The objectives of Muslim Women (Protection of Rights on Marriage) Bill, 2017 were to ensure gender justice and gender equality amongst Muslim women facing abandonment through the practice of triple talaq. But criminalising triple talaq does not protect the interests of women and exposes men to dangers. The bill violates the right to equality on the basis of religion and gender. A more effective legislation would provide a legal procedure for Muslim men to divorce their wife or secure the interests of women facing abandonment or both.
In August 2017, the Supreme Court (SC) declared divorce through pronouncement of triple talaq as void and illegal. Thus, there was no need to legislate specifically on the practice. Muslim women are already protected from mental abuse by Section 3 (a) of the Domestic Violence Act, 2005. Moreover, the bill incompletely defines talaq-e-biddat or triple talaq and fails to distinguish it from other forms of acceptable talaq.
The bill recognises the triple talaq as a non-bailable and cognisable offence. The principle of proportionality is violated by imposing a penal punishment for a civil wrong that does not affect. Moreover, criminalisation has neither been proposed by any Islamic country nor in the SC’s judgement.
The marriage remains intact while the husband is jailed as triple talaq is void. This prevents the wife from remarrying during this period. Plus, the bill leaves no scope for reconciliation and may lead to misunderstanding between the couple. This compounds with the problem of entitling the children’s custody to the wife when the marriage is not dissolved. The absence of a provision for the wife to be the sole complainant creates a space for misuse by external parties leading to marginalisation of married Muslim men and will deprive them of their rights.
The bill raises the question of maintenance for the wife as the husband’s income would be restricted. Instead, providing the wife with the right to reside in the shared household or creating a corpus for such women would have been a more effective solution.
Community’s involvement is essential in mediating the divorce. But the bill completely ignores this aspect. The All India Muslim Personal Law Board (AIMPLB) and other religious organisations were not consulted while drafting the law. Suggestions for reforms within the community itself would have been more cogent to reduce the incidence of the practice.
The bill should be sent to the standing committee to consider these lacunae. A holistic solution would incorporate best practices from other countries. In Algeria for instance, any divorce declared outside the court is void. It stipulates a period for reconciliation or pronouncement before witnesses. Sri Lanka also does not recognise instant divorce. The husband notifies an Islamic judge who attempts to reconcile the couple within 30 days. Similar to UAE where the conciliatory process is mandatory for divorce.
The larger issue of Muslim women in India is the high rate of illiteracy, unemployment and inaccessibility of welfare schemes. According to the Sachar Committee’s report, 70% of women are housewives and depend entirely on their husbands. Education of Muslim women would empower them ensuring financial independence. It is through real upliftment of their position that the goals of gender justice and equality would be achieved.