Concept of Triple Talaq:
The fight for equality has seen a recent storm. The storm of being divorced without even being informed about the reasons for the same i. e, Triple talaq. In islam, they regard marriage or Nikkah not a religious sacrament but as a secular bond, Therefore divorce/talaq was something in the ambit of humans because it is a contract which can be dissolved.
Talaq is an Islamic word for divorce, denoting dissolution of marriage when a muslim man can severe all marital ties with his wife. Under Muslim law, Triple Talaq means liberty from the relationship of marriage, eventually or immediatelty by a man, by simply uttering the word “Talaq” three times, ends his marriage. There are three types of Talaq for men and women under Islamic Law. There are Hasan, Ahsan and Talaq-e-Biddat..The first two are revocable whereas Talaq-e-biddat is irrevocable. The instant divorce is called Triple Talaq, also known as Talaq-e-biddat. Triple talaq is 1400 year old practice among Sunni Muslims. This instant divorce majorly occurred among Muslim communities by adherents of Hanafi School of Islamic law. The Muslim personal law act 1937 allowed the process of Triple talaq to give a special privilege to Muslim men over his wife. It allows a man to break his marriage relationship whimsically.
In Triple talaq women was not allowed to remarry her divorced husband. She had to first marry another man, a practice known as Nikah Halala. She keeps possession of the custody of children up to the time she remarried. Beyond this, the children will come under the guardianship of the father.
What is a need to Ban Triple Talaq?
Triple Talaq is a provision in Islamic personal law that allows men to divorce their wives by saying talaq three times. It is irrevocable divorce. According to Quran, there should be a certain time gap among three stages of talaq, but this provision is grossly misused and some men are giving instant divorce to their wives. These days some men are using electronic medium to give talaq by sms, phones etc. In this type of divorce, the wife has no right to question the reason or motive behind the talaq and nor she is entitled to be given any kind of explanation. Therefore it was considered against equality and justice.
This caused widespread protests by Muslim women and women organization on ban on Triple talaq.
Triple talaq violates fundamental rights such as right to equality, right to non discrimination and right to live with dignity. Women are subjected to live in fear of being unilaterally divorced by their husbands. This sinful culture encourages polygamy, gives mental insecurity and threats of instant divorce. It has been treated as the dominance of men over women. Hence, it goes against gender equality, women empowerment, the dignity of women , justice and human rights. In small matters, Muslim men give triple talaq threats to their wives. This destroys the life of women and children.
We are the nation which proudly professes about it being the largest democracy and ensures to both men and women equal rights meanwhile it claims itself to be a secular state. However, under all these pretty claims there lies heinous and discriminatory laws which jeopardize the lives of many people who are in most cases unable to earn a living for themselves. The different courts in India have passed various judgements in the cases of Triple Talaq, a patriarchal practice should be banned because first, it is unconstitutional, secondly , it leave the women who are divorced and dependent in accurate poverty, thirdly, it is un- quanric.
In the Case of A.S Parveen Akhtar V/s Union of India it was observed that the practice of Triple Talaq among the Muslims is illegal as per the Holy quran and it is considered sinful. Triple talaq is nowhere mentioned in the quran and this might be one of the reasons as to why this practice is banned in certain Islamic countries. The quran gives equal rights to husband and wife to seek divorce and it does not even allow instant divorce by husbands.
In case of Saleem Basha Vs Mumtaz Begam,1998 Cri.L.J.4782 it was observed that the correct law of talaq as ordained by the holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation by two relations,one each of the parties,is an essential condition precedent to talaq.
Judicial pronouncement on Triple talaq:
The Islamic practice of Muslim men divorcing their wives instantly has been declared unconstitutional, void and illegal after decades of Muslim women campaigning about it. the form of talaq as held by SC in the case,
Shayara Bano v/s Union of India ,2017
Shayara bano was married to Rizwan Ahmed for 15years.In 2016, he divorced her through instantaneous triple talaq ( talaq-e-biddat). She filed a writ petition in SC asking it to hold three practices i.e, Talaq- e-biddat, polygamy, nikah halalaha unconstitutional as they violate articles 14,15,21,25 of the constitution.
Various women right organisations like Bebaak Collective and Bharatiya Muslim Mahila Andolan supported Mrs.Bano’s plea that these practices are unconstitutional.
After accepting Shayara Bano’s petition, the apex court formed a 5 judge constitutional bench on 30th March 2017. Five judge Bench pronounced its decision in Triple Talaq case,vdeclaring that the practice was unconstitutional by 3:2 majority.
Status before the judgment:
It is significant to state that the sketch before the passing of the judgment was very gloomy,the husbands were very inhuman against their wifes. In many cases husbands pronounced triple talaq for flimsy reasons and later regretted. Upon which they could remarry,because of illiteracy and social bounds womens had no recourse available except to go through it. the custom of nikah halala was so harsh that it ripped off the soul of the women.In many cases,husband at first forced the wife to go through nikah halala and later refused to remarry. This left women in shock,but they were amputated by the custom to take any step.
Constitutional Validity of Triple Talaq:
The constitutional validity of the sinful practice of triple talaq can be challenged on the grounds of Article 14,15 and 21. In recent case of Smt. Sumaila v/s Aaqil Jamil and Ors where husband divorced his wife by triple pronouncement was held by Allahabad High Court as wrongful and violative of Article 14 which reads as follows. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”, and equality is one of the magnificent corner stones of the Indian democracy, Article 15(1),The state shall not discriminate against any citizen on grounds only of religion, race, caste,sex,place of birth or any of them and Article 21 which guarantess Right to life and personal liberty.
