Justice For Muslim Women Against Triple Talaq

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Introduction

The institution of marriage serves to fulfill two basic principles: 1) legalizing sexual intercourse between the partners, and 2) legitimizing procreation. With respect to these functions, two popular views of marriage come into question. One view supports the assertion that marriage under Muslim law serves to function as a civil contract, working to solidify the position of women in society as distinct from their husbands in terms of their own individuality, and at the same time binds them into a contract with their husbands that’s expected to last a lifetime. This view of Muslim marriages as a contract is purported by all schools of Islamic law and it is this contractual nature that serves to act as the pillar stone to solidify these marriages, both religiously and legally. Thus, in essence, marriage among Muslims can be seen as sacramental contracts, sanctified by sermons and aiming at the continuance of the generations to come.

As marriages are contracts of a sentimental and sacramental type, they are not assigned a period after which they may expire. However, a number of factors can lead to the dissolution of marriages, and this can have different implications for men and women. The Islamic law recognizes Talaq as the worst of all things that are permitted and asks the husband to defer from it if possible. However, it nevertheless does not curtail the possibility of termination of marriage.

A prerequisite to understanding the dissolution of marriages among Muslim, is to understand the distinction between talaq and divorce. The term divorce is used to refer to the separation of two parties in contract of marriage in a wider sense. Talaq, on the term hand, is used in a restrictive sense and is a unique property of the Islamic religion, unlike divorce. Talaq can function either through the utterance of certain words by the husband or may involve repudiation of marriage based on different causes originating from the husband.

Talaq And The Position Of Women

The initiation of divorce can be from the side of both the parties, however, rights and obligations differ vastly. A marriage can be dissolved upon the death of a spouse, or through divorce. The wife here is bound to more stringent conditions than the husband, as in the former case while the husband can remarry immediately upon the wife’s demise, the same is not true for the wife if her husband expires. Talaq, Ila, Zihar, Khula are the four recognized forms of divorces which entail upon the woman the freedom to remarry only after a prescribed period of time, known as iddat. Even when divorce is taken into account, the rights of the wives are minimal with respect to their husbands. When a divorce agreement is initiated by the wife, it becomes necessary to obtain consent from her husband. However, seldom is her own consent taken into consideration when the tables are turned, unless the divorce is through mutual agreement. This functions to ensure that women lack security in the institution of marriage, while at the same time bestowing upon the husband rights that make him the dominant party in the relationship. This goes against the very principles of marriage in Islam, as they pledge to provide an identity to women that cannot be infringed upon by their husbands.

The pronouncement of talaq is a capricious act, as it is not bound by causes or explanations on part of the husband and it functions to supplement the arbitrary exercise of power by him, without paying any heed to the repercussions it can have for the wife. The complete disregard of a woman’s will while dissolving a union as primary as marriage functions to reiterate orthodox patterns where women are treated not as fellow humans, but objects of possessions to be discarded based on one’s own convenience. The existence of pronouncements of marriage dissolutions that are irrevocable in nature further delimit the possibility of saving a marriage from estrangement.

Triple Talaq – A Historical Overview

The concept of Triple Talaq is a disapproved form of divorce and does not command sanction from either the Holy Quran or the holy Prophet. It is deemed to be an innovation within the fold of Shariat and was not practiced during the time of the first Caliph Abu Bakar. This practice germinated with the Arabian invasion in the Islamic states of Syria, Persia and Egypt among others and was used as a device to curtail the unhinged use of divorce by the second Caliph Omar. According to the Quran, divorce is permissible only twice and becomes irrevocable when pronounced on the third occasion. Further, such divorces are to be pronounced on three separate occasions, thus, pronouncing three divorces at one sitting does not result in the final dissolution of marriage and the husbands can still accept their discarded wives.

This practice led to unaccountability by the husband towards their wives and was massively misused. Antagonized by how trivial such practices made marriage out to be, Caliph Omar mandated stringent repercussions to be followed in order stop men from taking divorces lightly. In effect, three repetitions of the word talaq at one sitting was held to amount to Mughallazah or final divorce and left no scope for the men to reunite with their wives afterwards. The juxtaposition of Caliph Umar’s intention in treating it as a Mughallazah divorce and its journey up to the modern times as an instrument of abuse and maltreatment of women cannot be overstressed.

