MEMRI Scholar Tufail Ahmad Drafts 'The Muslim Family Reforms Bill, 2018' To Address Religious And Legal Issues Affecting Muslim Families In India

Statement Of Concerns And Objectives By Tufail Ahmad, Senior Fellow At MEMRI

Introduction

Under its Reform In The Muslim World Project, the Middle East Media Research Institute (MEMRI) is publishing this draft of the Muslim Family Reforms Bill, 2018 to raise awareness among the public and the lawmakers of India about a host of issues concerning religious laws and practices among Indian Muslims. Many of these religious practices and laws, notably giving a Muslim husband the unilateral power to divorce his wife without assigning any reason, adversely affect the rights of Muslim women in India.

This power of unilateral divorce is exercised by the Muslim husband in three ways: One, he can send a letter issuing one talaq ("divorce") to his wife and wait for three months for the divorce to take effect; two, he can send one talaq each month for three months, thereby making the divorce valid; three, he can send a message pronouncing three talqat ("divorces") at once (known as talaq-e-biddat, or an instant triple divorce), making the divorce valid instantly.

The Government's Bill

The practice of talaq-e-biddat ("instant triple divorce") was seen as a form of psychological threat and mental cruelty to the Muslim wife. On August 22, 2017, the Supreme Court of India, hearing a number of petitions from affected women, "set aside" this form of divorce, making such divorce void and saving their marriages.[1] However, the two other forms of unilateral divorce are still legal. On December 28, the Lok Sabha, the lower house of the Indian Parliament, passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017.

Known popularly as the triple talaq criminalization bill, it became contentious because of the unilateral manner in which it was passed by the ruling Bharatiya Janata Party, which has a brute majority in the house. The government's bill does not quash the two other forms of unilateral divorce by a Muslim husband and therefore cannot be called a piece of reform legislation.[2] Unless the unilateral forms of divorce are removed from the law, the bill cannot be called pro-women either.

The government's bill cannot be a called reform legislation also for the following reasons. It stipulates that a Muslim husband will be jailed for up to three years for using the instant triple talaq, but requires that he must make a regular payment for the maintenance of the wife and children. A question that remains unanswered is how an imprisoned man can support the destitute wife and children. The bill also does not stipulate any maintenance or subsistence for a Muslim woman divorced through a court. It also does not offer any maintenance for a Muslim woman who is divorced through the two other unilateral forms of talaq which remain valid under the law.

Under the existing Indian laws, namely the Muslim Women (Protection of Rights on Divorce) Act, 1986, divorced Muslim women cannot claim alimony from husbands. The government's bill does not seek to amend this 1986 law. The issue of alimony for all divorced Muslim women who are economically destitute is important. This is especially so because the bulk of women who become victims of instant triple talaq come from the poor sections of Indian Muslims such as artisans, mechanics, labourers, tailors, butchers, and the like. Many women who were on the receiving end of the psychological threat of the instant triple talaq went to the courts to end this form of divorce, not for divorce.

In India, due to malpractices and the unsustainable burden on the judiciary's resources, courts take decades to decide divorce cases. A question also arises: since divorce has not taken place as per the Supreme Court order of August 22, 2017, how can courts decide alimony to the wife as intended under the government's bill? The risk is that Muslim women from the poor class will be running from police stations to courts without any actual advantage.

There does not appear to be a single reason to call the government's bill a piece of reform in Muslim family laws and practices. The government's bill also does not allow for an arbitration and mediation council, as is the legal provision in most democratic countries, in the divorce process involving Indian Muslims. At present, Muslim women are permitted to go to family courts or Islamic clerics to seek divorce.

But the matter is complicated because the Muslim husband is practically barred by the law in India from approaching courts to seek divorce. He is left to either write a divorce letter to his wife or to approach Islamic clerics and deliver his divorce before them in the form of a written letter or a video statement to be sent to the wife. The government's bill does not empower Muslim husbands to approach the court, thereby enabling them to continue to retain their power of unilateral divorce.

