Dr. Rhishikesh Dave.
Dean, Faculty of Law, Marwadi University
First published on April 27, 2018.
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The controversial The Muslim Women (Protection of Rights on Marriage) Bill 2017 ("Bill") was introduced in the Lok Sabha by Mr. Ravi Shankar Prasad. Following are some of the observations, based on legal issues that are apparent on plain reading of the said bill.
1. It straight away talks about Talaq-e-biddat and makes it void and illegal. Major part of Muslim law is not codified and hence, there is no codified law on Muslim divorce.The proposed Bill must also codify the types of talaq that are legally enforceable.
2. Section 3 of the Bill stipulates that pronouncement of talaq is illegal and void but it is not clear whether such pronouncement will dissolve the marriage or will have no legal effect on the status of marriage. This becomes more ambiguous because of section 5 that talks about providing subsistence allowance to the Muslim woman as if the marriage is dissolved. If that is the case, there is no explicit need for subsistence allowance as that would anyway be a duty of the Muslim husband under the present Muslim personal law on maintenance.
3. The effect of such talaq should be clarified and issues of inheritance and rights of Muslim women on the husband’s property must be made clear. It should also be made clear whether entitlement for subsistence allowance will waive off the right to inherit husband’s property by Muslim woman.
4. It will be very difficult to prove triple talaq by women especially when it is done orally by husband. If we apply the law of burden of proof as per the Indian Evidence Act, the burden will be upon women and it will be impossible for women to prove that her husband pronounced triple talaq. This has to be clarified otherwise this law will be useless.
5. Till now Muslim women could claim maintenance under the CrPC, the Protection of Women from Domestic Violence Act, 2005 and also under Muslim Women (Protection of Rights on Divorce) Act 1986, now we are adding a 4th avenue for claiming maintenance, which will create lot of confusion and there will be plethora of interpretations given by lower courts before the matter will finally be decided by the higher courts.
6. An important issue here is that what if the woman is deserted without pronouncing talaq? What is the legal remedy in that regard. As Muslim men can have 4 marriages, deserting one wife will not have any issues and he can easily marry another woman.
7. If the husband is in jail how will he provide subsistence allowance to his wife? The Bill needs to clarify the means of recovery of the allowance in such a situation.
There are multiple ambiguities around the Bill as of now,
1. There is no attempt to codify the legal form of Muslim divorce such as Talaq-e-Ahsan.
2. It appears as if there is no question of subsistence allowance or custody of child if the woman remains the legal wife of the husband. Making the “subsistence allowance” contingent upon divorce is simply tragic.
3. Presently, if the woman is abandoned then she can claim maintenance under the Domestic Violence Act, 2005, CrPC and also under the Muslim Women Protection Act 1986. This Bill creates the fourth avenue adding to the existing confusion regarding legal remedies available to the Muslim women.
Observations on the Triple Talaq Bill.