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Muslim Women (Protection of Rights on Marriage) Bill, 2017

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December 29, 2017

What is the issue?

  • Lok Sabha has passed the Muslim Women (Protection of Rights on Marriage) Bill, 2017.
  • The Bill is abound with a number of internal contradictions raising questions on the very purpose and intent.

Every punishment which does not arise from absolute necessity is tyrannical. 

What are the highlight provisions?

  • Definition- The Bill defines talaq as talaq-e-biddat (instant triple talaq) or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce. 
  • It makes all forms of declaration of talaq to be void i.e. not enforceable in law. 
  • Offence and penalty - The Bill makes declaration of talaq a cognizable and non-bailable offence. 
  • A husband declaring talaq can be imprisoned for up to 3 years along with a fine.
  • Allowance - A Muslim woman against whom talaq has been declared is entitled to seek subsistence allowance from her husband.
  • This applies to the woman and her dependent children. 
  • The amount of the allowance will be decided by the Magistrate.
  • Custody - A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. 
  • The determination of custody will be made by the Magistrate.

What are the anomalies?

  • SC judgement - The Supreme Court, earlier, invalidated the triple talaq practice by calling it arbitrary and unconstitutional.
  • Logically, the pronouncement of talaq-e-biddat does not dissolve the marriage, and this is the law of the land under Article 141.
  • Contradictorily, the Bill presumes that the “pronouncement” of talaq can instantaneously and irrevocably dissolve the marriage.
  • The bill thus seems to be misreading the SC’s judgment on talaq.
  • Offence - After rendering talaq-e-biddat inoperative, considering it a cognisable and non-bailable offence seems illogical.
  • It raises questions on the validity of the law that criminalises an act after conceding that it does not result in a crime.
  • Post-divorce issues - Making provisions on post-divorce matters like subsistence allowance and the custody, when the pronouncement (instant talaq) itself does not dissolve the marriage appear baseless.

Why is this a case of over-criminalisation?

  • Necessity - Criminal law is not necessarily a choice but a necessity.
  • It should be used only as a “last resort” and only for the “most reprehensible wrongs”.
  • Excessive use of criminal law for purposes it is ill-suited to tackle is the harsh reality of a modern state.
  • Morality - The realm of private morality and immorality falls more within the individual and social sphere.
  • Regulating it should largely come from the deliberations of the society and, making it the law’s business may not bring in the desired effect.
  • In this context, criminalising triple talaq would hardly help in building the moral commitments of Muslim husbands.
  • It is not the function of a civilised legal system.


Source: PRS India, The Indian Express

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