since it is a Quranic law, and not a law enacted by the Parliament. But, the Hon’ble Apex Court, by the majority has rejected the aforementioned argument of the All India Muslim Personal Law Board stating that the impugned practice is affecting the fundamental rights of the Indian citizens, and thus the Apex Court has complete jurisdiction over it. And the five-judge constitutional bench through a split decision of 3:2 struck down Talaq- e- Biddat with the justification that it is violating Articles 14, 15, 21, and 25 of the Constitution of India. Also, it directed the Government to make appropriate laws in this context.
JOURNEY OF THE TRIPLE TALAQ BILL
The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was passed by both the Houses of the Parliament of India, and it received the Presidential assent on 31st of July 2019, thus becoming the legislation to curb this evil practice.
Main Elements of the Act:
· The act has banned the utterance of Talaq- e- Biddat and declared it a punishable offense;
· The Muslim Women (Protection of Rights on Marriage) Act, 2019, is a legislation that aims at the protection of the rights of married Muslim wives, and also to prohibit divorce by the utterance of Talaq by their husbands;
· It became operational retrospectively from 19th of September 20