Politics As Lawmaking

India is the world's largest democracy, but this view gives out the misleading impression that Indian governments discuss prospective legislation with stakeholders, subject-matter experts, human rights organizations, and legal experts before a bill is introduced in parliament. This is certainly not the case with the Muslim Women (Protection of Rights on Marriage) Bill, 2017, which became partisan and divisive because the government of Prime Minister Narendra Modi decided against consulting with Muslim community leaders or women's rights groups.

It appears the law minister of India drafted the bill at his home, introduced it in the Lok Sabha, and ordered the Members of Parliament to vote in its favour, which they did, obeying the party high command. After the government used its majority to bulldoze the bill through the house, senior advocate Indira Jaising remarked: "Shameful display of brute force passing the... Bill turning Muslim husbands into criminals..."[3] There are concerns that marriage and divorce, being a civil matter, must not become part of the criminal law, which could destroy Muslim families in India.

The government of Prime Minister Modi refused to discuss the bill with stakeholders.

The only valid argument from the government is: The instant triple talaq was an act of psychological cruelty to Muslim wives. In such a case, it could have introduced a one-sentence amendment in the Domestic Violence Act of 2005, making it an act of mental cruelty. But the government is arguing before the public that its bill is a piece of reform. Leading Muslim lawmakers from the ruling party, such as India's Junior Minister for External Affairs M.J. Akbar, deliver speeches, even inside the parliament, about Muslim women's struggle for rights, but they deliberately avoid discussing the government's bill and its shortcomings. This also contradicts the government's promise to the Supreme Court.

On May 21, 2017, the Supreme Court reiterated that Muslim husbands do not have a judicial forum to go to for divorce. Then-Attorney General Mukul Rohatgi, the top law of the government, told the judges: "If the practice of instant divorce (triple talaq) is struck down by the court, then...  [The government] will bring a law to regulate marriage and divorce among the Muslim community."[4] It is clear that the government's triple talaq criminalization bill is not meant "to regulate and divorce among the Muslim community" and is therefore not a piece of reform.

The unwritten motive of the ruling party in writing the bill seems to be political. Several hot-button Muslim issues, namely the triple talaq, polygamy, and the Hajj subsidy, that have emerged in Indian society recently are politically potent and have, for election campaign purposes, become effectively Hindu issues, subjects around which it is easier for the prime minister's Bharatiya Janata Party to mobilize right-wing Hindu voters. No legislation can be called a piece of reform in the Muslim family laws of India if it does not require a Muslim husband to go to court to seek divorce. There are other Muslim issues that the government does not intend to address, namely the practices of polygamy and halala (the shari'a-based requirement that a divorced woman marry another man and get divorced in order to remarry the husband who divorced her).

To address the above concerns and shortcomings of the government's bill, and to raise the level of debate on Muslim family issues in India, this writer drafted the Muslim Family Reforms Bill, 2018, and in doing so was assisted and advised by Ms. Smita Dikshit, a legal counsel practicing in the Supreme Court of India and a Distinguished Member of the International Council of Jurists, UK. This Muslim Family Reforms Bill, 2018 addresses a range of issues affecting Muslim families in India. It is also written keeping in mind the fundamental rights guaranteed to the citizens and non-citizens of India, such as the Right to Equality under Article 14 and the Right to Religion under Article 25, by the Constitution of India.

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The Muslim Family Reforms Bill, 2018

BILL

To protect the rights of Muslim women, men and children and to remove anomalies that prevent equal protection of their rights as guaranteed by the Constitution of India;

To address shortcomings in existing Muslim family laws and to override them;

To replace The Muslim Personal Law (Shariat) Application Act, 1937;

To replace The Dissolution of Muslim Marriage Act, 1939;

To replace The Muslim Women (Protection of Rights on Divorce) Act, 1986;

And to provide for matters connected therewith or incidental thereto.

Be it enacted by Parliament in the Sixty-Ninth Year of the Republic of India as follows.

 

CHAPTER 1

APPLICABILITY AND DEFINITIONS

1. Introductory,

(1) This Act may be called the Muslim Family Reforms Act, 2018.

