THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE)
NO. 20 OF 2019
[31st July, 2019.]
An Act 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.
BE it enacted by Parliament in the Seventieth Year of the Republic of India as follows:—
1. (1) This Act may be called the Muslim Women (Protection of Rights on Marriage) Act, 2019.
(2) It shall extend to the whole of India except the State of Jammu and Kashmir.
(3) It shall be deemed to have come into force on the 19th day of September, 2018.
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) “Magistrate” means a Judicial Magistrate of the first class exercising jurisdiction under the Code of Criminal Procedure, 1973, in the area where the married Muslim woman resides; and
(c) “talaq” means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.
DECLARATION OF TALAQ TO BE VOID AND ILLEGAL
3. Any pronouncement of talaq by a Muslim husband upon his wife, by words,either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.
4. Any Muslim husband who 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 shall also be liable to fine.
PROTECTION OF RIGHTS OF MARRIED MUSLIM WOMEN
5. Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for her and dependent children, as may be determined by the Magistrate.
6. Notwithstanding anything contained in any other law for the time being in force, a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.
7. Notwithstanding anything contained in the Code of Criminal Procedure, 1973,—
(a) an offence punishable under this Act shall be cognizable, if information relating to the commission of the offence is given to an officer in charge of a police station by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage;
(b) an offence punishable under this Act shall be compoundable, at the instance of the married Muslim woman upon whom talaq is pronounced with the permission of the Magistrate, on such terms and conditions as he may determine;
(c) no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person.
8. (1) The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019, shall be deemed to have been done or taken under the provisions of this Act.
A divorce by the husband is Talaq and it has its oral as well as written forms.
The oral form of Talaq can be effected in three modes viz. Talaq-e-Ahsan, Talaq-e-Hasan, Talaq-ul-Biddat or Talaq-e-Badai.
The first two forms are conditioned and they are accepted to be more civilized but while resorting to any of these two forms there are conditions precedent and it is not that the husband is at his free will to resort to any or these modes at any time and without assigning any reasons. If the husband feels that his wife does not care for him, she is incompatible, she does not listen to him, she does not love him, she refuses to cohabit with him, she engages in cruel behaviour, she is unfaithful or for any other reason, he has the right to give Talaq to his wife but by following certain procedure.
Firstly, he has to make it known to his wife about any of these reasons and she must be given time to change her behaviour. If by his direct conversation/persuasions she does not change her behaviour, the husband has to resort to the process of conciliation by informing to her father or any other parental relations. Two arbitrators, one from wife and one from the husband are required to be appointed and it shall be the duty of the Arbiters to bring in a settlement between the parties so that they live together happily and in spite of these efforts having been made if the discord still persists to an irreparable level there is no alternative but to separate and it is at this stage that the husband has the right to give Talaq to his wife. The stage of conciliation with the intervention of the Arbiters is a condition precedent for effecting Talaq either in Ahsan form or Hasan form. It will be seen that in all disputes between the husband and the wife the judges are to be appointed from the respective people of the two parties. These judges are required first to try to reconciliate the parties to each other failing which divorce is to be effected. Therefore, though it is the husband, who pronounces the divorce, he is as much bound by the decision of the judges as is the wife. This shows that the husband cannot repudiate the marriage at his will. The case must be first referred to two judges and their decision is binding.
Talaq must be for reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by the arbitrators, one from the wife’s family and the other from the husband’s. If the attempts failed, Talaq must be effected. In other words, an attempt at reconciliation by two relations; one each of the parties, is an essential condition precedent to Talaq.
Re-Conciliation-It is obvious that Muslim husband cannot repudiate the marriage at his will without reasons and at his mere whims and caprice and even Muslim law mandates pre-divorce reconciliation between the parties through appointment of two Arbitrators, who would act as Judges.
Maintenance-The husband’s liability to pay maintenance to a divorced wife under Section 3(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 ceases the moment iddat period gets over. He has to pay maintenance to her within the iddat period for the iddat period. But he has to make reasonable and fair provision for her within iddat period, which should take care of her for the rest of her life or till she incurs any disability under the Muslim Women Act. While deciding the amount, regard will be had to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband and the like circumstances. If the husband is unable to arrange for such a lumpsum payment, he can ask for instalments and the Court shall consider granting him instalments. Till the husband makes the fair and reasonable provision, the Magistrate may direct monthly payment to be made to the wife even beyond the iddat period subject to the fixation of the amount of fair and reasonable provision. It is further observed in para 63 (ii) and (iii) that orders passed under Section 125 of the Code prior to the enactment of the Muslim Women Act are not nullified by reason of coming into force of the Muslim Women Act. Such orders are binding on both sides and can be executed under Section 128 of the Code. The Muslim Women Act does not divest the divorced woman of the right to get maintenance under Section 125 of the Code vested in her by reason of orders of the competent Court passed prior to its coming into force. After commencement of the Muslim Women Act, a Muslim divorced wife cannot apply for maintenance under the provisions of Chapter IX of the Code. It is only under Section 5 of Muslim Women Act by agreement can the husband and the divorced wife approach a Magistrate under Chapter IX of the Code.