Triple talaq is a form of marriage dissolution in Muslim Law, whereby a husband can give the divorce to his wife by stating talaq three times in one row. The presence of wife is not required, she can be given talaq without assigning valid reason. The term “talaq” refers to the repudiation of marriage by husband under Muslim law. The practice of triple talaq has been prevailing since ancient times in India.
Historically, the rules of divorce were governed by the Sharia, as interpreted by traditional Islamic jurisprudence, although they varied depending on the legal school. In Modern Times, as personal status (family) law were codified. They generally remained within the orbit of Islamic Law, but control over the norms of divorce shifted from traditional jurists to the state.
Triple Talaq is 1400 year old practice among Sunni Muslim. This is not mentioned in the Quran and the Sharia law. As per Quran, marriage is intended to be unbounded in time the relationship between the spouses should ideally be based on love and the important decision concerning both spouses should be made by mutual consent. When the marital harmony cannot be attained, the Quran allows and advises the spouse to bring the marriage to an end although this decision is not to be taken lightly and the community is called upon to intervene by appointing arbiters from two families to attempt a reconciliation. The Quran establishes two further means to avoid hasty divorces, it prescribes two waiting periods of three months before the divorce is final in order to give the husband time to reconsider his decision, and a man who takes an oath not to have sexual intercourse with his wife, which would lead to automatic divorce, is allowed a four month period to break his oath.
The Quran modified the gender inequality of divorce practices that existed in pre-Islamic Arabia, although some patriarchal elements and the others survived and flourished in later centuries. Before Islam, divorce among the Arabs was governed by unwritten customary law, which varied according to region and tribe its observance depended on the authority of the individual and groups involved. In the opinion of classical jurist variously classified pronouncement of talaq as forbidden and reprehensible unless it was motivated by a compelling cause such as impossibility of cohabitation due to irreconcilable conflict, though they did not require the husband to obtain court approval or provide a justification. The jurist imposed certain restrictions on valid repudiation for example the declaration must be of sound mind and not coerced. Upon talaq, the wife is entitled to the full payment of Mahr if it had not already been paid.
he husband is obligated to financially support her until the end of the waiting period or the delivery of her child, if she is pregnant. In addition she has a right to child support and any past due maintenance, which Islamic law requires to be paid regularly in the course of marriage. It may involve “triple talaq” i.e. the declaration of talaq repeated three times or a different formula “you are haram for me”. In the legal school view is that a triple talaq performed in a single meeting constituted a “major” divorce , while other classified it as a “minor” it reflects pre-Islamic divorce customs rather than Quranic Principles, though legally valid form of divorce in traditional Sunni jurisprudence, Muhammad denounced the practice of triple talaq, and the second Caliph Umar punished husbands who made use of it.
In the light of above, triple talaq should be banned. It is un-Quaranic, goes against the spirit of the constitution and most importantly it is unjust and unhuman. After being divorced the woman becomes homeless overnight, left destitute with no help for children or most women are traumatised for life and find it difficult to recover from the shock. Hence, the Indian Government took steps against the practice of triple talaq when in October 2016, Justice Anil R Dave and Justice Adarsh Kumar Goel while delivering a judgement onPrakash and Others v. Phulavati and Others, observed that Muslim women are subjected to discrimination. There is no safeguard against arbitrary divorce and second marriage by her husband during currency of the first marriage, resulting in denial of dignity and security to her. They pointed out that the matter needs consideration by the supreme court, as the issue relates not merely to a policy matter but to fundamental rights of women under Articles 14, 15 and 21 and international conventions and covenants.
Hence, they directed the court to register a suo motu PIL and put up before the appropriate Bench as per orders of Hon’ble the Chief Justice of India to look at the matter of Triple Talaq, Nikah Halala and polygamy. Thereafter, Mrs. Shayara Bano of Allahabad, who was divorced from her husband through triple talaq filed a writ petition under article 32. In her submission, she wrote”This practice of talaq-e-bidat (unilateral triple-talaq) which practically treats women like chattel is neither harmonious with the modern principles of human rights and gender equality, nor an integral part of Islamic faith, according to various noted scholars. Muslim women have been given talaq over Skype, Facebook and even text messages. There is no protection against such arbitrary divorce. Muslim women have their hands tied while the guillotine of divorce dangles, perpetually ready to drop at the whims of their husbands who enjoy undisputed power.”She also mentioned that the legislature has failed to ensure the dignity and equality of women in general and Muslim women in particular especially when it concerns matters of marriage, divorce and succession.
In the same case, AG Mukul Rohatgi observed that”Gender equality, gender equity and a life of dignity and status is an overreaching constitutional goal.“Adding that the practices which are under challenge, namely, triple talaq, nikah halala and polygamy are practices which impact the social status and dignity of Muslim women and render them unequal and vulnerable qua men belonging to their own community women belonging to other communities and also Muslim women outside India. Article 25 of the Constitution which confer the right to practice, preach and propagate religion are “subject to the provisions of Part III”, which means that it is subject to Articles 14 and 15 which guarantee equality and non-discrimination. In other words, under our secular Constitution, the right to the freedom of religion is subject to and in that sense, subservient to other fundamental rights such as the right to equality, the right to non-discrimination and the right to a life with dignity.
Consequently, the court after daily hearings came to the conclusion with majority of 3:2 that the triple talaq is unconstitutional and directed the central government to make legislation within 6 months i.e. by 22nd Feb 2018. Complying with the orders of the apex court the central government drafted the bill “Muslim Women Protection of Rights on Divorce) Bill 2017 states that the Muslim husband will be punished with 3 years of imprisonment if he gives the instant divorce. The bill is yet to be passed by Parliament.
(Written By Author, Neha Sharma, New Delhi).
[maxbutton id=”4″ ]