Author: Sreeparna Bhattacharjee, IV year of B.A.,LL.B(Hons.) From Amity University, Kolkata.
Co-author: Dhriti Chanda, B.Com.,LL.B(Hons.) From Amity University, Kolkata.
INTRODUCTION
In Muslim law, “Triple Talaq” is a form of divorce in which a husband can give his wife divorce by saying “Talaq” three times in a succession. The presence of the aggrieved women is not mandatory; she can be given Talaq without providing a valid cause. Under Muslim law, the term "Talaq" refers to a husband's rejection of a marriage. Since ancient times, the practice of triple Talaq has been practised in India.
There are three kinds of talaq in Islam: Ahsan, Hasan, and Talaq-e-Biddat (triple or instant talaq). Biddat cannot be revoked, although Ahsan and Hasan can. Triple talaq is most commonly practised among India's Muslim community who adhere to the Hanafi Islamic school of law. By repeating the word "talaq" three times, a Muslim man can divorce his wife, while women are unable to speak the same and must seek divorce through the Sharia Act of 1937.
In India's legal history, the public movement to abolish talaq-e-biddat, or triple talaq, has a lengthy history. In the case of Shayara Bano v. Union of India and Anr (2017), the Supreme Court finally put a halt to the practice. The aforementioned Act aims to safeguard the rights of Muslim women who are working to achieve the constitutional goals of Gender Justice and Equality. The Supreme Court declared the practice of triple talaq, where Muslim husbands can instantaneously and irrevocably divorce their wives by uttering the words ‘talaq talaq talaq’ as unconstitutional. So therefore, The Muslim Women (Protection of Rights on Marriage) Ordinance 2018 was passed by the President of India in 2018, making triple talaq not only void and unlawful, but also a non-bailable and cognizable offence punishable., The Parliament latter passed the Muslim Women (Protection of Rights on Marriage) Act, 2019 and hence the act was enforced.
BRIEFLY STATING THE PROVISIONS OF THE ACT
Section 1:- Extent and commencement
The Muslim Women (Protection of Rights on Marriage) Act, 2019 extends to the whole country of India and is deemed to have taken effect on September 19, 2018.
Section 2:- Definitions
Section 2 (a) states that electronic form is to be considered same as defined under section clause (r )of sub-section (1) of section 2 of the Information Technology Act, 2000. the act also states that "Magistrate" means a Judicial Magistrate of the First Class having jurisdiction under the Code of Criminal Procedure, 1973,in the region where the married Muslim women resides in order to avoid any complications. It is also defined under this section that "Talaq" denotes talaq-e-biddat or any other similar type of talaq having the impact of an instantaneous and irrevocable divorce declared by a Muslim husband.
Section 3:- . Talaq to be void and illegal
Any talaq declaration made by a Muslim husband against his wife, whether verbally, in writing, electronically, or in any other manner, is void and illegal.
Section 4:- Penalty
This provision provides that any Muslim husband who pronounces the Talaq described in section 3 is subject to a three-year prison sentence as well as a fine.
Section 5 – Allowance for maintenance
The magistrate determines that under this section, any married Muslim women upon whom Talaq has been exercised is entitled to receive subsistence allowance from her husband for her and the children.
Section 6 – Custody of the Children
In this section it is stated that in the event of Talaq of the married Muslim woman, the custody of her minor children is entitled to her for the time being and that will be determined by the magistrate.
Section 7 – Discretion of the magistrate
It shall be considered to be cognizable if any offence is punishable under this Act, if the facts relating to the commission of the offence is given to an Officer in charge of a police station by any person related to aggrieved women by blood or married Muslim women herself upon whom Talaq is held.
At the request of married Muslim women on whom Talaq is pronounced with the magistrate's authorization and terms and conditions, an offence punishable under this act may be compounded.
No bail can be granted by the magistrate unless the accused files an application, and the magistrate finds adequate grounds after hearing the married Muslim woman upon whom Talaq is pronounced, then bail can be granted as the magistrate deems fit.
Section 8 – The Muslim Women (Protection of Marriage Rights) Second Ordinance, 2019 has been repealed. and any action taken under the Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 will be done so in accordance with the terms of this Act.
ISSUES AND CHALLEGES
The step of the Government to legislate the act is a positive one but some people are criticizing it and some of are in support of this particular decision. Some have also argued that It is obvious that the penalty imposed is unjust and unreasonable. Any Court of law dealing with family affairs must first attempt to reconcile the parties, but there is no such provision in the current act, nor is there any provision for mediation. However, the law is divisive since it criminalises the practise of talaq-i-biddat rather than just stating that a divorce granted in this manner is illegal. It means that any husband who performs triple-talaq, whether orally, in writing, or electronically, is likely to face a fine and a three-year prison sentence.
Furthermore, how the husband is expected to support the wife while imprisoned is a critical question. It utterly negates the objective of the act, since the woman may be left financially destitute with no support for herself or her children, if any, and it may also prevent the woman to seek help from the act as she is afraid of her husband going to the prison after committing such an offence.Opponents see political evil at work, claiming that the government's eagerness to inflict criminal punishments is motivated by anti-Muslim sentiment. They claim that rather than defending women, the government's primary goal has been to threaten Muslim men who are terrified to be arrest.
CONCLUSION
The Act was drafted with good intentions, but there are several flaws that will need to be addressed and corrected over time. Because the Judicial Magistrate's position is so important because so much of the Act is based on his discretion, certain guiding considerations must be established.
The practicing of Triple Talaq has always been seen as a serious issue by the whole world, but there are few of Muslim countries have discontinued the practice of Triple Talaq, an extended time ago. Hopefully, the Act, via judicial precedents, will provide more clarity to its applications, remedies and the unwarranted situations that may arise due to the strict nature of the legislation.