(2) It shall extend to the whole of India, and to the state of Jammu & Kashmir when ratified by the state legislature.

(3) It shall come into force on such a date as the Government may, by notification in the Official Gazette, appoint.

(4) It shall remain in force until the Government enacts a Uniform Civil Code as directed to do so under Article 44 of the Constitution.

(5) Save as otherwise expressly provided in this Act,

(a) any text, rule or interpretation of Muslim laws or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law, or part thereof, in force immediately before the commencement of this Act shall cease to have effect insofar as it is inconsistent with any of the provisions in this Act.

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

(a) "Muslim" means any person professing faith in Islam, irrespective of any doctrinal persuasion or belonging to a sect or sub-sect thereof.

(b) "Nikah" means marriage between a Muslim man and a Muslim woman – whether solemnized customarily, formally, informally, or by electronic or other means.

(c) "Mehr" means any amount of money, given in cash or kind by an intending spouse to solemnize a marriage, or for any other purpose before marriage.

(d) "Talaq" means divorce – including all forms of divorce, whether formal or informal, prevalent among various sects or sub-sects of Muslims.

(e) "Halala" means any practice or the like thereof in which a divorced Muslim, male or female, must marry another person to remarry the divorced spouse.

(f) "Muta" means a marital bond solemnized or practiced for a specific time period and includes all marriages which are not "Nikah" as defined in this Act.

(g) "Court" means a Family Court which deals with marriage, divorce and other matters concerning families.

(g) "Magistrate" means a Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973, in the area where a married Muslim resides or where the Nikah was solemnized.

(h) "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.

 

CHAPTER 2

SOLEMNIZATION OF NIKAH AND DECLARATION OF TALAQ

3. A Nikah, howsoever solemnized and agreed to by the couple, whether orally or otherwise, must be registered under this Act, failing which any dispute arising out of such a marital bond shall be adjudicated under the Special Marriage Act, 1954.

4.(i) A talaq, given by whatever means and by whichever prevalent practices by either spouse, shall be void and illegal if it is not delivered before a Court hears the spouses, and

(ii) The spouses have gone through the arbitration and mediation council in the Family Court and failed to reach an amicable resolution, and

(iii) Upon hearing the spouses and having concluded that the marriage is irreconcilable, the Court permits them to pronounce talaq in court as per their religious beliefs and practices – according with the fundamental right to religion under Article 25 of the Constitution; and

(iv) Such a talaq shall be valid only when the requirements in (i) to (iii) are fulfilled and the Court issues a decree of divorce.

 

CHAPTER 3

PROTECTION OF RIGHTS OF WOMEN, MEN AND CHILDREN

5. The amount of Mehr shall not exceed one kilogram of rice as a token of religious obligation, availing of the fundamental right to religion under Article 25 of the Constitution, pre-empting demands of dowry by a spouse before Nikah.

6. Children, legitimate or illegitimate, born out of Nikah or outside marriage of Muslim couples shall inherit property equally irrespective of their gender.

7. In matters concerning Muslim families or matters attendant upon such a marital bond, or any other matter disputed, the witness of a Muslim male shall be equal to that of a Muslim female, and vice versa.

8. The rights mentioned in Sections 6 and 7 shall be protected by the fundamental right to equality under Article 14 of the Constitution.

9. All forms of remarriage, including marriages such as Halala and Muta, which are practised or solemnized without a decree of talaq from a Court, shall be void and illegal, and shall be a punishable offence. The provisions of the Indian Penal Code, 1860, shall apply accordingly.

10. The Court shall issue a decree of talaq only after having determined the amount of subsistence or maintenance for the children and the destitute spouse. This amount can be determined under the Criminal Procedure Code, 1973, or by the mutual consent of the parties.

11. Any threat or practice of talaq referred to in Section 4 of Chapter 2 by a spouse outside court shall be deemed as an act of mental cruelty, and shall be adjudicated by a Magistrate under the Domestic Violence Act, 2005.

 

Notes & References

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