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MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019

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Pre. ACT NO. 20 OF 2019

ACT NO

[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:—


S.1 Short title, extent and commencement

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.


S.2 Definitions

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 (21 of 2000);

(b) “Magistrate” means a Judicial Magistrate of the first class exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of

S.3 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.


Legal Comments

S.4 Punishment for pronouncing talaq

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.


S.5 Subsistence allowance

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.


Legal Comments

S.6 Custody of minor children

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.


Legal Commentary on Section 6 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Introduction

Section 6 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, primarily addresses the custody rights of Muslim women and their minor children in the context of talaq. The section aims to safeguard the interests of divorced Muslim women and their children by establishing clear legal entitlements and procedures.

What does Section 6 Say

Section 6 explicitly states that, notwithstanding any other law, a married Muslim woman shall be entitled to custody of her minor children following the pronouncement of talaq by her husband. The manner of custody is to be determined by a Magistrate, ensuring judicial oversight and protection of the woman’s rights.

Essential Ingredients

  • Entitlement: The section grants a Muslim woman the right to custody of her minor children.
  • Event Trigger: The custody right arises upon the pronouncement of talaq by the husband.
  • Superseding other laws: The provision overrides any conflicting law for the time being in force.
  • Judicial Discretion: The custody is to be determined in a manner prescribed by the Magistrate, emphasizing judicial discretion and welfare considerations.

Scope of Section

  • Applicability: The section applies to all Muslim women who have been divorced through talaq.
  • Children: It pertains specifically to the custody of minor children, emphasizing their welfare.
  • Legal Override: It overrides other existing laws concerning custody, ensuring the woman’s rights are prioritized post-talaq.
  • Procedure: Custody determination is to be made by a Magistrate, ensuring a formal legal process.

Punishment for Section

While Section 6 itself does not prescribe punishment, it is part of the broader Act that criminalizes the act of pronouncing talaq (including triple talaq). Offenses related to talaq can attract imprisonment up to three years and fines, as per Sections 3 and 4 of the Act [Source: ""].

Legal Comments

  • Custody Rights - Section 6 affirms that Muslim women are entitled to custody of their minor children post-talaq, reinforcing their legal rights [Source: ""].
  • Override of other laws - The section explicitly states it overrides any other law, emphasizing the importance of the Act in safeguarding women’s rights [Source: ""].
  • Judicial Discretion - Custody is to be decided by a Magistrate, highlighting the role of judicial discretion in welfare-based custody decisions [Source: ""].
  • Protection of Minor Children - The provision prioritizes the welfare and custody of minor children, aligning with principles of child welfare laws [Source: ""].
  • Legal Safeguard - The section provides a legal safeguard for women against arbitrary custody denial post-talaq [Source: ""].
  • Cognizable Offense Context - While custody is a civil right, the act of pronouncing talaq is criminalized, ensuring enforcement of the law [Source: ""].
  • Superseding conflicting laws - The clause "notwithstanding anything contained in any other law" ensures the Act’s provisions take precedence, strengthening women’s custody rights [Source: ""].
  • Judicial Determination - The manner of custody determination by the Magistrate ensures a case-specific approach focused on the child's best interest [Source: ""].
  • Legal Protection - The provision acts as a protective measure against potential misuse of custody rights or arbitrary decisions [Source: ""].
  • Relation to Talaq - Custody rights are directly linked to the pronouncement of talaq, emphasizing the legal consequences of divorce proceedings [Source: ""].
  • Enforcement Mechanism - The Act provides for enforcement through judicial proceedings, ensuring compliance and protection [Source: ""].
  • Post-talaq Rights - The section clarifies that custody rights are conferred immediately following talaq, preventing delays or disputes [Source: ""].
  • Legal Certainty - The explicit statutory recognition provides legal certainty to Muslim women regarding custody rights [Source: ""].
  • Alignment with Welfare principles - The determination by Magistrate aligns with welfare principles, prioritizing the child's best interests [Source: ""]].
  • Legal Recourse - Women can approach courts for custody, ensuring legal recourse and protection [Source: ""].
  • Impact on Custody Disputes - The provision aims to reduce disputes by establishing clear rights and procedures post-talaq [Source: ""].

Note: This commentary synthesizes information from the provided sources, emphasizing the legal framework and protective intent of Section 6 within the Act.

S.7 Offence to be cognizable, compoundable, etc.

7

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(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;

Legal Commentary on Section 7 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Introduction

Section 7 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, delineates the provisions related to bail and arrest procedures for offences under the Act, emphasizing the criminal nature of offences such as pronouncement of talaq. It underscores the cognizable, non-bailable, and compoundable nature of these offences, aligning with the legislative intent to deter arbitrary divorce practices and protect Muslim women’s rights.

What does Section 7 Say

Section 7 states that:- Offences under the Act are cognizable, meaning police can arrest without warrant.- The offences are non-bailable, restricting the courts from granting bail as a matter of right.- The offences are compoundable only at the instance of the Muslim woman concerned.- Specifically, subsection (c) provides that no person accused of an offence punishable under the Act shall be released on bail unless the Magistrate, after hearing the married Muslim woman upon whom talaq was pronounced, is satisfied that there are reasonable grounds for granting bail.

Essential Ingredients

  • The offence must be punishable under the Act, particularly offences related to pronouncement of talaq.
  • The accused must be a person alleged to have committed such an offence.
  • The Magistrate’s satisfaction must be based on hearing the married Muslim woman upon whom talaq was pronounced.
  • The Magistrate must find reasonable grounds to grant bail, considering the circumstances of the case.

Scope of Section 7

  • It applies to all offences under the Act, including triple talaq and related offences.
  • The section restricts the grant of anticipatory or regular bail, emphasizing the seriousness of offences.
  • It mandates a hearing of the Muslim woman before granting bail, ensuring her rights are considered.
  • The provision is designed to prevent misuse of the Act and to reinforce its deterrent effect against unlawful divorce practices.

Punishment for Offences under Section 7

  • The Act prescribes imprisonment for up to three years and fines for pronouncement of triple talaq.
  • The offences are classified as cognizable, enabling police to arrest without warrant.
  • The non-bailable nature signifies that bail is not a right but a matter of judicial discretion, subject to the conditions in Section 7.

Legal Comments

In summary, Section 7 of the Act enforces a strict legal regime against unlawful pronouncements of talaq, emphasizing procedural fairness, judicial oversight, and the protection of women’s rights, while aligning with constitutional principles of liberty and justice.

S.8 Repeal and savings

8

(1) The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 (Ord. 4 of 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 (Ord. 4 of 2019), shall be deemed to have been done or taken under the provisions of this Act.


Legal Comments

Footnotes and sources cited in square brackets correspond to the provided source list, formatted as [Source ID].

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