Triple Talaq Law:
Of lately, there has been much noise against the practice of triple talaq by the male population of Islamic culture. Triple talaq has been as the dominance of men over women. It was against the rights of equality and women’s empowerment among Muslim population of the country.
When P.M Narendra Modi started a campaingn of Uttar Pradesh state elections in 2017, Muslim rise their voice and concerns to abolish Triple Talaq and then central Government started finding a solution to the problems of such women.
In August 2017, SC of India has termed triple talaq as unconstitutional and many social, religious and legal observations have been produced against the practice of Triple Talaq. Based on the atrocities faced by Indian women and judgement given by SC, Triple talaq has been introduced in Indian Parliament to void the practices of Triple Talaq by Indian Muslim men and bill was passed in parliament in December 2018.
Muslim Women (Protection of Rights on marriage) act 2019 Received the assent of the president on 31st July, 2019. This act was passed to protect the rights of married women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.
The law also makes Triple Talaq a cognizable and non bailable offence.
According to Clause 3 in chapter 2 of the Bill, “any pronouncement of talaq by a person upon his wife, by words, either spoken or writtern or in electronic form or in any other manner whatsoever shall be void and illegal.
According to Clause 3 also states that “whoever prounces Triple Talaq upon his wife shall be punished with imprisonment for a term which may extend to 3 years and fine”.
According to clause 7(c), “No person accused of an offence punishable under Triple Talaq shall be released on bail after the magistrate, on an application filed by the accused and after hearing the married Muslim women upon whom talaq was pronounced is convinced that there are reasonable grounds for granting bail to the accused.
Custody of Children: Clause 6 in chapter 3 of the bill states that“ a married Muslim man shall be entitled to custody for her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the magistrate.”
Challenges faced in Banning Triple Talaq:
There is a provision for personal laws for all religious communities in India. Religious groups infer the banning of traditional practice as it interferes with the religious aspects of minorities.It generated the issue of the rights of Muslim Mahila Andolan made a campaign to ban triple talaq and nikah halala.
Most of the time, men believe their action is approved by the quran. However, it has not mentioned in the Quran, also disapproved by Muslim legal scholars.
Arguments Favouring the bill :
Bill is needed so that even Muslim women also get equality on par with other Muslim men. The Bill It significantlty empowers Muslim women. The law is about justice and respect for women and is not about any religion or community. The law would act as a
more enforceable deterrent for Muslim men handling out divorces and help out divorces and help break down the cultural acceptability of the practice.
The bill would ensure gender equality and gender justice to Muslim women and help in protecting the rights of married Muslim women.
Arguments Criticising the bill:
One of the main contentions against the proposed legislation has always been its recognition of a civil offence as a cognizable and non bailable crime. Clause 4 of the 2017 bill stated that any pronouncement of triple talaq shall be punished for a term that may extend up to three years with fine. Only magistrate can grant bail in such a case.
Women will be less likely to report, because by going public, she risks her husband getting jailed, for one. And the imprisonment would deprive the family of the stable source of income, especially for daily wage-earning families. The punishment will aggravate the insecurity and alienation of the Indian Muslim community. The harsh punishment defines the doctrine of proportionality.
Current status of triple talaq:
It is crucial to enumerate that because the Supreme court has solidified in his verdict that the talaq-ul-Biddat or the instantaneous form of talaq is invalid,it means that it cannot pose any effect over the marriage in any way, therefore the wife cannot be forced to go through the process of Nikah Halala, even if the husband pronounces triple talaq or talaq- ul-Biddat.
The Supreme court in the judgment paralyzed triple talaq by declaring it as unconstitutional. This means that no more these words will be able to invalidate the marriage. Through this, an armament has been provided to the women to guard themselves against this barbaric law. The supreme court focuses on to liberate women from the coercive chains set by the males. Since there is an extreme illiteracy among the Muslim women, we can imagine that almost half of the women are illiterate therefore women who have been the victim of it are in doubt as what should they do. Also because of the illiteracy, many of them are still unaware of the changed scenario.
Is the Bill Comprehensive?
Though the government has exhibited the intolerant approach towards this taboo by making it a Non bailable and cognizable offence and attaching a penalty and
imprisonment up to three years, But it Fails to submit alternative methods to it. The Bill must provide the Procedure of divorce which is not cruel to either party. They must adopt Talaq-e-Ahsan which is regarded as the most proper method of divorce was also professed by the prophet.
Has the practice Discontinued?
The practice of triple talaq is heavily assimilated in the Muslim Culture, and it is difficult to immediately wipe it. It took 70 years for India to get rid of this inhuman and cruel practice. The Government made the law against triple talaq to make effective the Supreme courts judgement. Since the law against triple talaq was passed and there is a decline of about 82 percent in Triple Talaq cases thereafter.If any such case was reported, the law has taken action
Getting respect is a fundamental right of every individual. One of the most important conclusions to be drawn through the abolishing of Triple talaq bill is that no Muslim will face such discrimination and injustice in their life in future. India is a country of diversity of culture, religion and customs. In India each religious community has its own set of laws based on their religious texts, which govens the family matter.However between the right to practice any religion and social justice. Approval by parliament of Triple talaq bill is right step in giving social justice to Muslim women. The latest rule is truly an encouragement in the women empowerment movement in India. The court has given progressive thoughts over the personal law in society. The abolishment of Triple talaq will deny discrimination and injustice from Muslim women’s lives in the future. Society should also come forward against this social evil to abolish this practice.Because women’s empowerment is very essential for the progress of the nation.
Author: Likitha M.B.
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