THE PRACTICE OF TRIPLE TALAQ IS “UNCONSTITUTIONAL”, “ARBITRARY” AND “NOT PART OF ISLAM”.
Supreme Court of INDIA
- On 22 Aug 2017, India’s Supreme Court banned “triple talaq”, or instant divorce, practiced by some in the Muslim community, saying it is “unconstitutional”. The issue has been the Centre of national debate, ever since a Muslim organization, Bharatiya Muslim Mahila Andolan (BMMA), launched a campaign to ban triple talaq.
- To comprehend the nuances of this very sensitive issue there is a need to put the whole practice into perspective and analyse the impact of this supreme court decision vis-à-vis its detractors.
What is Triple Talaq?
- Triple Talaq, is a form of Islamic divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence and allows any Muslim man to legally divorce his wife by stating the word talaq (the Arabic word for “divorce”) three times in oral, written, or more recently, electronic form. There was no requirement of specifying any cause for the divorce and could be pronounced even in the absence of the wife. After a period of IDDAT, during which it is ascertained whether the wife is pregnant, the divorce becomes irrevocable.
- Contrary to the established protocol of giving a time lag after each pronouncement (to attempt reconciliation), all three pronouncements are normally made in one sitting. Although the practice is not appreciated, it was not prohibited. A divorced woman could not remarry her divorced husband unless she first married another man, a practice called nikah halala. Until she remarried, she retained the custody of male toddlers and prepubescent female children. Beyond those restrictions, the children came under the guardianship of the father.
- There are three types of divorce under Islamic law, namely, Ahsan, Hasan and Talaq-e-Biddat (triple talaq). While the former two are revocable, the triple talaq is irrevocable. The followers of The Hanafi School of Islamic Law in the Muslim community in India adopt this system of divorce.
- Ironically, wives cannot divorce husbands by the means of triple talaq. Women have to move a court for divorcing her husband under the Muslim Personal Law (Shariat) Application Act 1937. (This Act was passed to make provisions for the application of Shariat or Islamic personal law to Muslims in India.)
Why Ban Triple Talaq?
- The petitioners sought the ban on the practice of TRIPLE TALQ on the following grounds:-
(a) This practice smacks of gender bias and propagates a distinct male dominated society.
(b) A study reveals 92% of Muslim women were in favour of the BAN.
(c) The practice facilitates men to seek separation arbitrarily without assigning any valid reason or grounds.
(d) The advent of technology further emboldens men to seek talaq by using the electronic and digital medium.
(e) Islamic Nations like Pakistan, Indonesia and Bangladesh have banned this practice on grounds of religious sensitivities.
(f) The practice of triple talaq is in contravention to Article 14 (Right to Equality) and Article 15(1) which states that there shall be no discrimination against any citizen on the basis of gender, race, etc.
(g) The Supreme Court has also declared that this practice is unconstitutional and not protected by Article 25 regarding the freedom of religion. Also in December 2016, the Allahabad High Court had said that no personal law board was above the constitution.
- The protagonists of the practice of triple talaq challenge the ban on the following postulates:-
(a) Triple Talaq is a practice sanctified by the sharia and attempts to ban it is perceived as interfering in religious practices protected under the freedom of religion in the constitution.
(b) The ALL INDIA MUSLIM PERSONAL LAW BOARD (AIMPLB) argues that divorce rate in Muslims is much lesser than any other community and as such banning this practice is not warranted.
(c) AIMPLB also claims that it had received forms from 35 million Muslim women across the country, supporting shariat and triple talaq.
- The case was called SHAYARA BANO V. UNION OF INDIA & OTHERS. The bench that heard the controversial Triple Talaq case in 2017 was made up of judges of different religions. The five judges from five different communities were 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 Supreme Court in its 397-page judgement ruled in favour of the ban by a 3-2 margin. Two judges upheld the validity of Triple Talaq whereas three judges held the practice unconstitutional. The bench directed the central government to promulgate legislation within six months concerning marriage and divorce in the Muslim community. Till the promulgation of this law, there will be an injunction against husbands pronouncing Instant triple talaq on their wives.
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017
- The Government formulated a bill and introduced it in the Parliament. On 28 December 2017, Lok Sabha passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017. The bill makes instant triple talaq (talaq-e-biddah) 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. The bill was tabled by the law minister and saw as many as 19 amendment motions which were all rejected. Several political parties opposed the Bill in Parliament labelling it “Faulty”.
- The ban on triple talaq is a step towards women empowerment and as such is imperative, given the fact that even Islamic nations have banned it. This bill is a precursor to the UNIFORM CIVIL CODE which will eventually see the light of day to strengthen democratic process and equality before the law.