By Justice Markandey Katju, former Judge of Indian Supreme Court, and Ms. Rubina Mumtaz, advocate, Lahore High Court, Pakistan
There have been significant changes in the laws in India, which we believe should be emulated in Pakistan. Some of these are mentioned below :
(1) Grant of maintenance to divorced Muslim women.
All over the world maintenance is granted to divorced women, payable by the husband,
But reactionary sections among the Muslims took the stand that this was against the sharia law.
The Indian Supreme Court held that a Muslim husband has to pay maintenance to his wife if he divorces her, vide Mohd Ahmed Khan vs Shah Bano Begum, 1985
This was a progressive and humanitarian judgment, and should have been welcomed by the entire Muslim community of India, for how could a divorced woman, who may be having small children, and probably without an independent income, survive without maintenance ?
But a hue and cry was created by Muslim clerics and other reactionaries that granting maintenance to a divorced woman was against the sharia,. Consequently, Prime Minister Rajiv Gandhi, fearing losing the Muslim vote bank, got the judgment annulled by legislation.
However, subsequently in Daniel Latifi vs Union of India, 2001, it has again been held that a divorced Muslim wife must be paid maintenance by her husband, and that is still the law in India today
In Pakistan a divorced Muslim woman is not entitled to maintenance. We believe it is high time that this legal position be changed, and Daniel Latifi’s judgment be followed in Pakistan too.
(2) There are mainly two kinds of talaaq ( divorce) among Muslims, talaaq al ahsan, and talaaq al biddat ( or triple talaaq ).
In the former, the word talaaq is pronounced once by the husband for the first time, then a second time after a month, and for the third time after another one month, the divorce being complete only after the third pronouncement. This interval gives the couple time for a reconciliation,
On the other hand, in talaaq al biddat ( or triple talaaq ) the divorce is done immediately at one sitting ( or even by a letter), thus giving no time for a possible reconciliation.
One of us ( Justice Katju ) strongly criticized triple talaaq in a TV panel discussion
The Indian Supreme Court subsequently held triple talaaq to be illegal, vide Shayara Bano vs Union of India, 2017
We are of the opinion that this decision of the Indian Supreme Court in Shayara Bano’s case outlawing triple talaaq should be welcomed, and should be followed in Pakistan too
(3) The Bhartiya Nyaya Samhita, is a new Penal Code in India, which after having been passed by the Indian Parliament, came into effect on 1.7. 2024. It has 20 new offences apart from those in the Indian Penal Code, and 19 provisions in the repealed IPC have been dropped.
The punishment of imprisonment has been increased for 33 offences, and fines have been increased for 83 offences. A mandatory minimum punishment has been introduced for 23 offences. A sentence of community service has been introduced for six offences.
Offences against the body: The BNS retains the provisions of the IPC on murder, abetment of suicide, assault and causing grievous hurt. It adds new offences such as organised crime, terrorism, and murder or grievous hurt by a group on certain grounds.
Sexual offences against women: The BNS retains the provisions of the IPC on rape, voyeurism, stalking and insulting the modesty of a woman. It increases the threshold for the victim to be classified as an adult, in the case of gang rape, from 16 to 18 years of age.
Offences against property: The BNS retains the provisions of the IPC on theft, robbery, burglary and cheating. It adds new offences such as cybercrime and financial fraud.
Offences against the state: The BNS removes sedition as an offence. Instead, there is a new offence for acts endangering India’s sovereignty, unity and integrity.
Offences against the public: The BNS adds new offences such as environmental pollution and human trafficking.
The BNS introduces community service as a punishment, tougher penalties for sexual offences, and more comprehensive definitions of various offences like terrorism, organized crime, and cruelty to women.
New offences are deceit and false promises ( including false promise to marry ) and mob lynching.
There had been a lot of criticism about the offence of sedition in section 124A IPC which was often misused. This has been replaced by treason, though this too is vague
Some important changes in the IPC have been made by the BNS. For example, section 309 of the IPC, which made attempt to suicide a criminal offence, has almost been done away with.
Section 309 IPC stated :
Whoever attempts to commit suicide and does any act towards the commission of such offense shall be punished with simple imprisonment for a term which may extend to 1 year or with fine, or with both
This has been replaced by section 226 of the BNS which states :
Whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both, or with community service.
It may be noted that attempt to commit suicide per se is now no longer a crime
The articles below mention some important changes brought about by the BNS, as well as some drawbacks in BNS
We respectfully submit that many of the changes brought about by the BNS in India e.g. providing for community service as a punishment for certain offences, or decriminalization of attempt to suicide ( except in certain situations) should be welcomed as steps in the right direction, and should be emulated in Pakistan
