The Muslim Women (Protection of
Rights on Marriage) Bill 2017, which
is set to be tabled in Parliament to-
day, is riddled with so many internal
contradictions that one is left won-
dering what purpose it would serve.
The stated intent of the Bill is “to
protect the rights of married Muslim
women and to prohibit divorce by
pronouncing talaq by their hus-
bands”. Talaq here is dened as “ta-
laqebiddat or any other similar
form of talaq having the eect of in-
stantaneous and irrevocable di-
vorce”. The draft law goes on to de-
clare, in Sections 3, 4 and 7, that the
“pronouncement” of talaqebiddat
by a person upon his wife in any
form whatsoever “shall be void and
illegal”, and whoever “pronounces”
such a talaq “shall be punished with
imprisonment for a term which may
extend to three years and ne”, and
the oence would be “cognizable
and nonbailable”.
This amounts to a gross misread-
ing of the August 2017 Supreme
Court judgment which neutralised
the legal eect of instant talaq and
rendered it bad in law. In other
words, the pronouncement of talaq-
ebiddat does not dissolve the mar-
riage, and this is the law of the land
under Article 141.
Several contradictions
But the proposed Bill presumes that
the “pronouncement” of talaqebid-
dat can instantaneously and irrevoc-
ably dissolve the marriage, and pro-
ceeds to “void” it in Section 3.
Nonetheless, this begs the question
of how after rendering talaqebiddat
inoperative in Section 3, its nugatory
pronouncement can be considered a
cognisable and nonbailable oence
in Sections 4 and 7. Can a law crimi-
nalise an act after conceding that it
does not result in a crime?
However, the most glaring internal
contradiction is found in Sections 5
and 6 which discuss postdivorce is-
sues such as a “subsistence allo-
wance” for the woman upon whom
instant talaq “is pronounced” and
the “custody of her minor children”
as if her marriage is dissolved by the
mere pronouncement of talaqebid-
dat. How could the authors of this
Bill talk of postdivorce matters ig-
noring the fact that the pronounce-
ment (instant talaq) has already been
voided in Section 3 and cannot result
in a divorce?
The Pakistan ordinance
With so many inconsistent provi-
sions, the only option before the
Centre is to withdraw the Bill imme-
diately. Instead, in its place, it may
consider something similar to Sec-
tions 7(1), (3), (4) and (5) of Pakistan’s
Muslim Family Laws Ordinance,
According to these clauses, ‘any
man who wishes to divorce his wife
shall, after the pronouncement of ta-
laq in any form whatsoever, give the
chairman of the stateappointed Un-
ion Council notice in writing of his
having done so, with a copy submit-
ted to the wife. Within 30 days of re-
ceipt of notice, the chairman should
constitute an arbitration council that
comprises himself and a representa-
tive of each of the parties, for the
purpose of bringing about a reconci-
liation between the parties. And ta-
laq shall not be eective until the ex-
piration of 90 days from the day on
which notice is delivered to the chair-
man. If the wife is pregnant at the
time of the pronouncement, talaq
shall not be eective until the termi-
nation of her pregnancy’.
It may be noted here that the Mus-
lim Family Laws Ordinance does pre-
scribe, in Section 7(2), a simple im-
prisonment of one year. But this is
not for the mere “pronouncement”
of talaq, as envisaged in the Centre’s
draft law. The husband will incur this
punishment only when he pro-
nounces talaq with an intention to di-
vorce but fails to inform the chair-
man and the wife (in writing) about
his pronouncement.
A case in the U.S.
As is obvious even in Pakistan, the
mere pronouncement of talaqebid-
dat neither dissolves the marriage
nor is it a cognisable oence.
This was proved beyond doubt in
the interesting case of Tahira Naseer,
a Pakistani citizen, decided by the
‘Court of Appeals of Virginia’, in Au-
gust 2012. According to court re-
cords, Tahira was divorced by her
husband, Nasir Mehmood Khan,
through talaqebiddat, without any
written intimation to the chairman of
the Union Council.
The background to this case is as
follows. In August 2000, Tahira mar-
ried Nasir in Pakistan. Within a year,
he told her three times that ‘he had
divorced her pursuant to Islamic
law’. Believing that she was divorced,
she returned to her parental home
and broke o all contact with Nasir,
considering him to be her former
husband. Then, in 2003, she married
Hamid Mughal, who was a U.S. resi-
dent, in Pakistan, with another mar-
riage ceremony, being held the next
year in Fairfax County, Virginia, U.S.
But this marriage too did not last
long, and in November 2009, ended
in them getting separated.
While waiting to seek a legal di-
vorce in Virginia, Hamid discovered
that Tahira had been married earlier
and not obtained a legal divorce in
Pakistan. He sought annulment of
the marriage on grounds of bigamy
which was granted by a U.S. trial
court on the testimony of Ellahi, a Pa-
kistani lawyer brought in by Hamid
as an expert witness.
Tahira appealed against the ver-
dict. But the Court of Appeals of Vir-
ginia rejected her arguments saying
that the trial court was right in ac-
cepting Ellahi’s testimony to arrive at
its decision and to treat her rst mar-
riage as legally intact because, as a
Pakistani lawyer, Ellahi was a “better
qualied expert” to interpret the Pa-
kistani law than Tahira’s own witness
who was not a lawyer. Ellahi had tes-
tied that ‘in order to be divorced in
Pakistan, a person had to obtain a le-
gal divorce, not just a religious one’.
These facts and arguments make it
clear that the Centre has no legal ba-
sis to justify the Muslim Women (Pro-
tection of Rights on Marriage) Bill
It negates the recent Supreme
Court ruling by unwittingly favouring
the All India Muslim Personal Law
Board’s medieval view that the pro-
nouncement of talaqebiddat breaks
the marriage, and, therefore, needs
to criminalised.