ASSIGNMENT

ON

Muslim Women (Protection of Rights on Marriage)

Act, 2019

SUBMITTED TO
GOVERNMENT LAW COLLEGE, KOZHIKODE

PREPARED AND SUBMITTED BY

HARIPRIYA T P
3 YEAR LLB
BATCH A
ROLL NO: 63
 INTRODUCTION
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 vigour, sexual harassment, attempted
hanging, psychological abuse which includes treating with disrespect, treating with utter
disgrace, control over conduct and speech.

Though there are anomalies in all cultures and religions regarding the gender inequality
marital atrocity 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 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. This Muslim Women
(Protection of Rights on Marriage) Act has been promulgated by Parliament of India in the
year 2019. The Act became an Act after being passed by both the Houses of Parliament on
30th July 2019 and subsequently receiving the President’s nod. This Act, also commonly
called as the ‘Triple Talaq Bill’, is one of the historic decisions safeguarding Muslim women’s
Fundamental Rights and shielding them against arbitrary religious practices. An Act to protect
the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their
husbands and to provide for matters connected therewith or incidental thereto. This statute
has 3 Chapters and 8 Sections. The Chapter includes Declaration of Talaq to be Void and
Illegal, Protection of Rights of Married Muslim Women.
Mohd. Ahmed Khan v. Shah Bano Begum
Shah Bano was 62-year-old when her well-known lawyer husband threw her out of their
Indore house. The mother of five could have been yet another story of an oppressed woman
subjected to humiliation by her husband. Instead, Bano decided to fight her husband, the
male-dominated society and changed the system forever. As many celebrate the landmark
Triple Talaq judgment, here's a look back at the woman and her case that proved to be a
milestone in the fight for rights of Muslim women.

Mohammed Ahmad Khan divorces Shah Bano after his second marriage and refuses to
provide her promised maintenance of Rs 200. Bano files a plea in a local court against her
husband under Section 125 (Code of Criminal Procedure) asking him to provide the money
for her and her children. Mohammed Ahmad Khan gives Shah Bano an irrevocable talaq and
says since she is not his wife under Islamic law, he is not obliged to pay her the maintenance.
Shah Bano wins maintenance case with the local court ordering Khan to provide her with
maintenance of Rs 25 per month. Shah Bano files another plea asking for a revised
maintenance. The Madhya Pradesh High Court gives order in her favour with a revised
maintenance of Rs 179.20. The two-judge Bench refers the Shah Bano case to a larger Bench.
In a landmark judgment, the Supreme Court rules in favour of Shah Bano and upholds the
decision by the High Court.

Muslim Women (Protection of Rights on Marriage)

Act, 2019
BACKGROUND

Shayara Bano case 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. 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 of the act defines those 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. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a
Muslim man resulting in instant and irrevocable divorce. Talaq-e-biddat refers to the practice
under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting
by a Muslim man to his wife results in an instant and irrevocable divorce.

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.

Within the provisions of the Act, a complaint can be filed by either the woman herself (to
whom the divorce has been given) or any person related to that woman by blood or marriage.

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.

Key Provisions
➢ The Act makes all declaration of talaq, including in written or electronic form, to be
void (i.e., not enforceable in law) and illegal.
➢ The Act defines talaq as talaq-e-biddat or any other similar form of talaq
pronounced by a Muslim man resulting in instant and irrevocable divorce.
➢ The Act makes a declaration of talaq a cognizable offence, attracting up to three
years imprisonment with a fine.
➢ A cognizable offence is one for which a police officer may arrest an accused person
without warrant.
➢ The offence will be cognizable only if information relating to the offence is given by
married woman (against whom talaq has been declared), or any person related to
her by blood or marriage.
➢ The Act provides that the Magistrate may grant bail to the accused.
➢ The bail may be granted only after hearing the woman (against whom talaq has been
pronounced), and if the Magistrate is satisfied that there are reasonable grounds for
granting bail.
➢ The offence may be compounded (i.e., the parties may arrive at a compromise) by
the Magistrate upon the request of the woman (against whom talaq has been
declared).
➢ The terms and conditions of the compounding of the offence will be determined by
the Magistrate.
➢ A Muslim woman against whom talaq has been declared, is entitled to
seek subsistence allowance from her husband for herself and for her dependent
children. The amount of the allowance will be determined by the Magistrate.
➢ Custody: A Muslim woman against whom such talaq has been declared, is entitled
to seek custody of her minor children. The manner of custody will be determined
by the Magistrate.
Contentious issues surrounding the Act
After the Bill became an Act and was operational, it was criticised by some of the opposition
parties, Muslim leaders and clerics on various grounds. One of the issues raised was regarding
the punishment accorded to Muslim men, calling it severe and apprehensions were raised
that it might be misused by police and other agencies to target Muslim community. They also
raised an issue saying ‘criminalizing’ divorce is ‘unusual’. The others pointed that this law
might marginalise the Muslim women further because now she will be forced to stay in an
unhappy marriage which will be verbally and emotionally torturing.
The Bill was being opposed on the grounds that the proposed law could be misused to
harass Muslim men as it gives police the authority to arrest the offender without
requiring a warrant.
However, in order to check the misuse of the newly promulgated legislation, it is inbuilt
into the legislation that the police can only take cognisance if the complaint is filed by
the aggrieved woman or any of her relation by blood or marriage. Moreover, the law also
provides for bail by a magistrate but only after hearing the aggrieved woman.

CONCLUSION

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.
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.

This Act is not criminalising ‘divorce’ but criminalizing ‘instant triple talaq’ practices which
are known in history for making Muslim women vulnerable and putting their lives in jeopardy.
In clear words, this legislation clearly prohibits ‘Talaq-E-Biddat’ which is an unfair practice
giving supreme power of dominance to Muslim men against their wives.

One needs to understand the grave consequences of ‘Triple Talaq’ for women and how it
marginalises their very existence within the society. Within seconds, the Muslim woman is
devoid of any rights, claim and association with the man, leave aside the ‘emotional’ and
‘vulnerable’ side of it. The severity of such a situation has probably pushed many Islamic
countries to abandon this and if now India has taken this initiative, it should be welcomed
with open hands rather than criticised with closed minds.