Of all the lawful acts the most detestable to God is divorce.
– Prophet Mohammad
The Law of Talaq has been subjected to a long-running debate and controversy among Muslim scholars. Each community has its own set of personal laws in matters relating to their family affairs including that of marriage, divorce, succession, etc. The Indian judiciary respects these personal laws but when there any derogation or conflict arises between these two laws i.e., the general law governing country (Indian Constitution) and personal laws, the general law of the land prevails. In several cases, the Hon’ble Supreme Court has struck down the provisions of personal laws if it is found to be violative of fundamental rights and basic human rights enshrined under the Indian Constitution. The word Talaq means “repudiation” or “rejection.”It is a unilateral right provided to man to divorce his wife, he can anytime give divorce to her wife, without stating any cause, after attaining puberty; but the Muslim husband cannot give Talaq to her wife during iddat period i.e., 4 months and 10 days. There are different ways in which divorce or Talaq can be given by the husband.
The dissolution of the marriage can be done in any of the four ways provided, which include:
- By husband,
- By wife,
- By mutual consent and
- By judicial separation provided under dissolution of Muslim Marriage Act, 1939.
The fact that a Muslim wife can be rendered by her husband just by one stroke of his tongue as opposed to the lengthy procedure of ‘khula’ ( mutual consent) where the woman has to undergo to liberate herself from a cruel husband, has been lamented time and over.
There are different forms of Talaq (extra-judicial divorce) provided under the Muslim law which include:
- By husband- Talaq-ul-Sunnat, Talaq-ul-biddat, Ila and Zihar,
- By wife- Talaq-i-Tafweez, lian and khula,
- By mutual agreement-mubarat.
1. Talaq-ul-Sunnat: – It is regarded as an approved form of Talaq and it is a revocable form of Talaq. It may be pronounced either in ahsan or in the hasan form. Under Talaq-ul-Sunnat, there are two forms of Muslim marriage that can be repudiated; ahsan and hasan.
- Ahsan: – It is considered as the most proper form through which the marriage can be repudiated. Various procedures are needed to be followed in Ahsan Talaq. The husband is required to make a single pronouncement of Talaq during the tuhr of the wife. (Tuhr is the period between two menstruations.) But if the woman is not subjected to menstruation due to any reason, then in that case Talaq may be pronounced against her any time.
- Hasan: – It is the approved form of Talaq. Certain proceduresneed to be followed under this, such as a single pronouncement of Talaq in the tuhr period, another single pronouncement in the other period and another pronouncement in the third period of tuhr. After the third declaration, Talaq becomes irrevocable and the wife is required to observe iddat.
2. Talaq-ul-biddat: – It is the disapproved form of Talaq and this Talaq becomes effective soon after the words are pronounced. It is irrevocable form of Talaq and there is least or no chance of conciliation between the parties. It is recognized only under Sunni Muslims. There are mainly two methods of pronouncing Talaq-ul-biddat, i.e., by single declaration or by triple declaration (Triple Talaq). However, this mode of Talaq has been abolished by the Hon’ble Supreme Court in the case Shayara Bano vs. U.O.I (2017) 9 SCC 1.
3. Ila: – It is a constructive divorce that is affected by withdrawal or abstinence from sexual intercourse by husband for consecutive four months.
4. Zihar: – It is a form of inchoate divorce where the husband compares his wife to his mother or any other female member of his family within the prohibited degree and the wife has the right to ignore him or to refuse to cohabit with him unless the husband performs penance.
In the case of Masroor Ahmed vs. State (NCT of Delhi) and Anr. , the court observed that Ila and Zihar are virtually non-existent in India and also held that reasonable cause must be provided that there were attempts made for conciliation between the parties after the pronouncement of Talaq.
There are modes of Talaq that can be given to the wife which include Talaq-i-Tafweez, Khula, and Mubarat. Then, after these extra-judicial divorces, there comes judicial divorce which is regulated by the Dissolution of Muslim Marriages Act, 1939 and there are ten grounds provided on which a female (wife) can claim divorce under the aforementioned act.
Origin of Triple Talaq
The concept of triple Talaq didn’t exist amid the time of Prophet Mohammad, Caliph Abu Bakr, and Caliph Umar. This form of Talaq was presented by the Omayyad kings and it turned into general practice to profess divorce three times in a single setting, since then this practice is misused by the Muslim men and the muftis for their motives.
