Justice to the Muslim Women, Finally!

Er. Kunal Bharti,
Political Analyst

In a massive victory for PM Narendra Modi-led NDA government, the triple talaq bill has been passed by the Rajya Sabha. The bill makes instant triple talaq a criminal offence. The Bill will now go to President for his assent. Once the triple talaq bill gets assent of the President and notified by the government, it will replace the triple talaq ordinance promulgated last in February.THE TRIPLE TALAQ BILL IS A CLASSIC EXAMPLE OF EXECUTIVE-LEGISLATIVE-JUDICIAL COLLABORATION TOWARDS ENSURING SOCIAL JUSTICE. Now one can easily say "MODI HAI TOH MUMKIN HAI". The Important features of the Muslim Women (Protection of Rights on Marriage) Bill is that the bill makes the all declaration of triple talaq, including in written or electronic form to be void and illegal.

Triple Talaq, also known as talaq-e-biddat, instant divorce and talaq-e-mughallazah  is a form of Islamic divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence. It allows any Muslim man to legally divorce his wife by stating the word talaq  three times in oral, written, or more recently, electronic form. The use and status of triple talaq in India has been a subject of controversy and debate. Those questioning the practice have raised issues of justice, gender equality, human rights and secularism. The debate has involved the Government of India and the Supreme Court of India, and is connected to the debate about a uniform civil code i.e article 44 of the Indian constitution in India.

Declaration of Triple Talaq would be a cognizable offence, attracting up to three years’ imprisonment with a fine. The newly passed bill states that the offence will be cognizable only if information relating to offence is given by the married women or any person related to her by blood and marriage. Under the provisions of the bill, the Magistrate may grant bail to the accused only after hearing the woman and if the magistrate is satisfied that there are reasonable grounds for granting bail. The bill empowers the Magistrate to determine terms and conditions of the compounding. A Muslim Women, against whom the triple talaq is pronounced, is entitled to seek custody of her minor children and the manner of custody will be determined by the magistrate. She is also entitled to seek subsistence allowance from her husband for herself and her dependent children, the amount of which will be determined by magistrate.

In August 2017, the supreme court has invalidated the triple talaq practice by calling it arbitrary and unconstitutional. Supreme court termed instant talaq as "manifestly arbitrary " which makes it violative of article 14 i.e Right to Equality. If we look socially, the mere existence of this tradition for over 1400 years itself cannot make it legal. An individual's equality and dignity are placed at the mercy of their communities by this practice. Individual rights prevails over the community rights. Although triple talaq is against the basic tenets of the Kuran. Muslim personal law (shariat) application act 1937 had earlier put an end to unholy, oppressive and discriminatory customs and traditions in the Muslim community. Thus it was made clear that triple talaq was no longer a personal law and it comes under the scope of article 13 of the Indian constitution.

According to a study, 92% of Muslim women in India wanted the triple talaq to be banned. Many Islamic countries have outlawed this practice including Bangladesh, Pakistan and Indonesia. There is no reason for a democratic and secular India to continue this lopsided practice. The constitution of the country says that it shall strive to bring a uniform civil code for the entire country. Doing away with triple talaq will definitely be a step closer to the constitution-makers’ dream of having a uniform civil code for all citizens.

After passing of this bill, Muslim women also get equality with their better half. Triple talaq adversely impact rights of women to a life of dignity and is against constitutional principles such as gender equality, secularism, international laws, etc. The penal measure acts as a “necessary deterrent”. It significantly empowers Muslim women. The law is about justice and respect for women and is not about any religion or community. It protects the rights of Muslim women against arbitrary divorce. Instant triple talaq is viewed as sinful and improper by a large section of the community. Many people also fear that Muslim women will misuse the Act to take revenge on husbands. Rights protection laws cannot always be scrutinized over the issue of misuse. The same arguments were used to water down the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989 and other women's rights bills. The legislation would help in ensuring the larger Constitutional goals of gender justice and gender equality of married Muslim women and help sub serve their fundamental rights of non-discrimination and empowerment.

If we look back to history of free India in 1978, Shah Bano was divorced by her husband. The Supreme Court directed the husband to pay alimony to Shah Bano. However, the Rajiv Gandhi Government at the time, enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, that  nullified the court directive. It limited the maintenance payments to the iddat period [the three-month waiting period for divorce]. Ahmedabad Women Action Group (AWAG) case (1997), a Public Interest Litigation (PIL) was filed in the court to address various issues including Talaq. The court held that adjudication of personal law was beyond the jurisdiction of the court. Where as in Danial Latifi case (2001), Lawyer Danial Latifi challenged the constitutionality of the provisions of the Muslim Women’s Act, 1986, for providing maintenance only during the iddat period. The Supreme Court ruled that the husband would pay a reasonable and fair amount needed to maintain his ex-wife for the rest of her life. In Shamim Ara case (2002), Shamim Ara was divorced by her husband by triple talaq but she denied having been divorced. The court held that talaq must be pronounced in an Islamic way and it should be proven beyond doubt the events leading to talaq. The judgment invalidated the arbitrary talaq. It held that the wife was liable to receive maintenance from her husband. Even Law commission has released a consultation paper titled ‘Reform of family law’. The panel held that social evils such as the practise of triple talaq should not be allowed under religious customs. It said that weaker sections like women should not be discriminated in religious practices. It has recommended that men and women both should have same rights and grounds for divorce. It also called for penalizing any man resorting to unilateral divorce as per the provisions of Protection of Women from Domestic Violence Act, 2005.

Socially, now status of minority women's will be uplifted, as they will join the mainstream of the society. The other laws for women are Anti dowry Act 1961 and The Domestic Violence Act 2005. Now the newly passed bill will protect the rights of Muslim women. India is democratic country governed by constitution and therefore, Indian must enjoy their right irrespective of  their race or religion. Why a women suffer to maintain century old personal law. Now time has changed and so the thoughts, expression and feeling must be protected by law. Uniform civil code maintain in country. In eye of law every one is equal.