The Muslim Women (Protection of Rights on Marriage) Act

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According to the census report of 2011, Muslim women comprise 6.9% of India's population. However, only 4.9% of Muslim women have formal employment. Close to 48% of them are illiterate, as per the Census (highest in any religious group). According to experts, lack of education and patriarchy have been two key factors for Muslim women's poor workforce participation and the same is for their social backwardness.

The Global Multidimensional Poverty Index, 2018 observed that every third Muslim in India is multi-dimensionally poor, implying that 33.33% of Muslims live with lack of education, poor health and nutrition, unsafe housing, unsanitary water, and living conditions, in addition to having a low income. These coupled with discrimination amplify the inequalities and social challenges Muslim women face.

But beyond these educational and socio-cultural factors, some of which are common to several other Indian minorities, there are several issues at play which haven't been investigated. One such arena was the derogatory status they dealt with inside the religion. With the strong unconditional backing of patriarchy, men are able to exert enormous pressure and threat. Manipulating Shariat laws and sometimes by not showing compliance, they reduced women to mere objects. The situation exacerbates when it comes to relationships. Marriage, property sharing, and divorce were the primary areas where men wanted women to be their subordinates.

Thanks to globalization, migration, transnational companies, non-state actors, Non-Governmental Organisations (NGOs), and Civil Society Organizations (CSOs), the conditions of women and Muslim women, in particular, have ameliorated. All the stated players have  helped in achieving certain rights to women. The feminist viewpoint has now tuned more to be liberal opinion, which should be the default. Issues like bodily autonomy, expression rights, and personal rights started to appear in air more and more times. This is a global phenomenon that surely has implications on Indian society.

The Muslim Women (Protection of Rights on Marriage) Act

The Muslim Women (Protection of Rights on Marriage) Act, widely known as the Triple Talaq Act, was passed by both houses of parliament on 30th July 2019. The act came to reality after a prolonged battle in the judiciary followed by multiple ordinance promulgations by the head of state. The bill initially passed Lok Sabha in 2017; however, Rajya Sabha's session was over by then, and the bill got passed. It is the Shayara Bano vs Union of India case that laid the foundation for the act. The court set aside the act of instant triple talaq. After much deliberation, parliament brought the act aiming for the empowerment and serving justice to Muslim women.

Divorce in Islam

The emergence of personal law traces back to the colonial period where the British kept themselves distant from involving unreligious issues ,thanks to 1857 First Independence War. Even when criminal laws were codified, their decision to stay away from homogenizing cultures gave birth to personal laws. The reasonable answer is they never wanted a double front war (Muslim and Hindus) by enacting uniform legislation.

Religious practices of Muslims in India are largely based on Shariat and muslim personal law, which draws its traits from the Quran and Sunnah. Divorce in Islam varies from sect to sect, region to region. However, in Muslim personal law, divorce can be achieved by:

1. Husband without the intervention of court (talaq)

2. Through mutual consent without court intervention (mubara'at)

3. By a judicial decree at the suit of the husband or wife (faskh)

A major catch here is that the wife cannot grant divorce at any circumstances; the best she can do is initiate the process of divorce (Kullah). The bone of contention is talaq-e-biddat, where talaq is pronounced three times in a single tuhr (period between two menstruations). It is instant and irreversible.This rigidity of norm has created enormous tension among women community. Also its sources and religious sanctity are often questioned even from Isamic community, to note, it is legally banned in Muslim-majority states like Egypt, Pakistan, and Indonesia.

Legal History

Voices against triple talaq were formed ever before the Shayara Bano case. While it didn't explicitly make unconstitutional, the legal sanctity the practice lacked contrary to Quran and Shariat was challenged in Shamim Ara v. State of U.P. Parallel to these legal developments, women activists, Muslim women groups held public hearings and consultations, chronicled the experiences of Muslim women upon divorce, and even attempted to lobby with the government to legislatively ban instant triple talaq.

