LAWS PASSED IN PARLIAMENT IN ITS RECENT SESSION

REGARDING WOMEN’S SAFETY AND WELFARE

This year there were no such major developments in the ministry of women and child
development during the recent parliament session, although the government assures
that this one of the top most priority of the present government.

One of the very important changes that were done was to repeal and replace the India
Penal Code (IPC), the Code of Criminal Procedure (CrPc) and the Indian Evidence Act
which were enacted during the British Rule in India. The acts were reformed and has
been newly introduced and implemented as the Bhartiya Nyay Sanhita, 2023, the
Bhartiya Nagrik Suraksha Sanhita, 2023, and the Bhartiya Sakshya Bill, 2023
respectively.

One of the very significant changes made in the Bhartiya Nyay Sanhita regarding
women’s safety and welfare is that- it proposes 10 years imprisonment for sexual
intercourse with women on false promise of marriage which is a common form of
deception and exploitation.

Some major development made in the Bhartiya Nagrik Suraksha Sanhita is that it
promotes the use of technology for trials, appeals and recording deposition, allowing
video conference for proceedings; this implies that video recording of statement of
survivors of sexual violence is compulsory, which can help on preserving evidence and
preventing coercion or manipulation, which works as a major change for betterment of
women welfare.

Besides this laws past and the present financial year, there were a few other laws that
were passed by the parliament for women’s safety and welfare. Some of these are
discussed as follows-

ü The Prohibition of Child Marriage (Amendment) Bill, 2021-

This bill was introduced and passed by the Lok Sabha under the flagship of the
Ministry of Women and Child Development which amends the Prohibition of Child
Marriage Act, 2006. To increase the minimum age of marriage of females to 21
 yrs. Further the bill will override any other law, custom or practice. About a
quarter of 20-24 yr old women in the country are married before the age of 18 yrs
despite that being the minimum age of marriage since 1978. The limited success
pf the current law raises the question whether and increase in minimum age
would have any significant impact on the reducing the incident of child marriage,
yet it does significantly impact on the women population of the country to their
advantage.

ü The Surrogacy (Regulation) Act, 2021-

Under this Act it provides that a woman who is a widow or a divorcee between
the age of 35-45 yrs or a couple, define as a legally married woman and man,
can avail surrogacy if they have a medical condition necessitating this option. It
also bans commercial surrogacy which is punishable with a jail term of 10 yrs
and fine of up to Rs. 10Lakhs. The Law allows only altruistic surrogacy where no
money exchanges hand and whereof surrogate mother is genetically related to
those seeking a child.

Thus, these were some of the major developments regarding women’s safety and
welfare in the parliament in the last couple of years. As regards to laws passed in the
Assam State Assembly for the betterment of women are briefly discussed a follow-

ü To establish and constitute a teaching, non-affiliating and residential Women’s

University in the State of Assam at Jorhat. The bill was first passed in the
year 2013 and then amended in 2021.

ü The Assam Public Safety (Measures) Enforcement Bill of 2023 will make
cameras for surveillance compulsory at places where people get together.
This is a huge step taken towards the safety of women in particular and public
at large.

ü The Assam Government is also planning to introduce bill in the Legislative

Assemble to propose law to ban polygamy in the state which comes under
significant provision of the Uniform Civil Code (UCC).
Triple Talaq

Triple Talaq is a form of marriage dissolution in Muslim Law whereby a husband can
give divorce to his wife by stating talaq three times in one row. The presence of wife is
not required she can be given talaq without assigning valid reason. The term ‘Talaq’
refers to the repudiation of marriage by husband under Muslim Law. The practice of
triple talaq has been prevailing since ancient times in India.

Triple Talaq or Talaq-e-Biddat which has been practiced in India since 1400 Centuries
under which a Muslim man can divorce his wife nearly by pronouncing Talaq word thrice
irrespective of his wife’s presence. This practice has been criticized by government,
judiciary and many NGOs working for human rights. However the ban on such
derogating practice has been resisted by All India Muslim Personal Law Board
(AIMPLB) on the grounds that triple talaq is a major constituent of Muslim Personal
Laws, governed under Shariat Law, 1937. Existing since the British Colonial Period
recognized by both the Supreme Court of India and The Constitution of India and
fearing that banning such practice would lead to development of Uniform Civil Code,
which will affect the very nature of there religion and also their freedom to practice their
religion freely. But one thing we all should realize personal laws are derived from
customs. Once custom becomes widely prevalent, it takes the form of law and if such
customs are evil, derogating, violating the human rights, then such customs should be
banned and should not be allowed to be part of personal laws.
History

Historically, the rules of divorce were governed by the Sharia, as interpreted by

traditional Islamic Jurisprudence, although they varied depending on the legal school
Triple Talaq is 1400 year old practice among Sunni Muslim. This is not mentioned in
Quran and the Sharia Law. As per Quran, marriage is intended to be unbounded in the
time the relationship between the spouses should ideally be based on love and th
important decision concerning both spouses should be mase by mutual consent.

In the opinion of classical jurist variously classified pronouncement of Talaq as forbidden

and reprehensible unless it was motivated by a compelling cause such as impossibility
of cohabitation due to irreconcilable conflict, though they did not require the husband to
obtain court approval or provide a justification.

In the legal school view is that a triple talaq performed in single meeting constituted a
‘major’ divorce, while other classified it as a ‘minor’ it reflects pre Islamic divorce
customs, rather than Quaranic principles, though legally valid form of divorce in
traditional Sunni juriprudence, Mohammad denounced the practice of Triple talaq and
the second Caliph Umar punished husbands who made use of it.

Legal Standing

The present scenario of validity of Triple Talaq can be accessed from the most recent
case of Shayra Banu vs Union of India and ors, where a writ petition has been filed by
Shyra Banu for assailing the divorce pronounced by her husband, the Supreme Court of
india held the practice of Triple Talaq as invalid, unconstitutional.

Reasons-

That seems all forms of talaq recognized and enforced by Muslim personal law are
recognized and enforced by the Muslim Personal Law Act, 1937. It would necessarily
include Triple Talaq when it comes to Muslim Personal law applicable to Sunnis in India.

Therefore it is wrong to say that Section 2 of 1937 Act doesnt recognize or enforce
Triple Talaq. It clearly does both because the Section makes Triple talaq ‘The rule of
decision and cases where the parties are Muslim’. And 1937 Act is a law made by the
legislature before the constitution came into force, it would fall within the ambit of the
expression ‘Laws in force’ in Article 13(3)(b) and it would be by Article 13(1) if found to
be inconsistent with the provision of Part III of the constitution, to the extent of such
inconsistency, therefore has been declared void and unconstitutional. The constitutional
validity of the sinful practice of triple Talaq can be challenged on the grounds of Article
14,15 and 21.

Assessment of Current Situation

Although in August 2017, the Supreme court of India declared Triple Talaq which enable
Muslim man to instantly divorce their wives, to be unconstitutional and the parliament
drafted The Muslim Women (Protection of Rights on Marraige) Act, 2019 which
criminalizes Triple Talaq yet in reality, on the ground has not changed after the
judgement. Even after five years since Supreme Court’s invalidation of triple talaq, the
women petitioner who were abandoned by their husbands continue to live a life of half
divorcees. Muslim man has found other ways to get around the ban. Cases of torturing
the wife have risen in order to obtain khula. The number of cases where Muslim man
abondened their wives has also increased since the judgement.