Muslim Women (Protection Of Rights On Marriage) Act, 2019: A Critical Analysis

KEY TAKEAWAYS

• The Delhi High Court has requested the Central Government's response to a review petition seeking to declare the Muslim husband's "assumed absolute discretion" to divorce his wife (talaq-ul-Sunnat) at any time without giving her any reason or advance notice as arbitrary, anti-Shariat, discriminatory, and unconstitutional.
• The current petition seeks clarification if talaq-ul-Sunnat will be covered by Section 2(c) of the Muslim Women Act of 2019, which criminalizes triple talaq.

INTRODUCTION

Divorce, often known as talaq, is a method of ending the marriage where both spouses have a legitimate marital right to it. Divorce has been accepted in all kinds of societies and religions, and the law has acknowledged it as well. However, it is still one of the most hated things allowed in many religions, because marriage is believed to be one of the holiest relationships among humankind, especially in a nation like India. Every religion has its divorce laws; some use legal procedures, while others have their religious rites and traditions for dissolving married relationships.

Speaking about the Muslim laws, Islam views marriage (Nikkah) as a secular relationship rather than a religious sacrament, divorce (Talaq) is something that humans can do because it is a contract that can be broken. The connection between spouses should ideally be built on love, according to the Quran, and if marital harmony cannot be reached, the Quran authorizes the pair to end it. Prophet Mohammad has remarked, "With Allah, the most odious of all things permitted is divorce," and towards the end of his life, he effectively prohibited men from divorcing without the intervention of an arbitrator or judge.This article examines the notion of divorce, as well as its place and meaning in Islam. The government of India's decision to make instant triple talaq illegal is a historic step in its capacity. Therefore, in this article, we'll look at whether the Muslim Women (Protection of Rights in Marriage) Act, 2019 will provide justice and equality.

CONCEPT OF TALAQ

Talaq is an Arabic word that translates to "untying or unravelling a knot." In a technical sense, it denotes freedom from the bond of marriage. The kinds of talaq offered by a husband are as follows:According to the Shariat, a husband can divorce his wife/wives in one of three ways: Talaq-e-Ahsan, Talaq-e-Hasan, or Talaq-e-Biddat. The Holy Quran recognizes Talaq-e-Ahsan and Talaq-e-Hasan, but Talaq-e-Biddat is said to be an invention of the Ummayad Kings for their evil intents. Further, the revocable divorce "Talaq-e-Sunnat" or "Talaq-ul-Raje" can be pronounced in Hasan or Ahsan forms. To elaborate on the types;

1. Talaq-e-Ahsan - It is the ‘most suitable' form of talaq, in which the husband declares divorce in a single sentence - "I have divorced thee" during the period of purity followed by no revocation by husband for three successive periods of purity. The following formalities must be completed on this form:

a) During the Tuhr of the wife, the husband must issue a single Talaq proclamation. The period of wife's parity, or the time between two menstruations, is known as tuhr. As a result, the Tuhr period is the time when cohabitation is conceivable. However, if a woman does not have menstruation, whether owing to age or pregnancy, a Talaq against her might be issued at any time.

b) Following this single proclamation, the woman must follow an Iddat of three-monthly courses. If she is pregnant at the time of the pronouncement, the Iddat continues until the kid is delivered. There shall be no revocation of Talaq by the husband throughout the term of Iddat.

2. Talaq Hasan - This Talaq is also considered to be the correct and acceptable form of Talaq. There is a revocation provision in this form as well. However, it is not the greatest way because the evil word Talaq must be spoken three times in the next three successive tuhrs. The following are the formalities that must be completed to submit this form:

(a) During the 'Tuhr period, the spouse must make a single Talaq statement.

(b) For the second time in the Tuhr, there is a single pronouncement. It's worth noting that the spouse has the power to cancel the first and second announcements. If he does so, either explicitly or by resuming conjugal relations, the Talaq's terms are rendered ineffective, as if no Talaq was ever made.

(c) However, if the first or second declarations are not revoked, the husband must make the third declaration in the third period of purity (Tuhr). The Talaq becomes irreversible and the marriage dissolves as soon as this third statement is made, and the wife must observe the requisite Iddat.

3. Talaq-Ul-Biddat- Triple-Talaq, also known as Talaq-Ul-Biddat, grants a man the right to divorce his wife whenever he sees fit, and the divorce becomes void and irreversible. This not only infringes on Muslim women's rights but also casts them as inferior citizens in the eyes of men and society because what triple-Talaq concludes is that it is based on men's wish, as the majority of them believe that they are superior to the Muslim women. All religious activities are indeed holy, and no one has the authority to interfere with them.But many Muslim men started abusing this practice, which harms their wives' lives. It cannot be believed that religion has the authority to take away a person's basic human rights and natural rights, as this practice does, and the most barbaric aspect of this type of divorce is that it can be completed even if the wife is not aware of the divorce.

