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