The Muslim Women (Protection of Rights on Marriage) Act, 2019

The Muslim Women (Protection of Rights on Marriage) Act, 2019—better known as the Triple Talaq Act—was forwarded into legislation by the Parliament of India for the safeguarding of the rights of Muslim women in marriage. The process of triple talaq is deemed criminal, which occurs in some Muslim communities in India, where a husband can divorce a wife without notice or any due process by uttering the word talaq (divorce) thrice. Most often, this practice has left many women in such communities vulnerable and without legal rights, thus incurring severe social as well as economic hardships.

The Act aims to provide legal protection to Muslim women against the practice of instantaneous divorce and, at the same time, ensure dignity, security, and equality within marriage for them. By criminalizing the aforementioned practice and making provisions for the imprisonment of offenders, it intends to deter husbands from unilateral divorce procedures against their wives. Additionally, the Act protects women in terms of their rights to financial support and custody of children after divorce.

Legislative Journey of The Muslim Women (Protection of Rights on Marriage) Act, 2019

This journey can be divided into three important phases: the Supreme Court ruling, the ordinance promulgation, and the process through parliament by which the act was finally passed.

Supreme Court Ruling on Triple Talaq

One of the landmark judgments of the Supreme Court of India came on August 22, 2017(Shayara Bano v. Union of India), which declared that triple talaq was unconstitutional with a split of 3:2. The main petitioner was Shayara Bano, who challenged the practice on grounds of gender discrimination and violation of fundamental rights. The majority opinion included a finding by Justices Rohinton Nariman and U.U. Lalit held triple talaq "manifestly arbitrary" and a violation of Article 14 (Right to Equality) of the Constitution. The court held that unilateralism has to do with a denial of women's dignity and equality, and hence urgently exposes the need for legislative intervention to do away with this prong of discrimination. The dissenters preferred what they called "the gradual approach": legislation should follow a temporary moratorium of the practice for six months.

Immediately following the court ruling, the Indian government entered the firm establishment of involvement through executive action for the redress of these grievances. The ordinance enacted on 19 September 2018 turned triple talaq illegal and punishable by imprisonment of up to three years. This ordinance provided immediate relief to a section of Muslim women who would face arbitrary divorce while working toward comprehensive legislation. Such immediate measures reinforced the urgency of showing the government's concern for women's rights concerning constitutional mandates.

Parliamentary Process: Bill Introduction and Passage

On June 21, 2019, the Muslim Women (Protection of Rights on Marriage) Bill was introduced by Law Minister Ravi Shankar Prasad in the Lok Sabha. Considering the amount of debate and discussion in both houses of Parliament, the bill has been one that has raised different shades of opinion on personal law reform and women's rights, in addition to opposition by some political parties and religious organizations. Finally, however, the bill was passed by both houses. Then it was given presidential assent on July 30, 2019, and came into force on August 1, 2019. This legislative process constitutes a very important step towards empowering Muslim women and protecting them against discrimination within the framework of personal law.

Key Provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019

The following are important provisions of the Act regarding its intent and impact:

Declaration of Talaq as Void and Illegal

The Act unequivocally states that any pronouncement of talaq is void and illegal. Such pronouncements can be made verbally, in writing, or through electronic means. It has defined talaq-e-biddat (instantaneous and irrevocable divorce) as a form of talaq that causes immediate divorce without any period of waiting or reconciliation. The provision aimed to define the arbitrary nature of triple talaq so that marriage could not be dissolved unilaterally by husbands without due process.

Punishment for Pronouncing Talaq

It has been made a punishable offense, which can also be cognizable, that is, by which police may arrest the condemned person without a warrant in the pronouncement of talaq. A convict for pronouncing talaq can be imprisoned for up to three years, apart from a fine. Such a provision will act as a disincentive for the said act, and it will prove to be a boon for women against sudden and arbitrary divorces.

Rights to Subsistence Allowance

The Act states that now a Muslim woman against whom a pronouncement of talaq has been made is entitled to a subsistence allowance, that is, from her husband, for herself and all dependent children. The subsidy amount is determined by a magistrate so that these women would not suffer financially during or post-divorce proceedings. The provision acknowledges the fact that many divorced women lack financial strength and provides them with some essential financial security.

