The Muslim Women (Protection of Rights on Marriage) Bill, 2018

The Muslim Women (Protection of Rights on Marriage) Bill, 2018 was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on December 17, 2018. It replaces an Ordinance promulgated on September 19, 2018.  Note that a Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced and passed in Lok Sabha on December 28, 2017.  The 2017 Bill is listed for withdrawal.

The Bill makes all declaration 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-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.

Offense and penalty: The Bill makes the declaration of talaq a cognizable offense, attracting up to three years’ imprisonment with a fine.  (A cognizable offense is one for which a police officer may arrest an accused person without a warrant.)  The offense will be cognizable only if information relating to the offense 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. 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 offense may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared). Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute.  The terms and conditions of the compounding of the offence will be determined by the Magistrate.

Allowance: 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.

What’s the issue all about- A brief history:

The case dates back to 2016 when the Supreme Court had sought assistance from the then Attorney General Mukul Rohatgi on pleas challenging the constitutional validity of “triple talaq”, “nikah halala” and “polygamy”, to assess whether Muslim women face gender discrimination in cases of divorce.

Opposing the practice of triple talaq, the Centre told the top court that there is a need to re-look at these practices on grounds of gender equality and secularism.

The Supreme Court later announced the setting up of a five-judge constitutional bench to hear and deliberate on the challenges against the practice of ‘triple talaq, nikah halala’ and polygamy.

The issue gained political momentum on March 2017 when the All India Muslim Personal Law Board (AIMPLB) told the Supreme Court that the issue of triple talaq falls outside the judiciary’s realm and that these issues should not be touched by the court.

However, on August 22 this year, the Supreme Court set aside the decade-old practice of instant triple talaq saying it was violative of Article 14 and 21 of the Indian Constitution.

In September, the government had proposed the Muslim Women (Protection of Rights on Marriage) Bill in the Parliament and sought to make triple talaq a punishable offense under the law.

At first, the Bill was passed in the Lok Sabha but it failed to secure a majority in the Rajya Sabha. The Bill was postponed till the winter session of Parliament. Following this, an ordinance was issued by the government after the bill failed to get cleared in Rajya Sabha amid protests by the Opposition.

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