TRIPLE TALAQ: FROM JINX TO JUSTICE
[Vol 3/Issue 1/ April 2017]
BBA LLB (H)
Amity Law School, Noida
Email id: email@example.com
ISLAM, ONE of the greatest of world religions through the 1500 years of existence, has been by far the most misunderstood and misrepresented.The issue of the ‘triple divorce’ is regarded as highly sensitive among the Muslims, not only in India but elsewhere. The Holy Quran is very cautious in matters of divorce.The practice of triple talaq has been in existence in the Muslim community since centuries. Muslim men divorce their wives in one sitting with or without the presence of the wife. This form of talaq is not approved by Quran and many eminent Islamic scholars have rejected triple talaq. The court has taken into notice of this practice and observed that this form of talaq is unilateral and discriminatory. The courts have held this form of talaq as invalid and laid down proper procedure of talaq by interpreting the verses of Quran. Triple talaq is violative of the provisions of Constitution pertaining to fundamental rights. This article explains the different theories of divorce prevailing in the contemporary Muslim world .The article critically appraises the ‘innovative triple divorce’ by examining whether it is sanctioned by the Holy Quran or not. Next portion of the paper suggests for the Uniform Civil Code to be implemented for curbing the atrocities which was being faced by a particular section of the society.
Unequivocally declaring divorce to be Abghad-ul-mubahat (worst of all permitted things, the prophet warned his people in these words to keep away from it :
“Enter into marriage and do not dissolve it. God curses those who change their life partners for the sake of pleasure. “
Muslim Law infact stands for what is now known as the breakdown theory of divorce. The Quran did not specify any matrimonial offences; and the prophet laid down no bars to matrimonial relief. The modern breakdown theory of divorce does not want the court to go into the causes of the breakdown of marriage ; the law-giver of Islam did not want the matter to be taken to the court at all unless it became wholly unavoidable. Very unfortunately Muslim men in India are blissfully unaware of the true islamic law in divorce and believe talaq-ul-bidat to be the only islamic way of divorcing their wives. This is indeed a devastating state of affairs playing havoc with muslim women.
“TALAQ” UNDER MUSLIM LAW
Originally ‘Talaq’ means rejection or repudiation and under Muslim law it means a release from the marriage tie, eventually or immediately. A Talaq may be effected by the husband in any of the four methods that are talaq-ul-sunnat, talaq-ul-biddat, Ilaand Zihar. In the case of Moonshee Buzloor Rahim vs Laleefutoon nisa, the court held that under Muslim Law talaq is merely an arbitrary act of a muslim husband who may repudiate his wife at his own pleasure with or without cause.
Talaq in Islam can be divided into three types –Talaq-e-Ahsan: The husband gives talaq to wife (in a single sentence) in state of purity (tuhr) and waits for period of iddat. This type of talaq is revocable during the period of iddat. After iddat, it becomes irrevocable. However, it is revoked if the couple cohabits within 90 days ;Talaq-e-Hassan: There must be 3 successive pronouncements of talaq, BUT three pronouncements are to be made in 3 successive tuhrs (in case of menstruating women) OR consecutive intervals of 30 days (in case of non-menstruating women). It can be revoked anytime before the third pronouncement.If the third talaq is pronounced , divorce becomes irrevocable.
Talaq-e-biddat:It means instantaneous divorce or triple talaq.This type of talaq is not purely Islamic. It was innovated later (during the Umayyads) to suit patriarchy. Here 3 pronouncements can be made during a single tuhr. (Instant Talaq), i.e. by saying “I divorce thee” thrice at the same instant.The practice goes back to the 8th century and is sought to be given recognition by the Hanafis, one of the four Sunni schools. Even Hanafis call it “Sinful form of divorce but good In Law”.
‘Triple Talaq’ is the term used to signify the methodology of divorce in Islam. Usually the term is used to signify that after saying divorce three times, the couple cannot be together.
In Sharia law, there are broadly two kinds of talaq :
1. Talaq al ahsan, which is done by saying a single word ‘talaq’ 3 times, with an interval of one month every time. The talaq becomes complete when the third time the word ‘talaq’ is used.
2. Triple talaq, or talaq ul biddat, which is done by saying ‘talaq’ 3 times one after another, with no interval of time. So this results in immediate divorce. As a matter of fact, this is the most widely practised method.
This Talaq is also known as Talaq-ul-Bain. The most distinctive feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Sharia. It commands neither the sanction of Holy Quran nor the approval of the Holy Prophet.
TRIPLE TALAQ- VIOLATIVE OF OUR FUNDAMENTAL RIGHT OR NOT?
Justice Nariman said “Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbitrators from their families, which is essential to save the marital life cannot ever take place…It is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained in article 14 of the constitution and therefore must be struck down as being void to the extent it recognizes and enforces Triple Talaq.”
