DAY 17
MUSLIM WOMEN PROTECTION OF RIGHTS ON MARRIAGE, 2019
After 1986 legislation which allowed Muslim women post-divorce maintenance, this law against triple divorce came after 33 long years. So many Muslim women in this span were divorced and legally abandoned with no provision for the future. It is due to the efforts of these women who came forward and shared their stories, that this law was possible. A special thanks to Shayra Banu, Afreen Rahman, Gulshan Parveen, Ishrat Jahan and Ateeqa Sabri for filing their petitions against this practice in the Supreme Court and a big shout out to all BMMA volunteers and victims of triple divorce to bravely come forward to abolish this heinous practice.
What does the law state?
• Any pronouncement of talaq by a husband by words, either spoken or written or in electronic form or in any other manner is void and illegal.
• Any husband who pronounces talaq upon his wife is punished with imprisonment for three years and a fine.
• Wife will received a subsistence allowance from her husband for her and the dependent children.
• Wife is entitled to custody of her minor children in the event of talaq
• The offence is cognizable if reported by the wife or her close relatives.
• The offense is compoundable at the instance of the wife.
• Bail to the offender husband to be given by magistrate only.
What was the role played by Muslim women which led to the enactment of the law
• BMMA from 2007 onwards demanded the comprehensive codification of the Muslim family law which would include making triple divorce, halala, polygamy and muta marriage, illegal.
• Many public meetings, public hearings, innumerable press conferences, studies, articles were published from 2007 onwards to highlight the plight of women troubled by this practice
• Multiple submissions were done by BMMA to the state and national governments to enact a legislation against the practice.
• Draft law was prepared by BMMA which included a major portion on divorce and related issues. This draft law was prepared after consulting thousands of Muslim women, lawyers and academics.
• BMMA files a PIL supported petitions filed by Shayra banu. Later Afreen Rahman, Ateeqa Sabri, Ishrat Jahan and Gulshan Parveen too filed a PIL in the SC against the practice of triple divorce
What are the milestones which led to the enactment of law?
• March 28, 2016: Central Government asks government to file report on “Women and the law: An assessment of family laws with focus on laws relating to marriage, divorce, custody, inheritance and succession”.
• February 16, 2017: Supreme Court forms five-judge constitutional bench to discuss challenges relating to triple talaq and nikah halala
• March 2017: All India Muslim Personal Law Board (AIMPLB) tells Supreme Court that Triple Talaq falls outside the jurisdiction of the judiciary.
• May 18, 2017: Supreme Court reserves verdict on appeals questioning constitutional validity of instant Triple Talaq.
• August 22, 2017: Supreme Court declares practice of Triple Talaq illegal. Asks Centre to frame a law.
• December 2017: Lok Sabha passes Muslim Women (Protection of Rights on Marriage) Bill, 2017
• August 9, 2018: Central government clears amendments to Triple Talaq bill.
• August 10, 2018: The bill is tabled in Rajya Sabha. There is no consensus. Passage of bill gets postponed till winter session
• September 19, 2018: Cabinet clears ordinance. Triple Talaq becomes punishable offence with a three year jail term.
• December 31, 2018: Opposition demands scrutiny of the bill by the select panel in Rajya Sabha
• June 20, 2019: President Kovind urges political parties to clear Triple Talaq Bill during his address to joint session of Parliament.
• June 20, 2019: Government tables The Muslim Women (Protection of Rights on Marriage) Bill, 2019 in Rajya Sabha.
• June 21, 2019: Government tables The Muslim Women (Protection of Rights on Marriage) Bill, 2019 in Lok Sabha.
• July 25, 2019: Lok Sabha passes triple talaq bill amid walkout by the Opposition.
• July 30, 2019: Rajya Sabha passes triple talaq bill.
There was a SC judgment against triple divorce in 2002, was that not enough?
