By:- Harshita Kumari,
Pursuing B.A.L.L.B International (1st year) Asian Law College, Noida.
Talaq-e-biddat or the Instant Triple Talaq was a form of Islamic divorce which has been use by muslims in India widely, however from, ever since the beginning of this practise this law was in controversy due to its biased nature and as it was providing no iddat period for reconciliation. A muslim woman named Shayara Bano filed petition against triple talaq in the supreme court after she was served with triple talaq by her husband in 2015. A bench of 5 judge each belonging from different community was made to hear the plea challenging triple talaq. On 22nd of august 2019 the 5 judge bench declared the practise of triple talaq as unconstitutional and asked central govt. to formulate a law. On 29th of july the The Muslim Women (Protection of Rights on Marriage) Bill was passed by both the houses which criminalizes the practise of Triple Talaq.
Keywords: Talak-e-biddat, Triple Talaq, Talaq, Muslim Women, Divorce.
On 29th of july, the Muslim Women (Protection of rights on marriage) act, 2019 was passed by both the houses of the parliament. The ruling govt.(BJP) didn’t face much trouble in the Lok Sabha as there it enjoys the majority whereas in Rajya sabha the bill was passed with 99 to 84 votes (99 in favour and 84 in oppose)
The bill passes a law that criminalising the Talak-e-biddat/Polygamy/Nikah halala or the instant triple talaq. Any muslim man doing such practise to his wife can suffer imprisonment up to three years, however the offence is only perceptible if the information provided to the local authority is made by the victim (the married muslim woman) herself or by any of her blood relatives.
The Concept of Talaq and its kind, Practise in Islam
According to Hadith, the Talaq is one of the most unliked acts that a believer can perform. In the words of Prophet Mohammad “Of all the lawful things Talaq is the most hated by allah. Though islam tolerates talaq under by making provisions in it & only as the last option.
There are three kinds of Talaq practises in Islam
Talaq-e-ahsan, there is just a single declaration of talaq by the husband during the period of purity (when the wife isn’t having her periods) of his wife and after that there is the Iddat period which is span of three menstrual cycle of his wife during which they can reconcile for what so ever reason, so in this practise there is ample of time to reconsider their decision. And also it is considered as the best and the most accepted way to approach for divore as the word talaq has to be pronounced only once and the word talaq is considered as evil or Na-Pak in islam.
Talaq-e-hassan, the word talaq has to be uttered thrice, each after the monthly menstrual cycle of the wife and in this husband can take back his first two utterances & if and only if the third declaration is made then only marriage is dissolved.
Talaq-e-biddat or the instantaneous triple talaq: The word talaq has to be uttered thrice continuously to the wife through any mean like text, email, letter and the marriage will be dissolved.
However the word biddat means innovation in religion which is highly unacceptable in islam, The Quran is supposed to be relevant without a single change till the dooms day .
Instantaneous triple talaq gives a special privilege to the muslim husband to divorce his wife whenever they wish to do so without even giving a rational reason for doing so and also there is no time given to reconsider the decision. So clearly triple talaq is against the fundamental human rights of the muslim women and to be bit more precise, for those who suffer the triple talaq.
Is there any verse in Quran legitimating Triple Talaq ?
The Quran contains various verses dealing with marriage and talaq issue, however in islam the practise of talaq is supposed to be hated the most by the allah and also the other two practises of talaq, talaq-e-hassan and talaq-e-ahsan provides ample of time to reconsider decision thus making possibility of reconciliation. So the answer is an astounding NO!
How and from when the concept of triple talaq arise?
Back in the second century of Islamic era, after two years of ruling the Caliph umer enforced this practise and since then this form of talaq has been in pracise, partially in the society. In India muslim family affairs are governed by the Muslim personal law board and it passed a shariat act in 1937 legalising the practise of triple talaq among muslim men and women.
The supreme court judgement
A muslim women named Shayara bano from Uttrakhand was served with triple talaq via letter from her husband in 2015, and after this incident she approached the supreme court and filed a petition against the instantaneous triple talaq as unconstitutional as they violate article 14 15 21 and 25 of the constitution. The highly controversial case was heard by the bench of 5 judges and each were belonging from different religion.
Justice JS kehar (sikh) justice Kurian Joseph (Christian) justice Rohinton Nariama (parsi) justice UU lalit (HINDU) and justice Abdul Nazeem (muslim)
According to article 25(1) of our constitution, it provides all the fundamental right to “profess, practice and propagate religion” The Supreme court thoroughly examined whether this law was an essential practise in the Islam or not.
Justice Rohinton Nariman and justice UU lalit upheld the validity of triple talaq meanwhile the other three justices held triple talaq as unconstitutional and thus barring the practise by 3-2 majority. The supreme court asked the central govt to formulate a law regarding talak-e-biddat.or the instantaneous triple talaq. And the court said there will be an injection against those husband serving instant triple talaq to their wives until a new law is formulated.
