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Islam, Women and Feminism ( 22 Jan 2018, NewAgeIslam.Com)

Objections and Suggestions: Muslim Women Protection of Rights on Marriage Bill, 2017

 

By Manzurul Haque for New Age Islam

23 January 2018

 I spoke to our MP on the subject and he asked me to tell him what our objections are. Here I have redrafted the Bill as I feel it should be: Please take up:

Govt. Draft Above and My Suggestions below Each Section/Point

Introduction:

A BILL 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.

My Objections/Suggestions (Manzurul Haque)

Introduction:

A BILL to protect the rights of married Muslim women and to prohibit the misuse of Talaq by pronouncing Talaq by their husbands and to provide for matters connected therewith or incidental thereto.

(Note: Sure enough, Govt of India does not want to selectively close the option of divorce to a Muslim couple)

Statement of Objects:

Point 3. In spite of the Supreme Court setting aside Talaq-e-Biddat, and the assurance of AIMPLB, there have been reports of divorce by way of Talaq-e-Biddat from different parts of the country. It is seen that setting aside Talaq-e-Biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims. It is, therefore, felt that there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce.

(Note: Too much of a substandard clerical language really)

My Objections/Suggestions (Manzurul Haque)

Statement of Objects:

Point 3. Supreme Court has declared void and illegal, what is popularly known and practised amongst Indian Muslims as Talaq-e-Biddat, which in other words means, pronouncing of the word Talaq three times in one sitting, by husband, giving finality to the divorce. Since this practice is widely prevalent in India, it is imperative to attach penal provisions to punish the promoters of such practice, be that the husband or his accomplices, in the furtherance of this practice.

Point 4. In order to prevent the continued harassment being meted out to the hapless married Muslim women due to Talaq-e-Biddat, urgent suitable legislation is necessary to give some relief to them.”

My Objections/Suggestions (Manzurul Haque)

Point 4. (Note: Not needed being redundant)

Section 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; (b) " Talaq-e-Biddat”  or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband; and (c) "Magistrate" means a Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973, in the area where a married Muslim woman resides.

My Objections/Suggestions (Manzurul Haque)

Please add this after (a) to (c) of Section 2 (definitions):

(d) Any number of pronouncements of the word 'Talaq’ shall be counted as one which is the initiation of the process of Talaq, to bring the Talaq into completion at the end of Iddat period.

(e) Halala: Halala should be understood as that kind of farcical Halala, reportedly practiced in India, in which, after the Talaq, the wife in question, intentionally contracts a marriage with another person, to premeditatedly seek similar Talaq, from that another person she so marries, so that she becomes eligible and available to marry her ex-husband.

(f) Iddat: The Iddat is a time period intervening between pronouncement of   and legal effectiveness of Talaq, with certain obligations, during which the divorced wife cannot re-marry with another person. The Iddat of a woman, divorced by her husband is three monthly periods, unless she is pregnant in which case the Iddat shall last until she gives birth. If the marriage was not consummated or if she does not menstruate, then in such cases, there is no Iddat, and therefore a constructive period of three lunar months shall be deemed as the Iddat for effecting reconciliation and reconsideration. 

For a woman whose husband has died, the `Iddah is four lunar months and ten days after the death of the husband, whether or not the marriage was consummated.

(i) Consent: In the case of a farcical Halala taking place, the consent of a woman though given freely for the farcical Halala,  under influence of religion, would be legally deemed as obtained under psychological duress and would therefore be treated as  ‘no consent'

Section 3 of the draft legislation reads,

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

My Objections/Suggestions (Manzurul Haque)

Section 3. Any pronouncement of Talaq, intending to be Talaq-e-Biddat, by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal. Any number of pronouncements of the word 'Talaq’ shall be counted as one which is the initiation of the process of Talaq, to bring the Talaq into completion at the end of Iddat period. Before expiry of Iddat-period, the husband shall not disturb or would be compelled to disturb the status quo of residence of wife, custody and residence of children, expenses of household and family members etc, the essential concomitants of a married life;  and the husband shall have to undergo a formal counselling by a committee of two relatives, the proceedings of which shall be duly recorded as a legal document. During this period husband can re-establish relationship, called Rujoo, with wife and has a right to do so. After Iddat period, man and woman by mutual consent alone, can perform fresh Nikah and any interference in their performing fresh Nikah would be deemed as perpetuating and promoting Talaq-e-Biddat. This opportunity of Nikah with ex-wife will however seize after the third Talaq in the life time of the couple.

Section 4 of the Bill states;

"Whoever 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 fine.

My Objections/Suggestions (Manzurul Haque)

Section 4. The impact of this criminal Act is not aimed at the interpersonal conjugal relationship between husband and wife, but on the social space in which the couple is situated, which leads to serious injustices to Muslim women. Therefore, upon utterance of 'Talaq' three times or more, by husband to wife,  if any religious cleric or person, including a  local ‘Maulvi’ or ‘Maulana’,   is provenly found engaged in advising and or  abetting separation from the wife of the husband, whatever may be the theological position on the question, which has already been divested of any legal persuasion   by the Supreme Court judgment in Shayara Bano v. Union of India & Ors, 2017, then such advising person  shall be punished with three years of imprisonment. If the relatives of the husband have been noticed of talking of Halala and been found involved in the disturbing the status quo of the residence of the family etc., then each one of such relatives should be punished with   one  year of imprisonment . If a person  knowing the facts of the case, actually performed so-called  farcical Halala with the ex-wife, irrespective of permission of wife or husband for doing the same,  then the person who did  Halala and the Maulvi who performed  Nikah-e-Halala,  shall be punished for ten and five years of imprisonment respectively.

Notwithstanding clause:

 Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the said Code.

My Objections/Suggestions (Manzurul Haque)

Following observations of the Honourable Supreme Court in similar social criminal legislation could have been incorporated.

[Supreme Court directed that the state governments to instruct police "not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of criminal procedure code. Further, "The magistrate, while authorizing detention of the accused shall peruse the report furnished by the police officer in terms of Section 41 and only after recording its satisfaction, the magistrate will authorize detention," ]

Source:  manhaq@yahoo.com

URL: http://www.newageislam.com/islam,-women-and-feminism/manzurul-haque-for-new-age-islam/objections-and-suggestions--muslim-women-protection-of-rights-on-marriage-bill,-2017/d/114032

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