Muslim Women (Protection Of Rights On Marriage) Act 2019- Untested Questioning Protection Of Whom?

Neema Noor
2 Aug 2020 7:26 AM GMT
Muslim Women (Protection Of Rights On Marriage) Act 2019- Untested Questioning Protection Of Whom?
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Recently Union Minority Affairs Minister, Mukhtar Abbas Naqvi made headlines by announcing August 1st to be celebrated as Muslim Women Rights Day on account of the anniversary of the enactment of the Muslim Women (Protection of Rights on Marriage) Act 2019, where pronouncement of Triple Talaq by Muslim husband has been penalized. Interestingly criminalization of Talaq-al biddah (triple talaq in one stroke) was not the outcome of majority judgment of the famous Shayara Bano case[1], but only held that this form of Talaq is not in conformity with the Sharia and constitutional principles. But the government in haste with no consultation with the concerned stakeholders came out with this legislation. The legislative intent of the said law was amelioration of the plight of Muslim women and interestingly the question that arises here is "was triple talaq the sole issue the Indian Muslim women were haunted with?" Astonishingly the words of the honorable Minister reflects so, when he asserted that the government ensured gender equality and strengthened constitutional, fundamental and democratic rights by bringing law against social evil of triple talaq. What goes sinking is the fact that , the Minister is addressing to one of the most vulnerable section of the society, the Indian Muslim Women and this statement is supported by studies that have highlighted the lowest status of the Muslim women amongst the counterparts in terms of socio-economic and political measures. As per the 2011 statistics, the literacy rate of Muslim women is only 51.9% which is lower than the national average of female i.e. 65.46%. In this scenario the question that revolves is, will mere criminalization of Triple Talaq improve the deplorable socio-economic status of Muslim women in India? The fact is that the said law will push her to more victimization making her struggle within the institution of unfavorable marriage for two reasons. Firstly the husband will find it convenient to not pronounce talaq and easily desert her, pushing her to utter destitution. Secondly, the Muslim woman will be locked in the unwanted marital status with no scope to exit and no way to remarry. This same dilemma was witnessed in the pre independence period but in a different context where women had no right to divorce. The Hanafee law was rigidly followed in India which has the effect of considerably restricting women's right to seek dissolution of marriage by the qadi, particularly by a non-Muslim judge. After her marriage, a woman facing situations like the disappearance of her husband, lunacy, his impotence, his refusal to provide maintenance in spite of his ability to do so, etc., was left with virtually no remedy for the dissolution of her marriage. Many women therefore sought refuge in conversion to another faith. This grave situation attracted attention of some Muslim organisations and scholars in India and they began thinking of ways and means to arrest the tendency among the Muslim women to renounce Islam just because their religious law did not allow them to lawfully get rid of their husbands. It was found that there was no way but to secure legislation empowering courts to dissolve Muslim women's marriages in specified circumstances. Finally the leaders of the Jamiat prepared the Bill which was introduced in the central legislature by Mohammed Ahmad Kazmee in 1936 and led to the enactment of a new historic legislation Dissolution of Muslim Marriage Act, 1939.[2] Unfortunately the law enacted could not be internalized much effectively even now, as Muslim women as a litigant has many hurdles to jump on. So she probably chose to suffer rather than fight. Interestingly the recent law will also be faced with the same tragic fate as to the worse it shuts the option of reconciliation pushing her to more challenges. The truth is that the new law has no ratios evolved yet from the courts making it too early to test the impact and utility of the said legislation. So what the Minister tried to portray by declaring Muslim Women Rights Day was indeed a sheer paradox in this context.

Now the current socio-political scenario has vastly changed. The question is no more reforms in the Muslim law and gender equality but the question is now the very survival of Muslim women as a dignified Indian citizen. They were forced to occupy the streets to protest irrespective of their socio-economic status, against the government's controversial Citizenship (Amendment) Act, 2019 (CAA) and the National register of Citizens (NRC) whereby proving that Muslim women are no less the warriors to fight for a genuine cause. One of the most wide spread agitation seen ever since independence was propelled by Muslim women demanding not their religious rights but constitutional rights guaranteed under the constitution. So instead of August 1st , the day to be marked as Muslim Women Rights Day should be December 15th , when the brazing winter of 2019 could not stop the spirit of the Muslim Women of the country especially of Shaheen Bagh and many to save the principles of "Equality and Secularism" of the world's largest democracy. Lastly what we want is a revolution and the revolution that is meant here is as described by Bobby Seal "which needs to re-evolve political, economic and social justice and power back into the hands of people, preferably through legislations and policies that make human sense."
Views are personal only.

Neema Noor Mohamed, Assistant Public Prosecutor, Mahila Court, Govt of NCT of Delhi.

Editorial Assistant, Dispelling Rhetorics : Law of Divorce and Gender Inequality in Islam, Published by Indian Law Institute, New Delhi.

[1] (2017) 9 SCC 1

[2] Furqan Ahmad,"Contribution of Maulaanaa Ashraf Ali Thaanavee to the Protection and Development of Islamic Law in the Indian Subcontinent" VI Islamic Comparative Law Quarterly 72 (1986).

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