MUSLIM WOMEN’S MARRIAGE RIGHTS

This blog is created by Abhinab Mukherjee, a 2021 law graduate from University of Calcutta.

Introduction

The Muslim Women (Protection of Rights on Marriage) Act, 2019 is a revolutionary step towards ensuring gender equality and justice for Muslim women in India. This act has brought about significant changes in how Muslim marriages are dissolved and has provided women with more protection and rights.

Before the enactment of this Act, Muslim women in India had little to no legal recourse in cases of divorce. The practice of instant triple talaq, in which a Muslim man could divorce his wife by simply uttering the word ‘talaq’ thrice, was prevalent in the community. This act left women vulnerable and at the mercy of their husbands, often without any financial or emotional support.

The Muslim Women (Protection of Rights on Marriage) Act 2019 has changed everything. It has made instant triple talaq illegal and punishable, with a jail term of up to three years. It has also given women the right to seek maintenance from their husbands after divorce and to have custody of their children.

The Act has also made it mandatory for the husband to provide for the basic needs of his wife and children during the marriage and after the divorce. This Act has significantly changed the power dynamic between husbands and wives in Muslim marriages and has given women the confidence to stand up for their rights.

However, the Act has also been met with criticism from some quarters. Some argue that it infringes upon the personal laws and customs of the Muslim community and that it is an attempt to impose Hindu values on Muslim women. Others say it does not go far enough and should have provided more comprehensive rights and protections for Muslim women.

Despite these criticisms, the Muslim Women (Protection of Rights on Marriage) Act 2019 remains a landmark legislation that has brought about significant changes in the lives of Muslim women in India. It has given them the right to live with dignity and respect and has ensured that their voices are heard in matters of divorce and marriage. As the country continues towards greater gender equality and justice, the act will undoubtedly play a crucial role in shaping the future of Muslim women in India.

The Legislative Journey of The Act

The legislative history of the Muslim Women (Protection of Rights on Marriage) Act, 2019 dates back several years. The issue of instant triple talaq and the need for more excellent protection for Muslim women in marriage and divorce has been a matter of public debate and concern for a long time.

In 2017, the Supreme Court of India delivered a landmark judgment in the case of Shayara Bano v. Union of India, in which it declared instant triple talaq unconstitutional and a violation of the fundamental rights of Muslim women. This judgment was widely hailed as a significant victory for women’s rights in India, and it set the stage for introducing new legislation to address the issue.

In December 2017, the government introduced the Muslim Women (Protection of Rights on Marriage) Bill, 2017 in the Lok Sabha, the lower house of the Indian Parliament. The Bill sought to criminalize instant triple talaq and provide for other measures to protect Muslim women’s rights in marriage and divorce.

The Bill was referred to a parliamentary committee for further review and consultation, and after several months of debate and discussion, the committee submitted its report in August 2018. The report recommended several changes to the Bill, including removing a provision that would have made instant triple talaq a non-bailable offense.

In July 2019, the Bill was reintroduced in the Lok Sabha as the Muslim Women (Protection of Rights on Marriage) Bill, 2019, with the changes recommended by the parliamentary committee incorporated into the text. The Lok Sabha and the Rajya Sabha, the upper house of the Indian Parliament, passed the Bill. It received presidential assent on August 1, 2019, becoming the Muslim Women (Protection of Rights on Marriage) Act 2019.

Triple Talaq Fundamental Violation

The Supreme Court of India, in its landmark judgment on August 22, 2017, declared that the practice of instant triple talaq (talaq-e-biddat) is unconstitutional and violates the fundamental rights of Muslim women.

The court held that triple talaq violated the following fundamental rights:

• Right to Equality: The court held that triple talaq is discriminatory and arbitrary and violates the right to equality guaranteed under Article 14 of the Constitution of India.
• Right to Life and Personal Liberty: The court held that triple talaq violates the right to life and personal liberty guaranteed under Article 21 of the Constitution of India, as it allows a Muslim husband to arbitrarily and unilaterally terminate the marriage without any valid reason, leaving the wife without any legal recourse.
• Right to Freedom of Religion: The court clarified that the practice of triple talaq is not an essential part of Islam and does not enjoy the protection of the right to freedom of religion guaranteed under Article 25 of the Constitution of India.

The Supreme Court held that triple talaq violates the fundamental rights of Muslim women, including the right to equality, the right to life and personal liberty, and the right to freedom of religion.

Need and Significant of The Act

The Act is a significant piece of legislation that addresses some of the longstanding issues Muslim women face in India regarding marriage and divorce. Here are some of the key reasons why the Act is needed and its significance:

1. Criminalization of Instant Triple Talaq: One of the main objectives of the act is to criminalize the practice of instant triple talaq, which is a form of divorce that allows a Muslim man to instantly divorce his wife by uttering the word “talaq” three times. This practice has been widely criticized for leaving Muslim women vulnerable to arbitrary and unilateral divorce without legal recourse or financial support. Making instant triple talaq a criminal offense seeks to provide Muslim women with more excellent legal protection and deter men from unilaterally using this practice to end their marriages.
2. Protection of Women’s Rights: The Act also seeks to protect Muslim women’s rights in marriage and divorce by providing for the payment of maintenance to divorced women and for custody of children to be awarded to the mother. This Act is significant as Muslim women have traditionally faced difficulties obtaining maintenance and custody of children in divorce cases, which has often left them financially and emotionally vulnerable. The Act seeks to ensure that Muslim women are not left without support during a marital breakdown.
3. Empowerment of Muslim Women: By giving Muslim women greater legal recourse and protection against arbitrary and unilateral divorce by their husbands, the Act seeks to empower them to assert their rights and take control of their lives. This Act is significant as Muslim women have historically faced numerous obstacles in maintaining their rights and achieving gender equality, including cultural and religious norms that often prioritize men over women.
4. Upholding the Constitution: The Act is also significant as it supports the principles of gender equality and non-discrimination enshrined in the Indian Constitution. The Act recognizes the right of Muslim women to equality and dignity and seeks to ensure that they are not subjected to discriminatory practices in marriage and divorce. This Act is in line with the Indian government’s commitment to upholding the constitutional rights of all citizens, regardless of their religion or gender.
5. International Obligations: The Act also fulfills India’s international obligations to protect women’s rights. India is a signatory to several international conventions and agreements that require it to take measures to protect women’s rights, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Universal Declaration of Human Rights. The act is a significant step towards fulfilling these obligations and protecting Muslim women’s rights in India.

Criminalizing instant triple talaq, protecting women’s rights, empowering Muslim women, upholding the Constitution, and fulfilling international obligations represents a significant step toward achieving gender equality and justice for Muslim women in India.

Complaints and Limitations  

Despite its many positive aspects, the act has faced criticism and limitations. Here are some of the key complaints and limitations:

1. Criminalization of Instant Triple Talaq: While the criminalization of instant triple talaq has been widely welcomed, some critics have argued that the act does not protect Muslim women’s rights. They say the act should have also addressed other forms of arbitrary and unilateral divorce, such as verbal or written talaq, which are still allowed under Muslim personal law. This act has led to concerns that the act may not fully address the underlying problem of gender discrimination and patriarchal norms within Muslim society.
2. The burden of Proof: One of the limitations of the act is that it places the burden of proof on the victim of instant triple talaq rather than on the accused. This limitation means that the victim has to prove in court that the talaq was given without reasonable cause, which can be challenging to do in practice. This has led to concerns that the act may not be effective in deterring the practice of instant triple talaq and protecting Muslim women’s rights.
3. Criminalization of a Civil Issue: Another criticism of the act is that it criminalizes a civil issue, which could have unintended consequences. Critics argue that criminalizing instant triple talaq could lead to the imprisonment of Muslim men, who may be unable to pay the fines or compensation required under the act. This could also lead to further breakdown in marital relationships and stigmatization and discrimination against Muslim men.
4. Exclusion of Other Personal Laws: The Act applies only to Muslim women and does not address the issues faced by women from other religious communities. This has led to concerns that the act may perpetuate the unequal treatment of women under different personal laws and may not be effective in promoting gender equality across all communities.
5. Implementation Challenges: Finally, concerns about the act’s implementation may need to be addressed given the complex legal and social contexts in which it will operate. There are concerns that the act may be subject to misinterpretation, misuse, or non-implementation, which could limit its impact on the ground.

Critics have raised concerns about the act’s narrow scope, the burden of proof, criminalization of a civil issue, exclusion of other personal laws, and implementation challenges. These issues must be addressed to ensure that the act effectively promotes gender equality and justice for Muslim women.

Addressing Concerns for Gender Equality and Justice

Although the Muslim Women (Protection of Rights on Marriage) Act 2019 is a positive step towards gender equality and justice for Muslim women in India, there are some criticisms. Some conservative Muslim groups oppose the act, claiming it interferes with their religious affairs and is not in line with Islamic law. They argue that instant triple talaq is a matter of personal law and should be left to the community to decide. 

The criminalization of instant triple talaq has also been criticized by some, who argue that it could lead to the misuse of the law, with Muslim men being falsely accused of instant triple talaq. They have also argued that the act does not provide adequate safeguards to prevent misuse. Another criticism of the act is its limited scope, as it only addresses the issue of instant triple talaq and not other problems Muslim women face, such as polygamy and nikah halala. Some argue that a more comprehensive law is needed to address all issues Muslim women face. 

Additionally, some Muslim women may not be aware of the provisions of the act and their rights under the act due to limited outreach and awareness programs conducted by the government to educate them about their rights. Overall, the government needs to address these criticisms and ensure that the act is implemented to protect Muslim women’s rights while also addressing the concerns of those who are not happy with the act.

Conclusion

In conclusion, the Muslim Women (Protection of Rights on Marriage) Act 2019 represents a significant milestone in the fight for gender equality and justice for Muslim women in India. The act seeks to protect Muslim women from arbitrary and unilateral divorce and provide them with the legal recourse to seek redress in case of such a violation.

Despite its limitations and criticisms, the act is a step in the right direction toward ensuring that Muslim women can enjoy their fundamental rights and freedoms without fear of discrimination or abuse. The act will also be important in challenging patriarchal norms and promoting gender equality within Muslim society.

As the Indian social activist and lawyer Indira Jaising once said, “The passage of the Muslim Women (Protection of Rights on Marriage) Bill is a welcome development and a victory for Muslim women who have long suffered the injustice of triple talaq. It is a step towards gender justice and equality in India.” This sentiment is echoed by many who see the act as a positive step towards promoting gender equality and justice for all women in India, regardless of their religious affiliation.