The watershed event for the act, the Shayara Bano vs Union of India, came to the Supreme Court in the year 2017. In 2016, Shayara Bano was divorced (triple talaq) by her husband, Rizwan Ahmed, without stating any valid reasons. Shayara filed a writ in the Supreme Court challenging the constitutionality of triple talaq (talaq-e-biddat) along with practices of polygamy and nikah halala, as they infringe upon the fundamental rights of women (Article 14, 15,21).

The legal battle in the Shayara Bano case was intense, with the Supreme Court forming a five-judge bench to hear the case. The bench, comprising Chief Justice J.S. Khehar, Justice Kurian Joseph, Justice R.F. Nariman, Justice U.U. Lalit, and Justice Abdul Nazeer, heard arguments from both sides. Shayara Bano's lawyers argued that triple talaq was arbitrary, discriminatory, and violated Articles 14, 15, and 21 of the Indian Constitution. On the other hand, the All India Muslim Personal Law Board (AIMPLB) and other Muslim organizations defended the practice, arguing that it was an essential part of Islamic law and protected under Article 25 (freedom of religion).

The Supreme Court delivered a historic verdict on August 22, 2017, declaring triple talaq unconstitutional by a 3:2 majority. The court held that triple talaq was not an essential part of Islam and was, therefore, not protected under Article 25. The majority judgment, delivered by Justice Kurian Joseph, Justice R.F. Nariman, and Justice U.U. Lalit, stated that the practice was discriminatory and violated the right to equality and dignity. Chief Justice J.S. Khehar and Justice Abdul Nazeer dissented, holding that the practice was an essential part of Islamic law and protected under Article 25

Contention In Past

Muslim personal law has always been in the forefront of Indian legal and political history. The fierce battle between Muslim women, personal law, and secular laws reached its first peak in 1985 in the Shah Bano case. Shah Bano, a woman in her 60s, filed a case in Indore magistrate court demanding maintenance allowance from her divorced husband. The husband, Mohammed Ahmed Khan, was denied this demand and proclaimed he had done everything according to personal law. Dejected by the magistrate court order to pay an allowance of Rs 25 per month, Ahmed Khan approached the Indore high court. The court, after trials, not only upheld the magistrate court judgment but also hiked the allowance to Rs 179. Ahmed Khan, a lawyer by profession, was not willing to bow down to his ex-wife and decided to consult the Supreme Court. In between, he proclaimed the 3rd and final talaq. According to Muslim personal law, he is now free from providing any kind of allowance. Since the contract of marriage is deprived, he will be a stranger to Shah Bano, and getting an allowance in the name of maintenance is now haram. However, in 1985, the Supreme Court delivered a watershed judgment by upholding the right of Muslim women to get maintenance allowance under the secular provisions of CrPC 125.

Political weather across the country turned grey. Large-scale protests started to rise from every nook and corner. By the time, the intensity and volume scaled up. The then Rajiv Gandhi was put into a turmoil. Ulemas, organizations, believers, including women, saw this as a nascent step towards a uniform civil code eventually this will hinders their religious believes. It became manageable only when the Muslim Women (Protection of Rights on Divorce) Act was passed in 1986, whose only objective was to circumvent the judicial order of 1985. The law reinstated the provisions of personal law to pay allowance just for the iddat period (3 menstrual cycles). From then, everyone, with no exception to the judiciary, is facing dilemmas in Muslim divorces and associated issues. Various high courts have provided contrary judgments, which have ameliorated the legal ecosystem and jurisprudence.

However, the tussle between CrPC 125 and Muslim Women (Protection of Rights on Divorce) has almost met a solution. Justice Nagarathna and Justice George Asri in Mohammad Abdul Samad vs State of Telangana has said that a Muslim woman can claim maintenance allowance using CrPC 125, Muslim Women (Protection of Rights on Divorce), and both major provisions.

Major provisions of the act

The provision in the act deals with the nature of the offense, penalty, and bail conditions. It has also welcomed some controversies, and critics have raised arguments on the basis of both morality and legality. Let us look at some of them. The act declares triple talaq as a cognizable offense. Indian penal system renders investigation agencies the power to arrest the accused without a warrant under cognizable offense. So, if the wife or relative with blood relation files a complaint against the husband, he will be arrested without rendering a warrant. If the accused is declared guilty, the act prescribes him upto 3 years of imprisonment.