Triple talaq, while regarded as bad in religion, still holds juristic validity in the Islamic court and would be approved by the Qadi (a judge of Sharia Court). The condition attached to the irrevocability of such pronouncements is the repetition of the word “talaq” three times and would fail to be operative if replaced by similar sentences that convey the same message. Thus, while the operative usage of triple talaq as meaning the final termination of a marriage was made with a view to discourage people from this course of action, it had a contradicting ripple effect which popularized its usage for centuries as an evil mechanism and led to a system where the wife was made into a property that could be abandoned whenever so pleased by the husband. It invested men with oppressive rights while subjecting women to a life with no security or assets and no place to go to for remedy.

The Journey Towards The End Of Misogyny: Illegalizing Triple Talaq

The Indian judicial system stands guilty of the acceptance or rather tolerance of triple divorce as a legally valid concept. The Court often cited how although theologically talaq-e-biddat is a detested practice, it holds good in law. It actively endorsed this heinous practice in the instant case of Sara Bai vs Rabia Bai[1], where the High Court of Bombay denied maintenance and residence rights to the widow by holding the triple pronouncements made by her husband during his lifetime in the presence of Qadi irrevocable. The presence of wife was also not deemed necessary by the Courts for rendering the marriage tie as broken instantly upon the husband’s clear vocalization of interest towards the dissolution. This issue was debated by the Madras High Court in Aisha Bibi vs Qadir Ibrahmin[2], where the Court observed that the presence of wife for the execution of talaq is unnecessary if the following conditions are met – a clear intention to dissolve the marriage, addressed to the wife in a particular sense, followed by a deed executing the divorce stating that the three divorces were given in the form of biddat. This decision found further support by the High Court of Calcutta which reiterated in the case of Fulchand vs Namal Ali[3] that the absence or presence of wife is of no consequence to the effectiveness of triple divorce.

On instances where the courts did not endorse this practice, they pleaded helplessness in bringing changes to the customary law through judicial interpretations. The Court in the instant case of Ahmad Giri vs Mst. Megh[4] observed that, “The talaq ul-biddat is the most prevalent form of obtaining divorce in India. Any change in this respect cannot be brought about by judicial interpretation. If there is a general desire among the Muslim to revert to the pristine purity of Islam, how such changes in the present state of Muslim Law can be brought out, in the words of late Syed Amir Ali, “Whether by general synod of Muslim doctors or by the direct action of the legislatures, it is impossible to say.”

Justice Krishna Iyer was among the first judicial officers to point out the fallacy of the law behind triple talaq. He opined how this practice vests unbridled powers in the male to liquidate the solemn ties of marriage. When hearing the case of Yusuf vs Sowramma, he noted that the way the Islamic customs operate in India are opposed to the very spirit of the Holy Prophet and the tenets of Holy Quran and the false narrative that the misconceived exercise of such customary laws creates vitiate or undermine the rights of women to divorce.

The effects of Talaq-ul-Biddat in widening the gender gap and perpetuating male authoritarianism was brought to light by Justice H.N. Tilhari of the Lucknow Bench, Allahabad High Court in 1994. Justice Titlhari’s comment in the case of Rahmatullah vs State of UP[5] recognized how not only such practices have no true Islamic sanction but also operate against the will of Allah to bring forth the reunion of the couple, as it does not factor in a period of wait that would allow the partners to reconcile and resolve their problems and differences.

Arguing for a codified law dealing Muslim personal laws relating to marriage and divorce, Justice Tilhari cited Justice Krishna Iyer’s comment[6] in support of his argument, “Reform of law of marriage and divorce for Muslims as for others must be guided by right principles. In any matter of family law reform there are, I think three clear competing issues, all of which have to be weighed – First and foremost, there is the strong interest of the society generally that everything to be done to encourage and maintain stability and permanency of family unity not only for the sake of couples but also for the sake of children. Secondly, there is public interest in allowing which have hopelessly broken down decently and rationally dissolved. Thirdly, there is public interest that in any matrimonial disputes justice should be seen to be done so that clearly guilty party should not be permitted to profit from a situation which he and he alone had been instrumental in creating.”

