The Journey of Triple Talaq in India

Nowadays use and status of in India is a subject of controversy and is connected to debate about a uniform civil code (Article 44) in India. is a form of instant Islamic also known as talaq-e-biddat and talaq-e-mughallazah especially by adherents of Hanafi Sunni Islamic schools of jurisprudence.
The Journey of Triple Talaq in India Lawescort

PRACTICE OF TRIPLE TALAQ

It allows any Muslim man to legally divorce his wife by stating the word talaq three times in oral, written, or electronic form.

TYPES OF TALAQ IN ISLAM

Talaq-e-Ahsan

In this, the husband gives talaq to wife in a single sentence in state of purity (tuhr) and waits for period of iddat. This type of talaq is revocable during the period of iddat. After iddat, it is irrevocable.

Talaq-e-Hassan

In this type of divorce, there should be three successive pronouncements of talaq at three successive tuhrs (in case of menstruating women) or consecutive intervals of 30 days (in case of non-menstruating women). Such divorce can be revoked anytime before the third pronouncement. After third pronouncement, it becomes irrevocable.

Talaq-e-biddat / talaq-e-mughallazah

The word Bidat means innovation. This mode of Talaq was invented later (under Umayyads) and was mainly to suit the patriarchy. In this, the three pronouncements of word Talaq are made successively during a single Tuhr and in same instant. Such a Talaq becomes irrevocable instantly.
This type of divorce can be cancelled only when the divorced woman first marries another man, consummates the marriage, and gets divorced from him. This is called practice of Halala.

VARIOUS INTERPRETATIONS ON TRIPLE TALAQ

The practice of Triple Talaq (Talaq-e-bidat) is not mentioned in Quran or Hadees and is not as per Sharia law. Most of the Muslim legal scholars disapprove the practice and consider Talaq-e-Hassan or Talaq-e-ahasan as legal and proper way to end the contract of marriage. Some scholars argue that saying triple talaq in one sitting itself is null and void and there should be a period of three months {three menstrual cycles} between each Talaq.This practice has been legally recognized in many countries .It is valid in Sunnis only; most Shia nations have held it invalid.

LEGAL JOURNEY OF THE TRIPLE TALAQ ISSUE

  • Private matters of Muslims in India are governed by the (Shariat) Application Act, 1937, which is commonly known as .
  • Marriage is also a private matter and is governed by Muslim Personal Law unless the marriage is registered under Special Marriage Act of 1954.
  • The divorced woman suffered most, so the practice of Triple Talaq was challenged via Public Interest Litigations / other cases in Supreme Court as well as High Courts.
  • The judgments of various cases served the basis of several later rulings and thus invalidated the .
  • In December, 2016, the Allahabad High Court observed in a rule that this practice is unconstitutional.
  • In May, , the Supreme Court also described it as worst form of marriage dissolution.

ACTION TAKEN BY GOVERNMENT

The Modi Government formulated a Bill called The Muslim Women (Protection of Rights on Marriage) Bill, 2017 to make instant triple talaq in any form — spoken, in writing or by electronic means such as email, SMS and WhatsApp illegal and void, with up to three years in jail for the husband. This was introduced in Parliament which was passed on 28 December 2017 by the Lok Sabha.

SUPPORT

  • Triple talaq has been supported by the All India Muslim Personal Law Board (), a non-governmental body that supervises the application of Muslim personal law. The ’s lawyer Mr had said that though instant talaq can be thought of as a sin by some, but that “setting the validity of customs and practices of a community is a slippery slope”. cited Article 371A to state that even the Constitution does intend to protect matters of practice, tradition and customs of communities.
  • In April 2017, a report prepared by Muslim Mahila Research Kendra in co-ordination with Shariah Committee for Women, AIMPLB has claimed that Muslims have a lower rate of divorce compared to other religious communities, countering the argument that Muslims have the highest number of divorce in the country due to the practice of triple talaq.
  • AIMPLB claimed that it received forms from 35 million Muslim women across the country, supporting shariat and triple talaq.
  • It warned that those who divorce for reasons not prescribed under shariat will be socially boycotted in addition to calling for boycott of those who use triple talaq recklessly and without justification.

