What You Need to Know About India’s Recent Triple Talaq Ruling

By |2017-12-27T11:33:14+00:0027th December, 2017|

Talaq, Talaq, Talaq – triple Talaq (Talaq-ul-Biddat) is the practice wherein a Muslim man, on his whims and fancies, can divorce his wife by simply uttering the word “Talaq” three times. It is a practice in which men can give the command without warning thereby uprooting a woman’s life.

The Supreme Court has consulted and cited the laws of as many as 19 countries that have abolished triple Talaq. Arab countries include those that have enacted laws against the practice of triple Talaq.

Often it is said in a fit of anger, while other times, a small issue can lead a man to say these words. There are cases, for example the case of Shayara Bano, who was divorced by her husband via letter where he simply wrote these three words. There have also been instances where a man divorced his wife because she did not vote for the candidate of his choice in the Lok Sabha election which made him pronounce triple divorce and throw his wife out. Other examples included where women have been divorced because the husband was drunk and he did not like his wife that day. Men have later woken up to regret their decision however, it is often too late and things are out of their hands.

Triple Talaq is neither recognized nor sanctioned by The Holy Quran and The Holy Prophet. It was not in practice during the span of first Caliph but the second Caliph brought this concept of instant divorce. It came into existence to meet an emergency situation and was not made into law permanently. Unfortunately, the Hanafis jurists on the strength of this administrative order of the second Caliph declared this form of divorce as valid.

This practice is prevalent among India’s Muslim community majority of whom follow the Hanafi Islamic school of law. According to the Hanafis, when Talaq-ul-Biddat is pronounced, the wife becomes alienated from the husband and he cannot remarry her. She becomes ‘Haram’ (totally prohibited) for him. Neither can he take her back, nor can he go for a fresh Nikah (wedding) with her. He can go for Nikah with her only after paying a penalty of ‘Halala’. This means that the divorced woman must marry another man, consummate that marriage and get her new husband to divorce her on account of marital conflict or if she becomes a widow.

There have been cases in which Muslim men in India have divorced their wives by issuing triple Talaq by letter, telephone and lately increasingly by text message, email, WhatsApp and Skype to name a few. Many of these cases have made their way to the courts as women have contested the custom. This not only violates Muslim women’s rights, but this also deems them inferior in the eyes of society as well as in the eyes of men.

Triple Talaq is not Islamic and is a departure and deviation from the tenets of the Quran to undermine the rights of Muslim women. The beginning of the social justice movement against triple Talaq started on 18th April 1966 in Maharashtra to protect the rights of Muslim women.

In the past few years, this issue has attracted media attention since a Muslim organisation, Bharatiya Muslim Mahila Andolan, launched a campaign to ban triple Talaq and “Nikah Halala”. Twenty five-year-old Salma’s life crumbled one morning when her husband forced her and her two young children, aged three and two, out from their home in Bhopal, India.

Shayara Bano, a 35-year-old woman, challenged the practice in 2016, a year after her husband of 15 years divorced her via triple Talaq. Petitions of four other Muslim women – Aafreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri – were tagged with Bano’s plea.

Primarily, the women contended that the practice of triple Talaq is unconstitutional and has attained the ugliest form since it is now being pronounced digitally. The Supreme Court has observed that the practice of triple Talaq is the “worst” and “not a desirable” form of Muslim marriage dissolution, barring few exceptions of its acceptance in some schools of Muslim law.

A five-judge bench examined whether the Islamic divorce practice “is fundamental to religion” and whether it is a fundamental right. Article 25 of India’s Constitution grants the right of religion as a fundamental right. The Supreme Court has consulted and cited the laws of as many as 19 countries that have abolished triple Talaq. Arab countries include those that have enacted laws against the practice of triple Talaq.

Headed by Chief Justice J.S. Khehar and other justices U.U. Lalit, S. Abdul Nazeer, Kurian Joseph, and R.F. Nariman, the bench heard seven petitions including the five individual petitions filed by Muslim women challenging the practice of triple Talaq. The noted jurist Ram Jethmalani termed the practice “abhorrent” and discriminatory on the ground of sex against the constitutional right to equality. He said it violates the tenets of the Quran and no volume of advocacy can justify its retention.

However, the judgment itself is not path-breaking, as there was an earlier ruling in 2002 which held that triple Talaq is invalid and it has been followed by several High Courts. Since there was no media hype back then as the one we are witnessing today, the 2002 judgment was overlooked by women’s groups and individual woman. But an astute lawyer could have used it to bring respite to victims of triple Talaq. Triple Talaq has already been ruled unconstitutional by the Supreme Court in a number of cases, including in February 2015.

The triple Talaq judgement pronounced by the Constitution bench of five judges of the Supreme Court of India has been hailed as “historic” by all concerned. The operative part of the elaborate ruling comprises of three different and diverse judicial opinions captured in 395 pages. The main line states, “by a majority of 3:2 verdict the practice of Talaq-ul-Biddat – triple Talaq is set aside”.

Three of the five judges called the controversial practice “un-Islamic, arbitrary and unconstitutional”. Justice Kurien Joseph, said the practice was not an essential part of Islam and enjoyed no protection. The judges also said it was “manifestly arbitrary” to allow a man to “break down a marriage whimsically and capriciously”.

Justices Rohinton Nariman, Uday Lalit and Joseph Kurien ruled that triple Talaq is unconstitutional. Justice Joseph said what cannot be true in theology cannot be protected by law. He added that triple Talaq is not recognised by the Quran and hence it couldn’t be a practice to be protected under the right to religion.

Justice Abdul Nazeer and Chief Justice JS Khehar upheld the validity of triple Talaq. Chief Justice JS Khehar, in a differing opinion, said that personal law could not be touched by a constitutional court of law. The opposing judgements also recommended that parliament legislate on the issue. However this is not binding and is up to parliament to take up. Chief Justice JS Khehar asked the government to bring legislation in six months to govern marriage and divorce in the Muslim community. He added that Talaq-ul-Biddat is an integral part of the Sunni community and has been practiced for a 1000 years.

This judgment is not against any institution, organization nor is it against the religion of Islam. Rather, the true meaning and spirit of the Quran has been outlined on the anvil of individualism, the rule of law and human rights enunciated in the constitution. It is a judgment in favor of justice based on women’s rights as human rights that have been denied to Muslim women for centuries despite Quranic provisions relating to gender and spousal equality in wedlock and beyond. The Quran does not sanction triple Talaq in one go. The word Talaq is spoken thrice over a period of three months. In such a manner, it demands time and patience in executing a divorce in the hope of making the union possible, knowing that the couple is bound to have differences. This Quranic procedure has been laid down with a rationale to establish that marital coverture cannot be terminated in a state of sudden provocation, rage or whims.

The ball is now in Parliament’s court with the Triple Talaq Bill to be introduced in Parliament on 28th December. It is to be noted that the Centre had during the course of hearings earlier this year, told the bench that it will come out with a law to regulate marriage and divorce among Muslims if ‘triple Talaq’ is held invalid and unconstitutional by the apex court.

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