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Muslim Marriage & Talaq

Submitted by asandil on Mon, 09/07/2020 - 12:38

Marriage is a sacred institution in Islam. Celibacy and bachelorhood are discouraged in Islam and it says marriage completes the faith of a Muslim but still, marriage is a contract between husband and wife therefore it could be broken. The followings are the Islamic ways of granting a divorce.


1. Mutual Consent divorce - Here both husband and wife mutually decide to get separated.


2. Khulla - This is initiated by the wife. In Islam, a wife cant grants a divorce but can only seek divorce. The power to grant a divorce is only available to the husband. If the husband agrees divorce is finalized otherwise wife can approach Sharia Court and later other courts.


3. Talaq e Hasan - Husband pronounces Talaq for once and waits for 30 days period. In these 30 days, arbitration or reconciliation can happen by elders or well-wishers otherwise husband can pronounce Talaq again and wait for another 30 days. After the 90 days is over since the first pronunciation Talaq is final and the Husband cant revoke this.


4. Talaq e Ahsan - This is the purest form of Talaq and here Husband pronounces Talaq for once and waits for 90 days. If there is no reconsideration in 90 days, Talaq is final and cant be revoked.


5. Talaq e Biddat - This is the most controversion form of Talaq and it was introduced later. Here Husband can pronounce Talaq 3 times and this is over. This is called an instant triple talaq. Here is no scope of reconciliations or arbitration.


Shayara Bano VS Union of India, 2017
Here Shayara Bano along with 4 other women approached the supreme court asking to save their fundamental rights. Supreme court set up a constitutional bench of 5 judges. 2 Judges said this cant be banned and parliament has to make a law to abolish this. As religion isn't part of logic but faith. Justice Kurian Joseph said this form of Talaq is unIslamic since there is no scope of reconciliation and arbitration. Supreme court put a stay on triple talaq. Hence Instant triple talaq was set aside and it means even if the husband pronounces triple talaq marriage was still valid. But even after the 2017 verdict government found that there are multiple violations of supreme court orders.  A need for law was felt to punish those involved in triple talaq.

 
The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was passed in parliament.  This is an Act of the Parliament of India criminalizing triple talaq.

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2019

[Dated 31st July, 2019.]

Ministry of Law and Justice

(Legislative Department)

The following Act of Parliament received the assent of the President on the 31st July, 2019, and is hereby published for general information:-

 

An Act to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.

 

Be it enacted by Parliament in the Seventieth Year of the Republic of India as follows:-

 

CHAPTER I

Preliminary

1. (1) This Act may be called the Muslim Women (Protection of Rights on Marriage) Act, 2019.

 

(2) It shall extend to the whole of India except the State of Jammu and Kashmir.

 

(3) It shall be deemed to have come into force on the 19th day of September, 2018.

 

2. In this Act, unless the context otherwise requires,-

 

(a) "electronic form" shall have the same meaning as assigned to it in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);

(b) "Magistrate" means a Judicial Magistrate of the first class exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974), in the area where the married Muslim woman resides; and

(c) "talaq" means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.

CHAPTER II

Declaration of Talaq to be Void and Illegal

3. Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.

 

4.  Any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.

 

CHAPTER III

Protection of Rights of Married Muslim Women

5. Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for her and dependent children, as may be determined by the Magistrate.

 

6. Notwithstanding anything contained in any other law for the time being in force, a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.

 

7. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

 

(a) an offence punishable under this Act shall be cognizable, if information relating to the commission of the offence is given to an officer in charge of a police station by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage;

(b) an offence punishable under this Act shall be compoundable, at the instance of the married Muslim woman upon whom talaq is pronounced with the permission of the Magistrate, on such terms and conditions as he may determine;

(c) no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person.

8. (1) The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 (Ord. 4 of 2019) is hereby repealed.

 

(2) Notwithstanding such repeal, anything done or any action taken under the Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 (Ord. 4 of 2019), shall be deemed to have been done or taken under the provisions of this Act.