It has been opined by the Shah Waliyullah, who is a prominent Islamic researcher that is unfair to apply Arab customary law to non-Arabs (Indians). Many countries including Egypt, Sudan, Syria, and Tunisia have acquired substantial changes in their laws to invalidate what is known as ‘Triple Talaq’ issued in one session and most of these countries were influenced by the position of Ibn Taymiyyah. Informing the Qazi before offering divorce to the wife is a condition precedent in Sri Lanka. If after every attempt made for reconciliation and saving the marriage fails, then the spouse can proclaim Talaq to wife before the sight of Qazi and two qualified witnesses. Various countries such as Jordan, Afghanistan, Libya, Kuwait, Yemen, United Arab Emirates, Qatar, Bahrain, Morocco, and Iraq comply with the same pattern as provided under the Muslim Family Law Ordinance of Pakistan, 1961.
There was also the passing of the Shariat Act, 1937, and section 5 of the Act contains the provision for dissolution of marriage and stated certain grounds for seeking a divorce. Later on, section 5 of the Act was deleted, and eventually, the Dissolution of Muslim Marriages Act, 1939 came into force and replaced the Shariat laws.
Present Scenario of Triple Talaq
The practice of ‘Triple Talaq’ is not recognized as a moral practice according to society’s standards. The topic of triple Talaq in India has raised many issues such as justice, gender equality, human rights, and secularism and this subject is connected to the debate about the uniform civil code (Article 44). In the year of 2017, the Hon’ble Supreme Court held the triple talaq unconstitutional. There are 23 countries in the world including India and its neighboring countries Pakistan, Bangladesh, and Bangladesh that have abolished triple Talaq. After a long discussion and opposition, the Parliament of India declared Triple Talaq as illegal and unconstitutional and passed The Muslim Women (Protection of Rights on Marriage) Act, 2019. According to the provisions of the aforementioned Act, instant triple Talaq in any form whether written, oral, and spoken, or in any electronic means is illegal and is punishable by up to three years of imprisonment for the husband doing so. In the case of Smt. Sumaila vs. Aaqil Jamil and Ors. Where the wife was divorced by her husband by triple pronouncement and the High Court of Allahabad considered as being wrongful and violative of Article 14 of the Indian Constitution (the right to equality). In another case of Mohd. Ahmed Khan vs. Shah Bano Begum, the Hon’ble Apex Court went beyond the principles of Islamic law and this decision of the Court was also accepted by the All India Muslim Personal Law Board. After the passing of this judgment, there was great resentment among the Muslim community and later on, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed.
In the case of Danial Latifi vs. U.O.I., the Apex Court of India nullified the aforementioned Act and upheld the decision of the Shayara Bano case, which was a ray of hope for the Muslim women.
Since the passing of the Muslim Women (Protection of Rights on Marriage) Act, 2019 by the government, there has been about 82% decline in the triple Talaq cases and the enactment of the triple Talaq law has strengthened the socio-economic, fundamental, and constitutional rights of the Muslim women all over India.
Talaq-Ul-Biddat is not recognized in the Quran
The Holy book of the Quran is considered as one of the first texts which consider individual freedom above community perceptions. There are several modes of Talaq recognized under Quran but the triple Talaq is not recognized under it. Both Triple Talaq and nikah halala are not prescribed under the holy Quran which is the main source of Muslim Law. The practice of pronouncing this one-sided irrevocable form of Talaq by Muslim husbands does not keep up with the progressive spirit of the Quran and this practicing of triple Talaq in the name of customs is a social evil that keeps on proliferating as a result of the ignorance of the community leaders and community itself.
In Shamin Ara vs. the State of U.P., strict Quranic injunctions were laid down by the Hon’ble Supreme Court for pronouncing Talaq. The Talaq must be based on reasonable grounds and it must be preceded by attempts to reconciliation between the two parties.
Talaq (triple Talaq) in which there was no opportunity for reconciliation was never recognized by the Prophet. Talaq is tolerated by Islam by making provisions for it under highly unfavorable conditions only as a last resort. The meaning of Biddat is innovation in religion and is unacceptable in Islam. This form of Talaq is usually followed by the Sunni sect but it is not recognized and practiced under the Shia sect. There is no verse in the Quran which validates instantaneous Triple Talaq.
