PRACTICE OF TRIPLE TALAQ IN INDIA: AN INTERDISCIPLINARY STUDY

I raise up my voice—not so that I can shout, but so that those without a voice can be heard…We cannot all succeed when half of us are held back.

Introduction

In present times, Muslim women and their rights under Muslim Personal law is a matter of great concern. They are getting deprived even of their fundamental rights and basic liberties. Various adverse practices against them lead to their low and downtrodden status in society.

Triple Talaq is one of such practices that left many women homeless with instant divorce. It is also against their fundamental rights, personal laws and conjugal rights. Many Muslim women were divorced by their husband via SMS, Email, Whatsapp or even without their knowledge.

The practice of Divorce in Islam

To understand the concept of Triple Talaq, we should first consider the various modes of divorce in Islam. The divorce is classified into the following three categories:

1. Khula: Divorce at the instance of wife.
2. Mubaraat: Divorce by mutual consent.
3. Talaq: Divorce at the instance of husband.

What is Triple Talaq?

In Islam, there are three forms of talaq by which a husband can divorce his wife:

1. Talaq-e-Ahsan: In this type of talaq there is a single pronouncement of divorce by the husband which is followed by a period of iddat (90 days or 3 menstrual cycle). It is revocable.
2. Talaq-e-Hasan: There must be three consecutive pronouncements of talaq, scattered into a period of 3 months. It is revocable within the iddat period.
3. Talaq-e-Biddat: It is what commonly known as ‘Triple talaq’ or ‘Instant talaq’. In this type of talaq, husband instantly divorces his wife by three pronouncements in a single time like ‘Talaq Talaq Talaq’. It is immediately irrevocable. Wife has no say in this type of divorce and it can be commenced even in her absence and without her knowledge. They cannot remarry until they fulfil the procedure of wife remarrying another man and being divorced by him (popularly called Nikah-Halala).

CONFLICTING VIEWS REGARDING TRIPLE TALAQ

Opposition of Triple Talaq

Various jurists and legal experts who condemned Triple Talaq and oppose it put forward following arguments to support their idea:

• Violative of Fundamental Rights: It is violative of fundamental right of equality under article 14 of our Constitution as only husbands have this right of dissolution of marriage and women have no say in it. It is also violating their Right of life under Article 21.
• It is not sacrosanct to Islam: Talaq-e-Biddat is not recognized by the holy books of ‘Quran’ and ‘Hadith’. Moreover, the majority of Muslims in India are from Hanafi School which regards ‘Talaq-e-biddat’ as a sinful act that is bad in every form. Thus it is not sacrosanct to the Muslim religion i.e. not an essential practice of Islam.
• Muslim Personal law cannot violate Fundamental rights: Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 that includes divorce covered under the definition of ‘Law in Force' under article 13(3)(b) of the Constitution which cannot violate the fundamental rights.
• Freedom of religion is not sacrificed: Firstly, the freedom of religion under Article 25 is subservient to fundamental rights as it is subject to the provision of part III. Secondly, it is not confined to male gender only. Lastly, it only protects religion and not the all religious practices of it.
• Divorce is matter of public concern by judicial body: The jurists contended that divorce is not a unilateral private act this arbitrary triple talaq cannot be said to be valid without authority of law, Otherwise it would be against gender equality and public policy.
• It is arbitrary, unilateral and unjustified: Husband is exercising arbitrary and unilateral power over his wife by way of Triple talaq as it is instant and one-sided which is unjustified.

Support of Triple Talaq

The supporters of Triple Talaq present following views:-

• It does not covered under Article 13: Expression ‘Custom and Usage’ in Article 13 does not include faith of religious denomination embedded in their ‘Personal Law’. Thus the direct relationship with religious denomination do not need to satisfy Article 14, 16 & 21.
• It is Part and Parcel of their Religion: Quran regards the concept of Talaq as a whole as sinful. But it is been in practice from the ancient times practiced by the Muslim community and thus a essential part of their religion.
• Freedom of Religion: The Constitution of India grants to its citizens freedom of religion as a fundamental right. It cannot be taken away by declaring Talaq-e-Biddat as void.

Supreme Court Verdict in Shayara Bano Case

The Supreme Court of India in its landmark judgment in the case of Shayara Bano v. UOI, check the validity of Talaq-e-biddat. The bench comprises of judges from five religions. In this case, AG Mukul Rohatgi observed that "Gender equality, gender equity and a life of dignity and status is an overreaching constitutional goal."

The Supreme Court stated that the freedom of religion is subservient to fundamental rights and thus cannot overcome the right of Muslim women. The bench with the ratio of 3:2 held the practice of Triple Talaq as void, constitutional and illegal and directed the government to make legislation within six months. The government in pursuance of the Supreme Court verdict initiated various bills and ordinances and at the end passed The Muslim Women (Protection of Rights on Marriage) Act, 2019

Present Legislation on Triple Talaq

This act was passed by the Parliament after a series of unpassed bills and ordinances for the protection of Muslim women. This act expressly declare the practice of Triple talaq as void and made it a punishable offence. Section 3 of this act states that any pronouncement of triple talaq by husband upon his wife, either it is spoken or written or in electronic form such as email, SMS etc. or in any other form shall be void and illegal. Section 4 makes it a punishable offence with imprisonment upto 3 years and fine. Moreover, custody of child and subsistence allowance were also granted to the divorced wife by this act.

Conclusion

In spite of various diverse practices against Muslim women, the government has passed various legislations for their betterment. The unconstitutional practice of Triple Talaq has also been curbed by the joint efforts of Judiciary and Parliament. In India, Muslim women are provided with the fundamental rights and other human rights. But even after these efforts there is still need of betterment in the position a Muslim women hold in a society.

The author, YOJIT KAUSHIK is a law student pursuing BA LLB from Institute of Law, Kurukshetra University, Kurukshetra, Haryana.

References

1. Krishnadas Rajagopal, ‘What is triple talaq?’ The Hindu (India, 27 May 2017). <https://www.thehindu.com/news/national/the-hindu-explains-triple-talaq/article18590970.ece> accessed on 5 April 2020.
2. Farhan Rahman, ‘Know the Eight Types of Divorce & Women’s Right to Talaq in Islam’ (National Views, 22 April 2017) <https://nationalviews.com/types-divorce-talaq-in-islam-women-rights> accessed on 5 April 2020.
3. The Muslim Women (Protection of Rights on Marriage) Act, 2019.
4. Neha Verma, ‘Triple Talaq’ (Legal Services India) <http://legalserviceindia.com/legal/article-26-triple-talaq.html> accessed on 5 April 2020.
5. J. N. Pandey, The Constitutional Law of India (7th edn, Central law Agency 2009).
6. Muslim Personal Law (Shariat) Application Act, 1937.
7. Shayara Bano v. Union of India and Ors. [2017] 9 SCC 1 (SC).