The Muslim Women (Protection of Rights on Marriage) Bill, 2017
The govt. formulated a bill and it was introduced in the parliament. The bill was planned to make instant triple talaq (talak-e-biddat) in any form-through text, phone call, stamp paper, letter, email or whatsapp as illegal and void. Anyone who found guilty of doing such practise can face imprisonment for up to three years and also he will be liable for paying penalty. The bail can only be granted by the magistrate, on an application filed by accused only after listening to the victim women or any of her blood relatives. On 28th of December 2017 the bill was passed in lok sabha. Although the bill did not got clearance from the Rajya Sabha Case law, Shayara Bano case Triple Talaq Shayara Bano vs Union of India Shayra bano filed a petition against the triple talaq in Supreme court asking it to declare these three practises talak-e-biddat, nikah halala and polygamy as unconstitutional as they violate fundamental rights of women u Chief Justices: Justice JS kehar, justice Kurian Joseph, justice Rohinton Nariama, justice UU lalit, justice Abdul Nazeem. Case-number: WP (C) 118/2016 On 22nd of august 2017, the 5 bench judge pronounced their declaration in triple talaq case declaring that the practise was unconstitutional with 3:2 majority. Parties involved: Petitioner: Shayara Bano Respondent Parties: Union of India; Ministry of Law and Justice; Ministry of Women and Child Development; Ministry of Minority Affairs; National Commission for Women; All India Muslim Personal Law Board; Rizwan Ahmad Intervener: Jamait-Ul-E-Hind; Centre for Study of Society and Secularism; Jamait Ulama-i-Hind; Zakia Soman; Bharatiya Muslim Mahila Andolan; Forum for Awareness of National Security.
The 5 women who played crucial role in filing the petition against the triple talaq in Supreme Court
Shayara Bano, she was the one who started fight against triple talaq before India’s Supreme Judiciary power the Supreme Court. She was served with triple talaq via letter by her husband in 2015, at that time she was at her parent’s house. She filed a petition against triple talaq and demanded to declare it as illegal.
Aafreen Rehaman, she got married in 2014 through a matrimonial app . After 2-3 months she alleged that her in laws started torturing and harassing her physically and mentally, initially it was just mental torture demanding for dowry, later in September 2015 her in laws even started physical violence against her and she was asked to leave their house. After thatb she went back to her parent’s house where she received a letter via speed post declaring talaq in Jan 2016.
Atiya Sabri, from Saharanpur, Uttar Pradesh. She got married to Wajid Ali in 2012. She was served with a piece of paper declaring that her husband was divorcing her. The piece of paper was sent to her brother’s office in November 2015. She filed a petition against triple talaq in the Supreme court in January 2017 challenging the divorce and she stated triple talaq violates fundamental rights of the women. She has two daughters, aged four and three (at the time she filed petition that is 2017). She alleged that an attempt was made by her laws trying to poison her, after she gave birth to her second daughter. After the poison incident she was hospitalized and her husband was arrested later.
Ishrat Jahan, from howrah, West Bengal. She was divorced by her husband on a phone call, he called and uttered the word talaq thrice and disconnected the call. Her husband Murtaza married another women and took away their four children with him. Gulshan Parveen, she received a talaqnama notice on 10 rs. Stamp paper when she was on her way to visit her parents house in 2015, she’s from Rampur, Uttar Pradesh. However she refused to accept the notice as she and her two year old son Redan were left homeless, after which her husband reached a family court demanding triple talaq is in their law. Gukshan parveen was also the victim of domestic violence for dowry.
The Muslim Women (Protection of Rights on Marriage) Act, 2019
Finally on 29th of July the bill got clearance from both the houses of parliament, in Rajya sabha where earlier in 2018 this law was stuck due to the opposition’s demand to send it to a select committee. This time it got clearance with 99 to 84 votes (99 in favour and 84 in oppose). On 1st of august 2019 this bill against triple talaq was made a law in the parliamentary session.
From ever since the bill was passed and practise of triple talaq or the Talak-e-biddat has been criminalized according to a press release Triple Talaq-Big reform, better results, 22 July 2020, by Mukhtar Abbas Naqvi (Union Minister of Minority affairs) there has been decline of about 82% triple talaq case thereafter.
However many of the Muslim groups in India call themselves the Indian muslim and they do not follow the Islamic law completely as their governing body is the Muslim personal law board so still there are certain section of people not ready to accept this law. Besides from the religious beliefs one of the main reason why they are not ready to accept this law is that who will take care of the victim woman if the husband is jailed and if her parents refused to take her or they are no more alive. But even when triple talaq was valid then also the victim was suffering from this kind if issue, but after the enactment of the law such cases are constantly decreasing.