Custody of Minor Children

This is also the other provision in the Act under which Muslim women divorced by talaq have the right to apply for the custody of their minor children. The manner in which custody will be awarded has to be decided by a magistrate in consideration of the welfare of the child. This provision is a remedy to the historical injustices when the custody rights of women were lost, oftentimes after divorce, by safeguarding their maternal roles.

Cognizable Offense and Bail Provisions

Talaq is a cognizable offense, but it is only cognizable based on information from the aggrieved woman or her relatives. The section permits immediate action by the police, but at the same time has provisions for the grant of bail. The grant of bail by magistrates, however, follows their hearing of the involved woman and reasonable grounds in that regard. This protects the right of women to be heard in judicial proceedings connected with their rights.

Compounding Offense

Under the Act, the offense made compounding possible, through which the parties could arrive at a compromise on the request of the woman against whom talaq has been declared. It is determined by the magistrate the terms and conditions on which compounding may occur, thereby being flexible in the resolution of conflict amicably while upholding women's rights.

Protection Against Eviction

The Act also contains provisions to stop divorced Muslim women from being evicted from the part of the conjugal home that they shared with the husband or from being denied complete access to that part after the divorce. Such windows are possible for having a right of residence in marriage homes post-divorce, thus avoiding possible future homelessness and establishing a stable transitional phase for the women in the event of divorce.

Retrospective Effect

This Act has retrospective effect from 19 September 2018, meaning it will apply to all instances of triple talaq after that date, even if these were pronounced before the enactment of the law. The introduction of such a retrospective application is a hallmark that denotes the seriousness with which the lawmaker sought to correct the injustice done to Muslim women.

Critiques and Challenges of The Muslim Women (Protection of Rights on Marriage) Act, 2019

Although the Act seems a wonderful step forward in gender justice, it has met with various critiques and challenges, creating doubt concerning its effectiveness and issues related to Muslim women in India.

Lack of Comprehensive Safeguards

Of the various criticisms of the Act, one of the most important is that it does not consider providing thorough safeguards for women. They argue that the Act has made triple talaq a criminal offense but has not addressed other peripheral matters like maintenance, property rights, child custody, etc. Also, the subsistence allowance is considered grossly inadequate, especially when compared to past laws wherein divorce would ensure a "fair and reasonable settlement." It concerns many that such a change will lead to the erosion rather than the enrichment of any of the existing rights.

Besides, there are no directives regarding the maintenance and division of assets, rendering lots of women too exposed to post-divorce financial instability. Many may therefore find themselves deprived of necessary support or entitlements sharpened towards their economic vulnerability.

Implementation Hurdles

Challenges plague the Act in terms of implementation. Despite its legal provisions, a significant gap between law and practice exists. Awareness levels regarding the Act remain very low in the Muslim female populace, leaving very little room for rights assertion. Many of these women often remain oblivious to what they consider an avenue of legal redress under this legislation, thereby undermining all protective undertakings of it.

Besides, the backlog in the judicial system can render justice unavailable to women who have sought a remedy under the Act. Legal protections work well when prompt judicial interventions occur; otherwise, such lapses leave women in an exceedingly precarious situation without immediate recourse or remedy for their grievances.

Socio-Stigma and Community Resistance

Social stigma vis-à-vis divorce has remained a huge challenge for Muslim women, especially after the passing of the Act. The procedure of seeking legal redress can lead to the ostracism of a woman by her community, which in turn serves as an impediment to her pursuing her rights under the law. Such social pressure works in furtherance of the patriarchal norms by closing women's voices and furthering gender discrimination.

Some sections of the Muslim community resist perceived government interference in personal laws. Critics may argue that the Act is viewed, at least by some members, as an encroachment into religious autonomy and personal law practice, thus creating further fissures between communities while complicating efforts towards gender justice.

Potential for Misuse

The other fear lies in the potential misuse of criminal provisions under the Act. Critics say it might protect women from fault-finding by husbands or even lead to false accusations that send them to legal consequences without substantial evidence. Given the much lower burden of proof required, there is much concern about the fairness and due process involved in initiating action against the alleged violators.

This opened the door for many to demand a shift from criminal penalties to civil remedies, which can rather be supplemented by mediation and reconciliation, but without shoving husbands into prison for their unjust practices.

Political Context and Criticism

Critics have viewed the political context in which this law was passed as indicative of a larger agenda by the ruling government to marginalize Muslim communities in India. Framing triple talaq as a religious problem has been seen as problematic, as it homogenizes Muslims and reinforces stereotypes about Muslim men.