Therefore, in a recent historic ruling in the case of Shayara Bano Vs. Union of India delivered on August 22, 2017, the Hon'ble Supreme Court of India struck down the practice of Talaq-e-Biddat or "Triple Talaq" with a 3:2 majority ratio. The judgment also ordered the Union of India's government to enact suitable legislation to regularize divorce proceedings under Shariat law which would be discussed subsequently.

CONSTITUTIONALITY OF TRIPLE TALAQ

The right to equality is protected by Article 14 of the Indian Constitution, which states that no one is above the law, which is paramount. In the eyes of the law, everyone is equal, regardless of gender or faith. We've seen that under triple talaq, only men are granted the ability to divorce. Because marriage is entered into with the free assent of both parties, the dissolution of such a marriage should likewise be with their free permission; only then will equality exist. However, in triple talaq, the husband can divorce the wife without her knowledge, which is a violation of the Muslim women's right to equality.

Further, the State shall not discriminate against any citizen solely based on religion, race, caste, sex, or place of birth, or any of them," states Article 15(1) and prohibits all forms of discrimination. Triple talaq is an abhorrent ritual in which men are granted all rights and women are treated as puppets who may be controlled as they choose. Because of their gender, Muslim women often face a triple penalty. Furthermore, Article 21 is the most sacred fundamental right. It discusses the right to life and personal liberty, both of which have been infringed by the triple talaq ideology. It infringes on a woman's basic dignity, as defined by Article 21.

Concerning the above provisions under the constitution, it is clear that due to Triple Talaq there has been a violation of fundamental rights. Moreover,this was made clear in the case of Sarabhai v. Rabia Bai way back in the year 1905 where the Bombay High Court held that it’s a heinous kind of divorce and an uncommon form of Talaq devised by the Omeyyads to evade the law's strictures. Talaq-ul-Biddat is theologically incorrect and thus, this form of Talaq has been argued to be unethical from a moral standpoint.Thereafter as stated above in the case of Shayara Bano, the following is the gist of the Supreme Court's ruling in the landmark case:

1. Instant Triple Talaq is arbitrary and unconstitutional.

2. It was used to subjugate women, in violation of Islamic law.

3. The bench further ordered the Central Government to adopt a law or legislation governing marriage and divorce in the Muslim community within the next six months.

4. There would be an injunction prohibiting husbands pronouncing instant triple talaq on their wives until the government formulates a law.

As a result, the Supreme Court's judgment barred instant talaq without affecting other types of divorce.

LEGISLATURE ON THE ISSUE

The Muslim Women (Protection of Rights on Marriage) Act, 2019, also known as the Triple Talaq Bill of 2019, was the legal development from the landmark judicial pronouncement of Shayara Bano v. Union of India (2017) delivered by the five-judge constitutional bench of the Hon'ble Apex Court of India, which declared the observance of the Talaq-e- Biddat illegal. The most notable characteristic of this statute is that it expressly declares talaq to be unlawful and illegal in any form, whether written or electronic. It makes triple talaq a punishable offense, and a Muslim man who proclaims triple talaq might face up to three years in prison and a fine.

One of the most important issues that emerge here is the concept of Talaq under this Act, which is defined in Section 2. (c). Talaq "means talaq-e-biddat or any other similar type of talaq having the impact of an instantaneous and irrevocable divorce proclaimed by a Muslim husband." As a result, the question that arisesis whether Talaq-Ul-Sunnat is covered by Section 2(c) or not.

It's also worth noting that in the matter of Reshma vs. Union of India through the Ministry of Women and Child Development, GOI, and Ors., the petition questions if Talaq Ul-Sunnat falls under the term of talaq under Section 2(c) of the 2019 law. The suit also questions the Muslim husband's "assumed absolute discretion" to divorce his wife "at any moment, for any cause, and without prior notification to wife." The opposing claim to this was that instant talaq had been pronounced illegal, the other two kinds were not specifically covered by the 2019 Act. "Saying 'talaq' one after the other is illegal, according to the Act." However, if you repeat it three times in three months or with a break between them, it is not considered a crime." Therefore, the division bench of Justices Vipin Sanghi and Jasmeet Singh of the Delhi High Court in the present has issued notice to the Centre, asking the authorities to file a response within eight weeks and scheduled a hearing for a later date.

CONCLUSION

In a nutshell, it has been noticed that in the Muslim society, marriage is a contract between a man and a female, and it is only finalized when both parties pronounce 'Qubool hai' thrice, but only the husband can pronounce 'talaq' thrice during the divorce. With the case of Shayara Bano before the Hon'ble Supreme Court of India, we have seen that the Hon'ble court has chosen to let those who deserve it have their rights, which is great and a significant step toward ending the unfairness that women face. But, in the present case before the Delhi High Court we are yet to see if the court agrees with the view that Talaq-ul-Sunnat (Ahsan and Hasan) also breaches the fundamental rights, under Articles 14, 15, and 21 of the Constitution.