The Muslim Women bill, 2017 – A
necessary bill to be passed
A Draft to strengthen the legal protection of
fundamental Rights and uphold the sanctity of the holy Quran
In the wake of government considering
the ordinance route to criminalize talaq - e - biddat (according to media
sources), let’s have a look at the long awaited, yet to be passed bill where
this article opines that it lies in the purview of the holy Quran and does not
transgress it.
“…The age before the birth of Islam is known
as period of Jahiliyyah in Islamic history. Everyone knows the word Jahiliyyah,
it is ignorance. Abdullah Yusuf Ali
gives an example of Jahiliyyah and says, there used to be some people who would
use the name of the God and commit crime against women. And, it is strictly
prohibited in Quran Shareef not to do such things. But, it seems that, even
after 1400 years, some people are Jahil and will continue to be Jahil.”
M J Akbar has quelled not only the
opposition voice in the parliament but also the noise of extreme conservatives
of the nation. With his contained hysteria, he has strongly supported the
triple Talaq bill introduced by Union Law minister Ravi Shankar Prasad in Lok
Sabha on 28th December 2017. He has addressed every question which
the prime time debates of every news channel takes up with every required and
non-required actors involved in debate.
The Muslim Women(Protection of rights
on marriage) bill makes instant Talaq which is also known as Talq-e-biddat null
and void and criminalizes that act. Bill has each a clause for allowance and
children custody. The jail term and criminalizing part has been opposed by few
parties such as All India Majlis-e-Ittehabul Muslimeen (AIMIM), Rashriya Janata
Dal, Biju Janata Dal, AIADMK, All India Muslim League. Some of them also
strongly opposed the way it has been drafted. Some oppose it as saying that it
destroys Islamic culture!
Mentioning the existence of
imposition of 7 year imprisonment for practicing bigamy in Indian Jurisprudence,
M J Akbar has trashed the arguments to reframe the clause in chapter III of the
bill, pertaining to 3 year jail term. He has opined that it is necessary to
keep such instant talaq practices outside the social system considering the
numerous cases which kept women in limbo from law. Quran also does not provide
for Talaq-e-biddat, it is a practice emerged outside the book. This practice is
considered even in Islamic theology as bad (Shalini, 2016). Quran provides a
long procedure for divorce which is made considering the fact that the partners
wish to break the holy contract of marriage. Talaq rather provides for reunion
of couple and time for reconciliation.
2:226 – “For those who take an oath of abstention from their wives, a
waiting for four months is ordained; if .then they return Allah is
Oft-forgiving, Most Merciful”
2:228 – “Divorced women shall wait concerning themselves for three
monthly periods. And their husbands have the better right to take them back in
that period, if they wish for reconciliation. And women shall have rights similar
to the rights against them, according to what is equitable.
Before giving Talaq, husband has to
take an oath for abstention from their wives and a period of 4 months will be
ordained. This four months can be considered as a period to rethink about their
decision. Even after giving Talaq, 3 months of gestation period is given in
which the couple can reunite. If Quran is an accepted part of Islamic law,
Talaq-e-bibbat itself becomes unsuitable for Islamic culture and thus this bill
would uphold the sanctity of Holy Quran.
Not only it has the
provision of extended period for reconcialation, but it also provided for a necessary allowance for wives
and children if divorce is taken. It provides a way for post-divorce life in an
equitable and justiciable manner. Similarly, this bill also provides for
seeking subsistence allowance for wife and dependent children. Thus, the clauses
in chapter III of the bill, which provides for subsistence
allowance and custody of children actually supports Quranic verses rather than rendering them
as redundant which is argued by some. Neither any section nor a clause is
against the sanctity of the holy Quran.
2:236 – “There is
no blame on you if you divorce a women
before consummation or fixation of their dower; but bestow on them, the wealthy
according to his means and the poor according to his means – a gift of
reasonable amount is due from those who wish to do the right thing.
If this is how the
bill gains its stength, lack of clarity in each section leads to the public
conslusion, an hasty draft. There was no mention about the alternative subsistence allowance if
husband is not capable of any. If divorce is given and there is no allowance,
how would a women survive in this patriarchal society? Back during 1986, Muslim
Women Bill (Protection of rights on Divorce) has a provision which says, state
Wakf board would provide the remuneration but no such cause exists in the 2017
bill. It should have provided a clause for financial and rehabilitation
assistance through Wakf board if needed rather than trying to paraphrase the
verse 2:236 of Quran.