He can access bail after getting the nod from the magistrate, but the magistrate has to hear the aggrieved woman before that. Reckoning the marital nature of the issue, the act classifies the offense as a compoundable offense. Thus, it provides a scope to settle the issue outside court. This is a win-win situation since courts in our country hoard huge backlogs of cases.

The act also mentions allowances and custody of child/children. The married woman is entitled to a reasonable amount as allowance, and this will be issued by the magistrate. Custody of child/children is also entitled to the married woman after the magistrate's deliberation, keeping in mind the best interests of child/children.

Critique

As said before, the act has received rebukes from different sections, including legislative experts, legal experts, politicians, and pious people, highlighting the vulnerabilities. The criticism is not only restricted to constitutionality or legitimacy; it also involves basic political science questions too. We shall look into them.

The initial question is, What constitutes a crime? They challenge by quoting John Stuart Mill and his "harm principle". The fundamental idea of the harm principle is your freedom ends where someone else's harm begins. The challengers claim that the harm here is not contagious and succumbs to the test of the harm principle.

Next one is pretty simple. Since instant triple talaq is invalid after the Supreme Court's verdict, and our system has contempt of court, what is the need for an additional criminal law? The penalty offered is countered. According to the act, the convicted is eligible for up to 3 years of imprisonment; however, the critics question the common sense behind this by emphasizing the penalties of crimes like outraging modesty of women, transmitting obscene content, assault against women, which is also the same. How can these crimes tantamount to triple talaq is the unanswered query.

The concept of Mens rea is also discussed by the dissenters. Mens rea means guilty intention. The intention behind a crime should be deliberate to be classified as a criminal crime. Here, just by saying talaq thrice, which has now turned into mere words, how can it be classified as a criminal offense?

Another critic is not uncommon and has been seen in many other acts also. Presumption of innocence and burden of proof is on accuses here the husband. The same point is raised against the Prevention of Money Laundering Act(PMLA), Unlawful Activities Prevention Act (UAPA), Foreign Exchange Management Act (FEMA). As per critics, the complexity of the act and punishments may force the husband to simply abandon the wife, similar to some Hindu husbands do. This can ruin the whole purpose of the bill and have greater socio-economic repercussions.

Conclusion

Triple Talaq is a social issue with wider implications. Faizan Mustafa, ex-vice chancellor of NALSAR, has rightly quoted the skirmishes between societal values and the legal domain. In a deeply rooted society like India, it is ambiguous to expect everyone to accept and adhere to rules and regulations in haste. It takes time, effort, and energy to make people believe and ensure their compliance.

The act has also bolstered talks for a uniform civil code. People favoring UCC showcase it as a panacea for multiple issues faced by women across the country. But it is easier said than done. In a pluralist and diverse country like ours, it is arduous to bring UCC functional. Yet, the recent judgment on allowances of Muslim women, which enables them to seek CrPC as a route, is in line with UCC.

There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice. These are the words of French historian cum political philosopher Montesquieu. There are zero numbers of people blatantly arguing with the government for bringing up with the law. It was essential since violations were happening even after court judgments. No way we can prevent menace without proper legislative measures. However, it is crucial to have introspection about the criminal nature and repercussions. Criticism from pioneers has to be seen through that lens. Government has to consult with policy builders, researchers, and other stakeholders in order to make the act more just. Setting up a commission also can be thought, considering the seriousness and implications of the issue and eventually bringing a comprehensive panacea.

References

Reseach gate- Instant triple talaq and the Muslim women (protection of rights on marriage) act, 2019: perspectives and counter-perspectives.

"Triple Talaq: A Victory for Muslim Women's Rights" by The Hindu (August 2017)

Kalindi Kokal, 'Living By Religion, Playing by Law: Early Glimpses of The Ban On Triple Talaq' (2022) 18(1) Socio-Legal Review 1

Youtube Byjus IAS - https://www.youtube.com/watch?v=oAvRAyteVlg&t=2487s