TRIPLE TALAQ BANNED: MUSLIM WOMEN REJOICE THE HISTORIC JUDGMENT
The Supreme Court on 22nd August, 2017 created another benchmark by striking down the long practiced Islamic practice of Triple Talaq, terming it to be unconstitutional and violative of the fundamental rights of women. The verdict was given by a majority of 3:2.
A unique combination of 5 Supreme court judges belonging to different faiths presided ovr the constitutional validity of instant triple talaq. Three of the judges Joseph, Nariman and Lalit, said “What is sinful under religion cannot be valid under law”. “triple talaq may be a permissible practice but it is retrograde and unworthy.” “since triple talaq is instant it is irrevocable and the marital tie gets broken, it violates the right to equality,” the judges observed.
By declaring triple talaq as unconstitutional, the Supreme Court overturned an 85-year-old judicial decision that had upheld the validity of the controversial practice permitting a muslim man to instantaneously divorce his wife.In 1932, triple talaq had come up for scrutiny before the Privy Council, when a Muslim women Anisa Khatun narrated a tragic story. She was married to Ghiyas-ud-din on August,1905 and just a fortnight later, he uttered triple talaq. The Privy Council held triple talaq to be a legitimate method of divorce. The Supreme Court for the first time in 2002 in Shamim Ara vs UP case observed that triple talaq lacked legal sanctity.On Tuesday,the majority in the Five-judge Constitution bench said that the 1932 Privy Council verdict did not hold good after Shamin Ara judgement.
Triple Talaq is not a principle of Islam, but is rather a ruling of certain Muslim jurists, adopted in the later period of Islam.In Islam, divorce is considered as an undesirable practice. But in rare cases, a couple may feel their marriage is not working and in this situation, divorce is allowed.The abolition of Triple Talaq by the supreme court is a big victory. It has not only created a benchmark in the law fraternity but has also given new wings to Muslim women.
FROM SHAH TO SHAYARA: HAILED VICTORY OF INJUSTICE FROM 3 WORDS
The journey of “Muslim women’s rights” from Shah Bano to Shayara Bano is significant for the transition of congress from the Rajiv to Rahul era. Rahul Gandhi welcomed the Supreme Court’s quashing of ‘instant triple talaq’ and complimented the women who fought for justice.Around 3 decades back the Supreme Court had ordered maintenance to be paid to a Muslim woman who was a victim of triple talaq. The case famously came to be known as the Shah Bano case. The Parliament in 1986, indeed, did legislate on the matter of the Muslim Women’s Bill – but instead of supporting and validating the Supreme Court’s verdict the year before, Rajiv Gandhi used his monstrous majority in the Lok Sabha to overturn a perfectly fair and righteous judgement and declare it invalid.
Meanwhilein Shayara Bano, a young sociology graduate was married off to Rizwan, a property broker in Allahabad. She was forced to undergo several abortions because Rizwan wouldn’t get a vasectomy or tubectomy, because he believed they were “haram.” He refused to let her meet her sister. He denies beating her but soon enough he asked her father to come and take her home. The triple talaq arrived soon, in a letter.Shayara Bano went to the Supreme Court, along with four other women. They insist they aren’t challenging the Quran’s admissible right to divorce over 90 days, just this particularly heinous “talaq-e-biddat.”
From Shah Bano to Shayara Bano, its been a long journey for Indian Muslim women challenging governments to uphold their rights to life and liberty under the Constitution.
UNIFORMITY: NOW IS THE MOMENT
An ideal Uniform Civil Code is easier to discuss than to enact; there has never been a clear draft to such a code. It was first raised as a demand in the 1930’s by the all Indian women conference, seeking equal rights for women, irrespective of religion in marriage, inheritance, divorce, adoption and succession.India’s first Prime Minister JawaharLal Nehru professed his keen desire to have a uniform civil code (UCC), but though he succeded in codifying Hindu law, his government took no step towards reform of Muslim personal laws and sidestepped a question of a Uniform Civil CodeThe only thing which BR Ambedkar could get was article 44 In the directive principles that said “the state shall endeavour to secure for the citizens a uniform Civil Code”.
In 1986, the supreme court’s Shah Bano judgment for maintenance was amended by parliament, in a way that placated the Muslim clergy. Muslim personal law has not been codified by the Parliament. Judges have to rely on Islamic jurisprudence in a case-by-case manner.
With a Uniform Civil Code, polygamy and arbitrary divorce associated with Islam would go, as would the tax benefits of the Hindu Undivided Famiy. Many feel the state should push for uniform rights rather than a single code. They call for rooting out gender bias within existing personal laws, rather than flattening religious difference under a code.
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dated (April 20, 2015 11:22 am)
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