Another clause missing clarity is the
problem of children's custody. Even though bill leaves the decision of custody
in the hands of magistrate, clear mention of custodian rights to every party
should have been mentioned. And, there must also be a provision to amicably
settle the problem of custody of children between the partners and their
families which would bring more scope for risk aversion of child’s future. Nongovernmental
organization or Wakf board does not have any space in the bill whose existence
might have strengthened the government's arguments of securing women rights or
custodian rights.
Flaria Agnes, a feminist legal
scholar in a news paper article opined that 'bill won't help Muslim women' and
' sending husbands to jail for instant Talaq places women at risk of
homelessness and maintenance.' (Flaria, 2018) Even though these arguments may
seem as rhetoric, it provides a light of thought on what happens after the imprisonment
of husband. Will there be divorce or marriage will continue to be hold if
talaq-e-biddat is called for? If marriage is upheld, then what about the
consequences faced by women in her immediate environment during those 3 years
and from husband after 3 years? These are the questions which makes chapter III
of the bill a vaguely drafted one.
It is also important to note that
this has been drafted on the lines of THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON
DIVORCE) ACT, 1986 where the protection is now offered even for the marriage
and from unlawful, immoral, inhumane Talaq-e-biddat. The previous act was
welcomed with much pride and happiness considering it as an upholder of
fundamental rights especially for Muslim women.
Religion is an upholder of human
rights and thus it must be a human centric but not institution centric
(Venugopal, 2004). Thus Quran does not come against any bill which would uphold
the human rights. Contrary to the allegations that the bill violates right to
practice any religion it can be said that the redrafted bill does not violate
the provisions of article 25 and 26 of the constitution but rather provides an
opening towards the strengthening of article 14, 15, 19, 21, and also 25 and
26. Thus, it would be better if this bill is carried on and provide more
clarity on the issues mentioned so that the law cannot be exploited wrongly.
Any bill introduced in any period, it must always be better than its
predecessor. Thus, the Muslim Women (Protection of Rights on Marriage) Bill,
2017 must be better than The Muslim Women (Protection of Rights on Divorce)
Act, 1986. “Don’t destroy the good in search of Ideal” were the words spoken by
M J Akbar at the end of his speech in Lok Sabha which is also an apt way to end
this article.
References:
1. Shalini, Nair. 2016. “ Meaning:
Talaq-e-biddat and Nikah Halala.” The
Indian Express. October 22, 2017. http://indianexpress.com/article/explained/triple-talaq-muslim-personal-law-talaq-e-bidat-nikah-halala-meaning-3104657/
2.
The Quran. Translated by Abdullah Yusuf Ali. Good
Read books: New Delhi
3.
The Muslim Women (Protection of
Rights on Marriage) Bill, 2017. 2017. http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/247_2017_LS_Eng.pdf
4.
“The Muslim Women (Protection Of Rights On Divorce) Act, 1986.”Ministry
of Law and Justice. http://lawmin.nic.in/ld/P-ACT/1986/The%20Muslim%20Women%20(Protection%20of%20Rights%20on%20Divorce)%20Act,%201986.pdf
5. “Atmosphere of Fear Must Be Removed Surrounding
the Muslim Women :MJ Akbar || Lok Sabha || NTV.” You tube. Accessed
December 28, 2017. https://www.youtube.com/watch?v=XfyMe8c2wsQ
6. Venugopal Menon. 2004. “Human Rights and
Religion: Is Religion an Obstacle to Human Rights.” Un Published article
7. Mohammed Azimullah. 2017. Islam Does Not
Sanction Triple Talq in One Sitting. The Wire. October 20, 2016. https://thewire.in/74520/islam-triple-talaq-one-sitting/
8. Shakil Sana. 2018. “Ordinance to Criminalize
Triple Talaq in Making”. The New Indian Express. May 3, 2018. http://epaper.newindianexpress.com/1642107/The-New-Indian-Express-Hyderabad/03-05-2018#clip/28353995/b655af9d-596c-4eef-95b5-3ca46d55bb78/896.0000000000001:381.17601760176
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