Violation of Fundamental Rights
The practice of Triple Talaq, which was abolished in the year of 2017, was an infringement and violation of various fundamental rights guaranteed under Articles 14, 15, 21, and 25 respectively of the Indian Constitution. Talaq-ul-Biddat defaces the essence of Article 21. It is also provided under Article 13 of the Indian Constitution that any law in derogation with the fundamental rights shall be considered void; so, the unilateral right of the husband of giving this irrevocable Talaq is also void. Article 14 will only serve its purpose when the divorce is granted with the due intervention of the courts, established under law, and only when the interests of both the parties can be achieved while resolving their marital disputes. In the case of A.S. Praveen Akhtar vs. U.O.I., it was held by the Hon’ble Apex Court that the assumptions and beliefs upon which triple Talaq is recognized are factually false, scientifically untenable, and contrary to the spirit and provisions of the Constitution.
Although Triple Talaq has been abolished in the Shayara Bano vs. U.O.I. in the year 2017 by the Hon’ble Supreme Court and since then various attempts were made and are being made for uplifting Muslim women’s social status and providing them with equal rights as men, there are still some loopholes and there should be certain steps taken by the government for the betterment of Muslim women and society as a whole. There should be enactment and implantation of the Uniform Civil Code by the government. The Uniform Civil Code will bring uniformity among different sections of society; there would be more harmony and less conflict among the people as it will supersede the customary laws, which will further expunge the confusion of implementation of laws over the society. The existing personal laws need to be rectified and gender discrimination must be abolished. Thus, these are certain suggestions that can help make personal laws gender-neutral and uniform.
It’s an era of women empowerment and encouragement and the abolished Triple Talaq will lead to gender equality, empowerment, and protection of the rights of Muslim women. The Triple Talaq bill has been passed in the year 2019 which abolished the irrevocable Talaq and considered it as a compoundable offence that is punishable up to three years in jail. Triple Talaq is banned in more than 20 Islamic countries including Pakistan, it has led to the subjugation of Muslim women since seventy-two years of independence but its solution must be provided and implemented in a more coexistent manner.
This article is authored by Akanksha Pandey Student at Law College Dehradun, Uttaranchal University.
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Table of Contents
WHAT ACT IS IN PLACE TO PROHIBIT TRIPLE TALAQ IN INDIA?
The Muslim Women (Protection of Rights on Marriage) Act, 2019 was enacted by the Parliament to criminalize the practice of Triple Talaq in India. The Act also safeguards married Muslim women’s rights and prevent divorce by pronouncing talaq by their husbands. It also covers any other issues that arise as a result of triple talaq or in connection with it.
HOW CAN A MUSLIM WIFE GET A DIVORCE UNDER THEIR PERSONAL LAW IN INDIA?
Muslim women can avail divorce from her husband either via Talaq-i-Tafweez, Lian or Khula.
Talaq-i- Tafweez: The consent of the husband is necessary for a divorce under Talaq-i-Tafweez. The husband is allowed to assign his right to divorce, to anyone, including his wife. On behalf of the husband, this designated individual has the authority to issue divorce.
Lian: In order to get divorce under Lian, the two requirements are, the wife must be accused by the husband of adultery and secondly, the accusation must be proved false.
Khula: Under Khula a wife is allowed to divorce her husband by returning the dower or mahr.
WHAT ARE THE THREE KINDS OF TALAQ PRACTICED IN THE MUSLIM SOCIETY?
The three kinds of Talaq are, Talaq-e-Biddat, Talaq-e-Ahsan and Talaq-e-Hassan. Though, Talaq-e-Biddat is not prescribed by the holy Quran.
WHY IS TRIPLE TALAQ UNCONSTITUTIONAL?
Triple Talaq is held to be unconstitutional as it is violative of, Right to Equality (Article 14 of the Indian Constitution). Triple Talaq is in contradiction of Shariat and the Quran’s core teachings.
CAN THE PERSONAL LAWS CONTRADICT THE CONSTITUTIONAL PROVISIONS?
The Law Commission held the opinion that personal laws cannot be complied in a way that disapproves of the constitutional provisions. The Commission also opined that in the absence of a Universal Civil Code, ( UCC) the best way ahead is to retain the diversity of personal laws, while also ensuring that personal laws do not conflict with fundamental rights upheld by the Indian Constitution.
WHAT IS UNIFORM CIVIL CODE?
Uniform Civil Code or UCC proposes the creation of a single law for India that would apply to all religious sects. It includes topics like marriage, inheritance, divorce and so on. Article 44 of the Constitution, which states that the state must work to ensure that citizens across India have access to a uniform civil code.