It has also been claimed that the bill was to be politically motivated rather than genuinely aimed at women's rights. Statements made by political leaders at times bore an anti-Muslim penchant, providing grist for the speculation that such a law was likely to be part of a more complex pattern of policy discrimination against Muslims in India.

Quantifying the Impact of The Muslim Women (Protection of Rights on Marriage) Act, 2019

It is important to ascertain this by measuring its effects, which would be the impact on the number of cases of triple talaq, changed social mindsets, and improved legal protections for women.

Reduction in Triple Talaq Cases

The most important impact that the Act has had has been to bring down the reports of triple talaq itself. As per government sources and media reports, the application of this law has witnessed an 82% decrease in cases. However, all of this can be attributed to many factors:

Legal Deterrence: The criminalization of triple talaq has created a legal deterrent against the misuse of this practice. Now, husbands have to think twice before saying talaq because they may land in prison for a maximum period of three years. An impulsive decision can lead to severe consequences.
Increased Awareness: Now, the act has raised everyone's awareness regarding the legal aspects of triple talaq among most Muslim communities. It gives power to some women to understand that they can legally fight such activities against them, such as arbitrary divorces.
Shift Towards Mediation: The incidence of triple talaq has decreased with resolution by the parties to the dispute through mediation or counseling, giving the couple more respect for the conflict.

Legal Protections for Women

The Act provides important legal protections for Muslim women affected by triple talaq, not only in theory but, as has begun to happen, in practice:

Subsistence Allowance: The provision of subsistence allowance to divorced women places them in a financial position of dependency on their husbands, both during and after the divorce proceedings. This is very important because economic independence and security are important for women.
Custody Rights: The Act recognizes the entitlement of women to file a petition before a competent court for the grant of custody post-divorce of their minor children. As a result, it mitigates the historical injustices where women were denied the right to the custody of their children, enabling them to continue maternal roles and welfare for their children.
Protection Against Eviction: The Act could ensure that a divorced woman has her right to the marital home, prohibiting her from eviction from such shared households. This clause is the most important one to avoid homelessness and instability during hard moments in the life of a woman.

Societal Attitudes and Awareness

This has generated some important discussions regarding gender equality and women's rights within Muslim communities and Indian society at large:

Cultural Shift: It is gradually becoming culturally familiar to accept women's rights in marriage and divorce, hence reframing the community view and shifting gender justice. The Act would create forums for musings on gender justice that would compel communities to rethink patriarchal ideologies that had historically marginalized women.
Empowerment through Education: Increased awareness about women's rights through the Act has led to educational initiatives that work to enlighten Muslim women about their legal entitlements. This has helped build the confidence of women to exercise their rights and combat discrimination against them.
Community Engagement: Many NGOs and advocacy groups are starting the work within the communities to advocate for the provisions of the Act and gender equality. Certainly, such grassroots work is important for cultural safety and desiring environments where women's rights can thrive.

Challenges and Areas for Improvement

While these bring positive change in the lives of most people, there are still challenges in their path to full realization of the Act:

Implementation Gaps: Though the law has a much wider ambit in the protection of women's rights, there are implementation deficits. Many women are still away from the legal resources and support systems necessary for availing themselves of their rights under the Act.
Social Stigma: Women pursuing justice through legal means often, in such cases, suffer social stigma or, in many instances, ostracism by the community; in such situations, the societal pressure causes many women to refrain from availing themselves of their rights under this Act.
Judicial Delays: Backlogs arising from the Indian courts can delay the resolution of justice for the women affected, thus nullifying the benefits of this legislation. Timely adjudication is necessary so that the rights of women are effectively protected.

Above all, the Muslim Women (Protection of Rights on Marriage) Act, 2019, holds an important role in protecting Muslim women's rights and dignity in India. By criminalizing triple talaq to provide maintenance and custody, it empowers Muslim women to seek justice and equality in their marriages. Such provisions have debatable criticisms that come with them, but essentially, the Act shows that it is a step in the right direction as far as gender equality and women's rights in the Muslim community are concerned.

Now, the government, society, and community leaders must show interest in ensuring the effective implementation of the Act to support Muslim women facing obstacles in accessing their rights. Raising awareness about the Act's provisions and sensitization towards gender equality can provide the environment for creating an inclusive and just society, upholding the rights of Muslim women.

. . .

References:

Discus