Triple Talaq: The Indian Constitution

  1. Introduction

Triple talaq, which is also known as Talaq-e-biddat is a form of divorce that was practiced in Islam, wherein any Muslim man could legally divorce his wife by pronouncing the talaq word three times in a row. Talaq is the Arabic for divorce and the pronouncement of which could be oral or written, or in recent times, delivered by electronic means such as SMS, telephone, email, or social media platforms. This form of ‘instant divorce’ was a customary practice, prevalent among Muslims for ages that dissolves a marriage without even assessing the consent of a wife. Under Muslim law, the dissolution of marriage can happen through four ways that include divorce by husband, wife, mutual consent, or by the judicial process. Other forms of divorce include ‘iddat’ which is the waiting period of about three months where the husband gets a decent time to reconsider his decision before, he finalizes the divorce.

Triple talaq is a practice that gives a man the right to divorce his wife by uttering talaq three times in one sitting. Nikah-halala is a practice where a woman who wants to remarry her husband would have to marry and obtain a divorce, from the second husband before she marries her first husband. Polygamy is a practice followed by Muslim men that allow them to have more than one wife.

Under the ambit of Islamic law, divorce is classified into three categories. Talaq understood simply, is a means of a divorce, at the instance of the husband. In ‘Khula’,  divorce is  done at the instance of the wife. The third category is ‘mubaraat’ – divorce by mutual consent. ‘Talaq’, namely, divorce at the instance of the husband, is of three kinds – ‘talaq-e-ahsan’, ‘talaq-e-hasan’,  and ‘talaq-e-biddat’. ‘Talaq-e-ahsan’, is considered as the ‘most reasonable’ form of divorce, whereas, ‘talaq-e-hasan’ is also considered as ‘reasonable’ from of divorce.  
 
  • Religious backing of Triple Talaq

India is a secular country. After the 42nd Amendment was enacted in 1976 to the Indian Constitution, the Preamble to the Constitution declared India as a secular nation. Secularism in India does not mean the separation of religions from different groups of people or States. Instead, Secularism in India means that the State does not follow any religion and is neutral to all religious groups. In India, personal laws are the laws that apply to a particular class or group of people or a particular person for regulating different aspects of life such as marriage, divorce, maintenance, succession, and inheritance. These laws are inconsistent with the territorial laws which apply to all the persons living in a particular territory. The origin of personal laws lies in the religious customs of native communities and is given a separate identity under the Indian Legal System. Similarly, the Muslim community having a minority status in India is governed by the Muslim Personal Law. It is called the Muslim Personal Law (Shariat) Application Act, 1937 that extends to the whole of India except the State of Jammu and Kashmir.

  • Landmark Case: Shayara Bano vs. Union of India

Petitioner: Shayara Bano

Respondent: Union of India and Others

Bench: Rohinton Nariman, U. U. Lalit, Kurian Joseph, Jagdish Singh Khehar, Abdul Nazeer

Court: The Supreme Court of India

Citation: AIR 1985 SC 945

Decided on: 22August 2017

Facts of the case: The petitioner Shayara Bano was married to her husband Rizwan Ahmed for 15 years. In 2016, he unilaterally divorced her through the method of talaq-e-biddat. She filed a writ petition asking Supreme Court to hold three practices viz. Triple Talaq, Nikah-Halala, and Polygamy unconstitutional as they violate fundamental rights given under the Indian Constitution. On 16th February 2017, the Supreme Court asked Shayara Bano, All India Muslim Personal Law Board (AIMPL), Union of India, and various women’s rights associations to give written suggestions on the issues of talaq-e-biddat, Nikah-halala, and polygamy. A five-judge constitutional bench was set up on 30th March 2017, and the court chose to examine the issue of triple talaq alone. The first hearing happened on 11th May 2017 and the decision was pronounced on the 22nd of August 2017. The judgment declared the triple talaq practice unconstitutional by a 3:2 majority.

Issues in question: 

  • Whether the practice of talaq-e-biddat an essential practice of Islam.
  • Whether the practice of triple talaq violates any fundamental rights.

The court decided the Parliament to take legislative actions against the practice of triple talaq, and a ban of six months proposed to protect the interests of Muslim women. As a consequence of this judgment, Lok Sabha passed Muslim (Protection of Rights on Marriage Bill 2017) in December 2017. It got lapsed in Rajya Sabha. Further, the cabinet cleared the ordinance in September 2018, and in July 2019, the bill came into force after President gave his assent. The Muslim Women (Protection of Rights on Marriage) Act, 2019 makes triple talaq a cognizable offense with an imprisonment of three years and fine or both. Under this Act, only the wife or any person related by blood can file the complaint. The magistrate can provide bail but not without hearing the wife’s side. On July 30th, 2019 the Parliament of India declared the practice of triple talaq as unconstitutional. It was made to be punishable from August 1st, 2019.

  • Conclusion

The biggest problem with the practice of triple talaq was that it was irrevocable, unlike other counterparts. Once the words have been uttered, they have to be adhered to.

On the issue of the constitutional status of the personal law, there lies an utterly confusing judgment. Personal law is beyond the scope of fundamental rights but it is also protected under matters related to religious freedom. Exceptions to Article 25 include public order, health, morality, and other provisions of Part III of the Constitution. Triple talaq was subjected to morality as well as the fundamental rights to equality, non-discrimination, and personal liberty as given in Articles 14, 15, and 21 of the Constitution, respectively. Further, it is to be noted that in disputes when the personal laws are in contradiction with the Constitution of India, Constitution is considered as the ground norm, from which all the other laws derive their validity. There can be no law violating provisions under the Constitution of India. Therefore, it could not be considered as an integral part of the Muslim faith and could not be immunized under Article 25.

The Triple-Talaq was violative of the fundamental rights of the Muslim women in the sense that they had no say in the matter that was fundamental to their existence. The practice of talaq-e-biddat showed the deeply entrenched patriarchy that exists in our society. It was the wish of the husband to decide when and how the marriage would end, offering no say to the women in the matter, whatsoever.  By looking at the social and historical background of India, a bitter is to be accepted that women are always considered as the inferior gender. Society has always and even today is discriminating against women on a lot of occasions. A woman’s rights, choices, opinions, were never given importance and Triple Talaq is an example of one such practice. Divorce is amongst the most important decision of a person’s life that affects the lives of both spouses equally, then also, the inferior gender has no say in it. Triple Talaq is in practice for centuries but injustice from centuries can never become a justice, there can be no justification for the same. A full stop is always required and becomes necessary to curb the practice that had done injustice to many women out there.

AUTHOR: YEESHA SHARMA, RESEARCH BOARD MEMBER.

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