Tuesday 16 January 2018

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017: CRITICAL ANALYSIS (Part I)

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017: CRITICAL ANALYSIS       (Part I)

Hello to my all readers,

I was continuously resisting myself to write again on the issue of triple talaq or talaq-ul-biddat.  As in my previous writing I clearly stated that it is un-Islamic and unconstitutional and same has been declared by Supreme Court in sayera bano v. Union of India.  But after seeing all the steps taken by the present government and seeing that nation has been misled. I felt that it became my primary duty to through some light on the present issue.
Today I will like to discuss on THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017 which is already the subject of so many mix reactions. As always I have my own personal views and I will never tilt my approach due to my cultural or religious belief. As a researcher I just bring facts in to the knowledge of my readers I no where a supporter of triple talaq.
Triple Talaq is biggest issue that the nation is facing today(as no other issue exist in our society). So first of all let us see what census says about divorce issue in India.
In India we do not have any special survey for recognising issue of divorce but according to census 2011, among divorced Indian women, are 68 per cent Hindus whereas 23.3 per cent are Muslims”. Of the 23.3 per cent, we have no data to find out the percentage of Muslim women divorced because of the pronouncement of triple talaq in one sitting. Neither the law commission nor any other state agency has done survey on extend of triple talaq in Muslim but they all proclaimed that it frequency is high. I am not saying it does not exist but its frequency is not so as been projected by the government. But the only survey that can be relied upon is survey conducted by the Bharatiya Muslim Mahila Andolan (BMMA), which claim the divorce rate among Muslims to be as high as 11% as opposed to the Census. This might be because survey done by BMMA covered 4,710 Muslim women from 10 states. According it this survey BMMA covered 117  divorce cases out of which  in 0.2 % cases talaq was given on phone,0.6 % through mail, 0.19 % through SMS. So from the above scenario we can very well understand  that the frequency of triple talaq is not such  been projected and Prior to passing any Bill it is the duty of government to do the study of stake holders and find out the real problem existing . Supreme court no where in its judgement declare that triple talaq should be criminalized.
Now coming to the present bill  preamble of bill reads as to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto. The words that need to be focused is that “prohibit divorce by pronouncing talaq by their husband” . Does the legislature mean that Muslim male cannot pronounce talaq to their wives in any form.  I do not understand that why they do not used the word talaq-ul-biddat instead of the word talaq. Same.  What Supreme Court guided was to frame work the legislation which will guide the Muslim male the procedure of pronouncement of talaq.  Similarly section 2(b) provides the unique definition of talaq which cannot be found anywhere in Muslim jurisprudence. It provides that "talaq" means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband. The word any other form of Talaq includes talaq-ul hasan and talaq-ul-ahasan as both talaq have tendency to convert in to irrevocable form of talaq. By giving such a voyage definition did legislature want to impose upon the Muslim male a barbaric legislation. Which takes away his all rights regarding the divorce? You can not find such type of law in any civilized society. If I am the Muslim male how should I will divorce my wife if i want to do so this bill is silent on this. Oh! I            am Muslim indeed so I will not have any right to divorce after my marriage Let me think ...
Section 3 “Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal
The issue in said section is same as in above section that is word talaq. But the peculiarity of this section lies in the last words that are “void and illegal”. It means that talaq-ul-biddat is void.  That’s mean it does not have any legal effect. The definition is valid on this point but  the consequence of void act have been given under section 4  of the act that is “Whoever 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 fine” . though  this clause is been subject to great criticism on the ground that Muslim marriage being a civil contract how its breach can be made punishable.  Therefore I will not be discussing that part in my blog rather being a legal researcher I will simply try to draw analogy from the act itself. Firstly bill nowhere define the amount of fine, i.e. there is no maximum limit of fine that can be imposed and all discretion lies in to the hand of judge. Secondly lets us assume a situation where wife in sudden fight with husband asked for instant talaq what will be the consequence because this is very common example and issue is to understand and addressed. Because the talaq is been asked by the wife and husband is the victim as he will have to face the punishment. Though the real mistake is of wife.
Some people may say that in such case issue will never reach to the court but this law itself declare that offence is cognizable and non bailable therefore is not need of complaint of wife in such situations. Police have ample power in criminal procedure code to take cognizance even without the complaint.
Let us presume another situation where husband pronounced the divorce to her wife but in front of magistrate he denies the same. What said wife will do as burden of proof lies on her and normally the act of divorce is matter of privacy how she will shift her burden of proof.
From the above discussion I can conclude that the present act is not the appropriate step that can be taken. Now the question remains open is than what will be the appropriate step can be taken which I will be discussing in my blog.(though so much still left uncovered and will be doing so in my next blog)

Above discussion is writers personal view and does not aim to criticize  policy  of the government. Writer is no where in favor of triple talaq and very vehemently criticized it in its earlier series of blog  titled as TRIPLE TALAQ

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