Effectiveness Of Muslim Women (protection Of Rights On Marriage) Act 2019
The objective of this research paper is to helps to understand the complexity of Muslim Women Act 2019. This research article aimed to examine the effectiveness of the act in achieving its stated objectives and contributing to the protection of Muslim women’s rights in India. This research paper has also contributed to understand the different Muslim Marriage Laws in India. This research paper includes several aspects of Muslim Women Laws, after effects of The Muslim Women (Protection of Rights on Marriage) Act, 2019, it also consist of modes of talaq and suggestions for the upliftment of Muslim Women.
Islamic is divided into two groups: Shia Muslims and Sunni Muslims. The difference between both are that sunni muslims believe that the prophet did not explicitly declare a successor. Shia muslims believe that the prophet publicly designated his cousin and son-in-law, Hazrat Ali (peace be upon him), as the first in a line of hereditary imams from the prophet’s family to lead the community after him. There are also differences between the marriage that takes place in islamic in the sunni law, only permanent form of marriage (Nikah) is recognized, but in shia, both permanent (Nikah) and temporary (Muta) are valid. Nikah means according to islamic law, marriage or more specifically, the marriage contract is called ‘ Nikah’ and muta means a temporary marriage that is contracted for a limited or fixed period and involves the payment of money to the female partner. Sunni marriage requires two male or one male and two female witnesses to be valid. There are no such requirements of witnesses for shias. Essentials characters for a valid muslim marriage are :
- Proposal and Acceptance
- Competency of Parties
- Free Consent
- Free From Legal Disability
Over the years, Muslim women in India have complained of living in perpetual fear of being thrown out of their matrimonial homes in a matter of seconds because a Muslim man, if he chooses, can end years of marriage just by saying the word “talaq” (divorce) three times. In Shayara Bano and others v. Union of India, the 35-year-old mother-of-two approached the Supreme Court seeking justice. Shayara Bano’s petition, filed in February 2016, said she was visiting her parents’ home in the northern state of Uttarakhand for medical treatment when she received her so-called talaqnama – a letter from her husband telling her that he was divorcing her. Her attempts to reach her husband of 15 years, who lives in the city of Allahabad, were unsuccessful. She was also denied access to her children. In her petition, she demanded a total ban on the practice saying it allowed Muslim men to treat their wives like “chattels”. She also asked the court to outlaw halala (where a divorced woman has to marry another man and consummate her marriage in order to go back to her former husband) and polygamy (Muslims in India are allowed to take four wives). These practices were “illegal, unconstitutional, discriminatory and against the modern principles of gender justice”, she said. Court order decided that instant divorce is no longer just sinful, it’s also illegal. In 2007, the organization Bharatiya Muslim Mahila Andolan (BMMA – Indian Muslim Women’s Movement) started compiling a list of women facing instant divorce and polygamy. “We did a survey of 4,710 women and of the 525 who were divorced, 414 [or 78%] had been divorced through instant triple talaq” says Zakia Soman, one of the founder members of the BMMA. The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on June 21, 2019. The Bill makes all declarations of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal. It defines talaq as talaq-e-bidat 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 muslim man to his wife results in an instant and irrevocable divorce.
HISTORICAL BACKGROUND Of ACTS RELATED TO MUSLIM LAWS FOR MARRIAGE
THE DISSOLUTION OF MUSLIM MARRIAGE ACT,1939 – An act to consolidate and clarify the provisions of muslim law relating to suits for dissolution of marriage by women married under muslim law and to remove doubts as to the effect of the renunciation of islam by a married muslim woman on her marriage tie. Dissolution of marriage can be done by three methods i) By the death of the parties to the marriage ii) By the act of parties iii) By the act of judicial procedure. Dissolution of marriage can also be done by the mutual consent of parties.
- ABDUL ZALIL AHMED V. MUSTT. MARINA BEGUM
In this case, an application of divorce was filed by a woman under The Dissolution of Muslim Marriage Act,1939. The ground stated in the application was that the husband failed to perform his marital obligation without any reasonable cause and treated her with cruelty which made her life miserable (physical torture and ill treatment). These were the grounds mentioned in section 2 of the same act. And hence a joint application was filed by both the wife and the husband requesting the court to pass a decree of divorce. Hence, the learned Family Court passed an order in the favour of the applicant for the same and under the grounds mentioned in section 2
ABDUL AZEEM V. FAHIMUNNISA BEGUM
The husband was sued by the wife for failing to maintain her for a period of two years. She was married in 1952 and went to her parents house in 1955. Later on, her husband married again. The suit failed on this basis as polygamy was allowed in Mohammedan Law and there were no other grounds. .
Section (2) of The Dissolution of Muslim Marriage Act 1939
MMD. ABDUL ZALIL AHMED V. MUSTT. MARINA BEGUM II (1999) DMC 172
ABDUL AZEEM V. FAHIMUNNISA BEGUM AIR 1969 Kant 226, AIR 1969 Mys 226
MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) 1986 –
An act to protect the rights of muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. This act was enacted on 19th of May 1986. The Muslim Women (Protection of Rights on Divorce) Act was an act passed by the Parliament of India in 1986.
KARIM ABDUL REHMAN SHAIKH V SHEHNAZ KARIM SHAIKH & Others
In this case the Supreme Court held that divorced wife is able to maintain herself the husband’s liability ceases with the expiration of the period of iddat, but if she is unable to maintain herself after the period of iddat she is entitled to have recourse if she has not remarried.
