India’s legislature has
criminalized instant divorce (triple ṭalāq) through the enactment of the Muslim Women
(Protection of Rights on Marriage) Act 2019. This piece of legislation is a
result of the Supreme Court judgment in the Shayara Bano case two
years ago. In this judgment, the Court declared the practice of triple ṭalāq a violation of Muslim women’s constitutional
rights and gave the legislature six
months “to consider legislation” regarding triple ṭalāq.
The stated objective of the Act,
as its name suggests, is to protect the rights of married Muslim women by safeguarding
them from being instantly divorced by their husbands. The Act does so by
declaring triple ṭalāq to be “void and illegal” and subjecting the
offender husbands to the imprisonment of three years and an unspecified fine. The Act ensures that the
aggrieved wife’s right to maintenance and custody of minor children is
protected. She is entitled to a “subsistence allowance” from her husband for
herself and for her children, and she is given the custody of her minor
children.
For the Act’s critics, rather than
protecting the rights of married women, the Act is intended to prosecute Muslim
men. In response to this criticism, the Act’s proponents note that the Act provides the
following three safeguards against malicious prosecution:
- The offence is cognizable only if information is given to the police by: (i) the married woman upon whom triple ṭalāq is pronounced, or (ii) any person related to her by blood or marriage;
- The offence is non-bailable, but the Magistrate may grant bail if s/he is satisfied that there are reasonable grounds for granting bail after hearing the aggrieved woman;
- The offence may be compounded by the Magistrate upon the request of the aggrieved woman. This means that she is empowered to stop legal proceedings against her husband should she wish to settle the dispute outside of court. The terms and conditions of the compounding of the offence, however, will be determined by the Magistrate.
The efficacy of these safeguards to limit
the prosecution and incarceration of Muslim men will be tested in the near
future when the Act comes into force. The more important question to ask at
this stage is whether the Act indeed lives up to its name in protecting the
rights of married Muslim women? To the dismay of women’s rights activists, the
Act does not provide any new rights to Muslim women. They contend that the
so-called entitlements of aggrieved women to “subsistence
allowance” and “custody of children” provided
under the Act are already available under the laws of maintenance, custody, and
guardianship of children.
Ironic as it may sound, the Act is likely
to further jeopardize the rights of married Muslim women, who, if subjected to
triple ṭalāq, will be divorced religiously but remain married
legally. Far from enabling them to maintain an existing marriage or to end an unhappy
marriage and then to remarry and start a new family, women subjected to triple ṭalāq will be stuck in
“limping marriages.” They may be permanently
deserted by a husband who is no longer religiously married to them, or if they entered into a second marriage after triple ṭalāq,
they could be exposed to the punishment of
imprisonment of up to seven years for bigamy under section
494 of the Indian Penal Code 1860.
Meanwhile, their “husbands” would have the
freedom to enter into another marriage because of the permissibility of
polygamy for Muslim men in India. It is indeed
unfortunate that neither the Act nor other Indian legal provisions provide any
remedy against “limping marriages” to such “half married and half divorced”
Muslim women who are already marginalized in Indian society for their being “a
minority within a minority.”
It will, however, be an
exaggeration to pit uncodified and unofficial Shariʿa against state
enforced official law on the issue of triple ṭalāq. After all, Muslim
family law in India, known as Muslim Personal Law, is based on judicial
precedents of superior Indian Courts rather than classical fiqh book or fatāwā.
These courts have already settled the issue of triple ṭalāq by
formulating a number of conditions for its validity: a Muslim husband must have a “reasonable cause” to divorce
his wife; the divorce must be preceded
by reconciliation efforts by two arbiters each representing one party; and the
pronouncement of triple ṭalāq must also be properly evidenced in the
form of a formal declaration by the husband. (See Iqbal Bano v State of UP AIR 2007 SC 2215; Shamim Ara v State of UP AIR 2002 SC 3551). To effectively enforce these principles, the legislature
should have passed a procedural law to provide an institutional mechanism for
the process of reconciliation before divorce.
In view of this already existing
Indian law, the only contribution of the Act is that it penalizes the
pronouncement of triple ṭalāq to create a deterrence against its pronouncement.
But will the criminalization of triple ṭalāq save broken marriages by
protecting the marital rights of Muslim women? It is important to note that the
Act only criminalizes triple ṭalāq and not the ṭalāq itself. In
other words, a Muslim husband still enjoys his unfettered right to unilateral
no-fault divorce to end his marriage by pronouncing ṭalāq, which becomes
effective after his wife completes three menstrual cycles. Does Indian law
provide a similar unilateral right to no-fault divorce to Muslim women in order
to escape unhappy marriages? The straight forward answer is no. Both the Indian
judiciary and legislature have not yet given Muslim women this right, even though
their counterparts in a number of Muslim countries have acquired this right more
than five decades ago. In neighboring Bangladesh and Pakistan, Muslim women
have had this right since 1967 when the Supreme Court of Pakistan acknowledged
the no-fault based unilateral right of wives to divorce their husbands on the
basis of the principle of gender equality in Khurshid Bibi v Baboo Muhammad Amin PLD 1967 SC 97.
In conclusion, the Muslim Women (Protection of Rights on Marriage) Act 2019
should be called the Criminalization of Triple Ṭalāq Act 2019 because penalization of triple ṭalāq is the only contribution this Act makes to existing legal
provisions. The protection of the rights of married Muslim women, however, is
likely to take more time and legislative effort.
