While the Supreme Court has asked Parliament to enact a law on how divorces can take place under Muslim Personal Law, activists have for long been demanding the codification of Muslim Personal Law. Bharatiya Muslim Mahila Andolan, one of the petitioners in the triple talaq case, has already worked on a Draft Muslim Family Law, which does away with verbal divorce and polygamy and has also stipulated the amount to be paid to a woman as Mehr during her wedding.
The draft law is being called the Muslim Marriage and Divorce Act and BMMA has been working on it since 2007. This is the first time that Islamic laws pertaining to marriage, divorce and maintenance have been codified, the body says. The BMMA is hoping that the government uses this draft law to improve conditions of Muslim women in the country.
The draft law stipulates that the bride should not be younger than 18 years of age and the bridegroom 21 years of age, and neither party should have a living spouse. Islamic laws allow a Muslim man to legally have upto four wives. The draft law also stipulates how much the Mehr should be. Mehr is the amount paid by the groom to the bride during the wedding. The draft states that the minimum amount of Mehr shall not be less than one full annual income of the groom.
It further states that if the stipulated Mehr amount is not paid within six months of marriage, then the groom will have to pay double the amount. In present circumstances, some grooms give an amount as less as Rs 786 as Mehr. The draft law virtually abolishes the verbal divorce and triple talaq way of giving divorce. It states that only the Talaq-e-Ahsan method of divorce should be followed. In this method, divorce is pronounced once and then the couple waits for three months in what is seen as a period to sort out differences. This form of divorce keeps the option of a reunion open and the husband can reverse the process of divorce if both parties agree.
The draft also imposed heavy penalty on offenders, including cancelling of a Qazi’s licence, for repeat offences in failing to ensure fulfillment of conditions during marriage. It also calls for action under the Code of Criminal Procedure for all those who fail to pay maintenance.
Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act 1936. This law makes the Shariat applicable on Muslims. However, this law is not codified and is open to interpretations. Women’s groups claim that these interpretations are prone to be used against women. Various women’s groups have been demanding that the Muslim Personal Law be codified so that its provisions are clear to everyone.
However, the conservative clergy has claimed that codification is tantamount to tampering with the Sharia and the Islamic way of life. The state also seems not very keen on taking up the issue for fear of antagonising the clergy, many feel.
“In the absence of a codified law, customary practices which are divergent from the values and principles of the Quran have emerged. New codes have been introduced globally with the hope that they will introduce the rule of law in family matters and end arbitrariness and variances in judicial decisions. In India, there is a need to have a comprehensive codified family law to ensure justice within the family,” the preamble to the draft law states.