Dr. ABDUL RASHID V Mst. FARID
A Muslim woman named filed an application under Section 125, Cr.P.C. against her husband on 16-6-1980 before Judicial Magistrate, First Class, Sheopur. That application was for maintenance of herself and her minor daughter. During the pendency of that application, the husband gave Talak to his wife. That Talak became operative at least from 30-7-1985, when the husband filed an application in the Magistrate’s Court informing his wife thereby that he had given Talak to her. This legal position under Mohammedan Law could not be contested and attempt to contest that position was given up by Farida’s counsel in this court.
EFFECTIVENESS OF MUSLIM WOMEN ( PROTECTION OF RIGHTS ON MARRIAGE ) ACT 2019
Muslim Women ( Protection of Rights on Marriage) Act 2019 :
The Triple Talaq Act, also known as the Marriage Rights Protection Act, was approved by the Indian Parliament on July 30, 2019, making triple talaq an offense right away. Triple talaq is now a recognized and unlawful conduct thanks to the law. A Muslim can legally divorce his wife by speaking the Arabic word for divorce, talaq, three times. This process is known as talaq-e-biddat or triple talaq. The announcement may be given orally, in writing, or, more lately, electronically through the use of social media, SMS, email, or other electronic communication channels. The lady was not required to be present at the announcement of the divorce, and the man was not required to provide a reason.
WHAT IS TRIPLE TALAQ ?
Talaq-e-Biddat or Triple Talaq is a form of divorce that was practiced in Islam, whereby a Muslim man could divorce his wife by pronouncing talaq three times. The man need not cite any reason for the divorce and the wife need not be present at the time of pronouncement of talaq. Several instances from across the country were reported through the media where Muslim men granted instant Triple Talaq to their wives on very flimsy grounds like for becoming overweight or for not cooking the food properly or for getting up late in the morning. In addition, there were many more cases that never came to light, but which adversely affected the lives of Muslim women.
SUPREME COURT VERDICT :
Supreme Court found that the said practice of divorce to be manifestly arbitrary, in the sense
that, the marital tie can be broken capriciously and whimsically by a Muslim husband without
any attempt to reconcile to save the marriage. Supreme Court, in a majority judgment rendered on 22nd August, 2017, set aside the practice of divorce by pronouncing instant Triple Talaq as violative of article 14 of the Constitution. Supreme Court judgment vindicated the position taken by the Government that talaq-e-biddat is against constitutional morality, dignity of women and the principles of gender equality, as also against gender equity guaranteed under the Constitution.
EFFECT OF MUSLIM WOMEN ( PROTECTION OF RIGHTS ON MARRIAGE ) ACT 2019
The law came into effect on August 1, 2019 and banned instant divorce in muslim, known as triple talaq. After the implementation of the act there was a difference in the divorce cases in India. The law to criminalise triple talaq has reduced such instances by 80 per cent in the country, claimed Minister for Minority Affairs Mukhtar Abbas Naqvi. In Uttar Pradesh, before the law was enacted there were over 63,000 cases were registered but after the enactment of the law, the cases dropped to 221 cases. Bihar registered 49 cases after enactment of the Muslim Women (Protection Of Rights On Marriage) Act this data is the representation of after two years of implementing the act.
PUNISHMENT FOR PRONOUNCING TALAQ
Any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.The offence will be cognizable only if information relating to the offence is given by (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage. The Bill provides that the Magistrate may grant bail to the accused 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.
IN INDIA THE MUSLIMS ARE GOVERNED BY –
The Muslim Personal Law (Shariat) Application Act, 1937: This law deals with marriage, succession, inheritance and charities among Muslims
The Dissolution of Muslim Marriages Act, 1939: This law deals with the circumstances in which Muslim women can obtain divorce.
The Muslim Women (Protection of Rights on Divorce) Act, 1986: This law deals with the rights of Muslim women who have been divorced by their husbands and to provide for matters connected therewith
MODES OF TALAQ
Section 311 of Principles of Mahomedan Law deals with different modes of talaq – A talaq may be effected in any of the following ways –
Talaq Ahsan – This consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat.
Talaq Hasan – This consist of three pronouncement made during successive tuhrs, no intercourse taking place during any of the three tuhrs.
Talaq al biddat – This consists of three pronouncements made during a single tuhr either in one sentence or a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage.
Muslim Women (Protection of Rights in Marriage Act ) 2019 is the leading step taken by the government to save and give a better life for a muslim women. While the act was implemented it also had negative reviews and people were even against it. But by this act there was a vast decrease in cases of divorce. Women should support each other by forming organization and solving the issues on their own.
Islam has raised women’s status in the society by issuing many laws to protect her and give her an honorable and dignified life. According to Muslim Personal Law, triple talaq is invalid and unlawful from the very onset. In Bangladesh and Pakistan, Triple Talaq is null and void. No talaq can be given at the state of anger. Basically, it’s an instrument for oppression of helpless women. Triple Talaq hardly happens in well to do families. We welcome the Triple Talaq bill (Now an Act) as it empowers women and male autocracy is curtained. The Muslim women finally asserts themselves to seek their space in a male-dominated society. The role of the Judicial Magistrate is of utmost importance as a lot of the Act rests on his discretion, therefore, certain guiding factors must be laid down. Hopefully the act via judicial precedents, will provide more clarity to its applications, remedies and the unwarranted situations that may arise due to the strict nature of the legislation.
Shayara Bano and others v. Union of India (2017) 9 SCC 1
The Muslim Women (Protection of Rights on Divorce) Act 1986
Dr. ABDUL RASHID V Mst. FARID 1994 CriLJ 2336
KARIM ABDUL REHMAN SHAIKH V SHEHNAZ KARIM SHAIKH & Others 2000 (5) BomCR 758, 2000
CriLJ 3560, II (2000) DMC 634
Section 125 in The Code Of Criminal Procedure
Section 311 of Principles of Mahomedan Law