Some Landmark Cases on Triple Talak

CASE 1 : Shayara Bano v. Union of India & Others (2017)

Court : Supreme Court of India
Five judges from five different communities : Chief Justice JS Khehar a Sikh, Justices Kurian Joseph a Christian, RF Nariman a Parsi, UU Lalit a Hindu and Abdul Nazeer a Muslim.
The five judge bench of Supreme Court examined the case with two specific questions:
Does the practice of Triple talaq enjoy protection of the constitution and is safeguarded by Article 25(1) in the constitution that guarantees all the fundamental rights to “profess, practice and propagate religion”?
Is the practice of Triple Talaq an essential feature of Islamic belief and practice?
Issue : It has raised issues of justice, gender equality, human rights and secularism. It has involved the Government of India and the Supreme Court of India. On August 22,2017 ; three of the five judges in the panel of the Indian Supreme Court deemed instant triple talaq unconstitutional and the other two declared the practice to be constitutional and asked government to ban the practice by enacting a law.
Facts : The issue of triple talaq came in public prominence in 1985 due to this case. Shayara Bano, besides seeking alimony from her husband who gave her triple talaq, also challenged the long-standing practices of talaq-e-bidat, nikah halala and polygamy.
Judgement: The SC gave verdict by a 3:2 majority. The essence of the 397 page verdict was as follows:
  • Instant Triple Talaq is unconstitutional and arbitrary.
  • It violated Islamic law while being used as a tool to oppress the women.
  • The bench also asked the Central Government to enact a law / legislation in next six months to govern marriage and divorce in the Muslim community.
  • Until the government formulates a law, there would be an injunction against husbands pronouncing Instant triple talaq on their wives.
  • It banned the instant talaq while not touching other modes of divorce.
  • The matter came to a close with the passing of Muslim Women (Protection of Rights on Divorce Act), which made it necessary for the husband to pay alimony to his wife 90 days after divorce.

CASE 2 : Shamim Ara vs State of UP (2002)

The Justice RC Lahoti said, “ that talaq must be pronounced on cogent plausible and reasonable grounds. Prior to talaq, the spouses must appoint two arbitrators, who would make all efforts for reconciliation and resolution. Once all efforts having failed, talaq shall come into effect.” This verdict though did not invalidate the triple talaq yet, tried to give it a process.

CASE 3 : Dagdu Pathan vs Rahimbi (2002)

The Aurangabad bench of Bombay High Court invalidated the triple talaq by giving reference from Quran in In this case, the court declared that a Muslim husband can not repudiate the marriage at will and has to prove that all stages – conveying the reasons for divorce, appointment of arbitrators and conciliation proceedings between the parties were followed.

CASE 4 : Afreen Rehman given ‘talaq’ via Speed Post

25-year-old Afreen Rehman got the shock of her life after she received a ‘Speed Post’. It was a ‘triple talaq’.
The young woman, in May, moved the Supreme Court against Islam’s ‘triple talaq’ provision seeking its intervention into the matter and said it was completely wrong, unfair and unacceptable.

CASE 5 : Triple talaq’ via WhatsApp

Ten days after her marriage, a 21-year-old BDS student’s groom left for Dubai. After not communicating for over three weeks, he sent her a message “triple talaq” over WhatsApp.
The unexpected talaq shattered the woman and her family. Both she and her sister, a Plus Two student, had to drop out of their classes.
Overcoming the initial shock, the young woman lodged a complaint at the state women’s commission’s adalat in Pala, Kottayam.

CASE 6 : 30-year-old divorced on phone

A 30-year-old woman’s husband demanded a divorce over the phone after she was questioned by him for not giving birth to a boy.He was not satisfied and he wanted to have another son. He took her three daughters and one son along with him.
The woman leveled charges of molestation against her husband’s elder brother. Multiple complaints were filed with the Howrah Police but no action was ever taken by the cops.
The judgments of the cases were a partial victory for Muslim women such as .
  • Muslim women facing all odds were able to take on the might of the fundamentalists upto the Supreme Court.
  • The amount of publicity and the judgment has generated, various women’s organizations working with Muslim women, to go a long way in empowering Muslim women.
  • A large number of Muslim women are now aware that instant triple talaq is not legal. Immediately after the judgment, there were reports of Muslim women approaching police stations to demand action against their husbands for giving them instant triple talaq.
The Ministry of Law and Justice, in its affidavit, had referred to constitutional principles like gender equality, secularism, religious practices and marital law prevalent in various Islamic countries to drive home the point that the practice of triple talaq and polygamy needed to be adjudicated upon afresh by the apex court. Laws need to change according to the time. We are suppressing half of India’s population from taking an active part in the progress of the country. This has to be stopped and a change is needed to be brought in the society.
CREDITS:
Written by- Pallavi Nayyar
Amity Law School, Noida

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