It is important to distinguish between judgement and legislation. A judgment is given by the courts when a petitioner approaches them. There is also no enforcement mechanism of a judgment. The judgment gives a direction, a way out. If judgments were enough we would not need the parliament. And if 2002 judgment was enough, why did we have so many men continuing to practice triple divorce with impunity? Why were they not punished under the 2002 judgment? To enforce a judgment it needs to be converted into a law which means it has to have the mandate of the elected representatives of the country. Parliament is supreme in our country because it reflects the mandate of the people who elect them. When Parliament enacts a law it becomes the job of the executive to enforce it across the country. There is a reason why we have three arms of governance; the legislature, executive and the judiciary.
Was criminalisation necessary? Are other personal law violations criminalised?
• All other violations of civil law invite penalties.
• For instance, non-payment of maintenance invites Cr.PC 125 invites penalty and imprisonment.
• There is penalty and imprisonment for violation of the Prevention of Child Marriage Act, PCMA, not just for the adult male but also for his and her parents and guardians and for those solemnising this marriage.
• Under POCSO spouse of a person below the age of 18 years can be prosecuted. Irrespective of whether the marriage has been contracted voluntarily, a person having sexual contact with a person under 18 years can be punished. Further, it is now mandatory for those who have information about the commission of a sexual offence to report it to the local police.
• Dowry having a strong cultural base and considered a tradition has been penalised long back in 1961. It is also punishable by penalty and imprisonment.
• Polygamy under 494 IPC is also a crime with seven years imprisonment and fine.
• Many decades back sati was abolished although it was considered a part of history and tradition
• Widow remarriage had to allowed through a legislation because it was also a tradition that widows cannot remarry.
What was the amended version suggested by BMMA?
• In the amended version which I will share in the coming days, BMMA had suggested:
• 4 methods of divorce; talaak, khula, mubarah and faskh-e-nikaah were incorporated but the process of divorce is to be the Ahsan method of divorce
• Divorce process if the divorce happens outside the formal court
• Divorce process if the divorce happens through the court
• Mandatory recorded arbitration of minimum 3 months
• Settling of all issues like maintenance, custody of children, matrimonial property, alimony, jewellery and other objects to be done before final divorce
• Halala practice to be legally abolished since it is linked to triple divorce
• Muta marriage which has a built in divorce must also be legally abolished
Does the law not discriminate against men of other religions since they don’t face criminalisation charges for abandoning their wives?
There is a need to make a differentiation between divorce and abandonment. A unilateral divorce pronounced/read/written/whatapped/emailed/smsed thrice had the legal effect of divorce. The marriage was over and done with, with these three words. A woman abandoned/deserted has her marriage still intact. Her rights over her husband continue. She can demand maintenance for herself and her child. There is a systematic campaign by secular and feminist groups to obfuscate the difference between desertion and divorce. Even if we assume that unilateral divorce is desertion then let that desertion be criminalised. Why is there a tendency to bring in 10 other issues when Muslim women’s issues are discussed? Why is there a tendency to confuse and obfuscate different and disparate issues? Why should Muslim women bear the burden to sorting every angle, legal and otherwise? Why should Muslim women’s demand be not a stand-alone issue? What this whataboutery every time her demands are articulated?
It has been one and half years since the passage of this law? What is the situation at the ground?
The law is not perfect as we saw earlier. A lot needed to be added to the law to make it comprehensive. But nonetheless, it brought in a much needed break in the way men were divorcing their wives. The three second divorce process came to an end with very few cases reported after the law. The credit for it goes to the men in the community for having understood that this method of divorce will not work anymore.
But the biggest issue is its poor implementation by the police and then the courts. The police as with other laws are very reluctant to file an FIR and this is inspite of the presence of community women leaders. It has taken months for some of the victims to even file an FIR and it has taken some more time for the case to come up before the magistrate. The delayed, tedious, expensive and formal court systems and the corrupt and inefficient police have not helped women access justice.
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