In a landmark judgement the Apex Court clarified the right application of the Islamic law of divorce to counter its widespread distorted application in India. This judgement of the Supreme Court in Shamin Ara vs State of Uttar Pradesh[7] was put forth once again in 2004 where it was reiterated that the correct law for talaq in accordance with Quranic principles insinuates the presence of certain precedents to effectuate the divorce, these include a reasonable cause for severance, attempts to reconcile the relationship between the husband and wife by two arbiters, preferably elder members of family, from one the side of both the spouses. A juristic version of the Islamic divorce law was brought to light through these cases where it was asserted that the husband’s alleged divorce to the wife must be supplemented by concrete evidence to the satisfaction of the court for the divorce to hold good in the eyes of law.

The judgment that was finally able to secure justice to the Muslim women by declaring void and unconstitutional the evil practice of triple talaq that was fed and nurtured under the cloak of faith and religious sentiments was Shayara Bano vs Union of India[8]. In this case, the applicant, Shayara Bano, filed a writ petition in the Supreme Court requesting it to declare talaaq-e-biddat, polygamy and nikah-halala unconstitutional on ground that they violate Articles 14, 15, 21, 25 of the Constitution which deal with right to equality, right to life and religious freedom. The Supreme Court Bench in this case constituted of Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Niraman, Justice Uday Lalit and Justice K.M. Joseph, where each judge debated the issue from different angles. While Justice Niraman pointed out that triple talaq cannot be given protection under Article 25 of the Constitution as it is not an integral part of Islam, it was Justice Josheph’s arguments that were grounded and backed by religious arguments, instead of constitutional, that helped counter the communal tension attached to the issue.

However, while this judgement was a huge milestone in history of judicial pronouncements, it nevertheless needed the backing of a legislation to monitor and ensure people’s compliance with the court order. Thus, focusing on issues of gender justice, the Muslim Women (Protection of Rights on Marriage) Bill was tabled in 2017 and finally passed as an Act criminalising triple talaq after a buffer of 2 years in 2019.

The main elements of The Muslim Women (Protection of rights on marriage) Act, 2019 can be summarised as:

  1. Offences and Penalty – It declares both written or in electronic forms of triple talaq as void and illegal by considering it as a cognizable offence with imprisonment up to 3 years plus fine.
  2. Who can file the complaint? – Only a legally wedded wife or her blood or affinal relatives
  3. Bail – It can be granted by the Magistrate at the instance of wife and if there are reasonable grounds.
  4. Allowances and Custody – The wife is entitled to seek subsistence to maintain herself and her dependant or minor children.

 Triple Talaq: An Evil Buried or An Evil Alive

While marriage is a sacrament, divorce is a necessary evil. It provides a path to leave relationships that symbolize not love and trust but abuse and dishonesty. However, all rights come with attached restrictions to prohibit an unmonitored and rather incorrect utilization of such rights. An evil, however necessary, when left to function without a leash can have disastrous applications and override the very fabrics on which a just society is based. The fight towards the inequality rendered by practices such as triple talaq has been long drawn and full of hurdles, however, the question is whether it has come to its conclusion or not.

History lays witness to the unfortunate truth that although there remain legislations intact to combat all possible evils, the evils continue to persist and flourish despite of them. The Act of 2019 resulted in a significant decrease in the number of reported triple talaq cases yet leading to the present time women continue to suffer at the whim of ruthless husbands who abandon them without explanation or cause. What is imperative is a recognition of rights of women and their acceptance not only on paper but in the socially grounded reality. Faith and human rights should not be construed as opposite pillars but as extensions of the same genesis.

Conclusion

Triple Talaq is reflective of not just a complete abandonment of consideration of the repercussions it has for women but also locates them at a position inferior to that of men. These practices severely downplay the importance of a woman’s consent about the breakdown of her own marriage, while at the same time contributing to the maintenance of old patterns of patriarchic dominance. The installation of such devices is violative of human rights and also work to undermine the sanctity of marriage which is regarded as a sacrament in our country.

Judiciary’s prime role in any state is to ensure the deliverance of justice through adjustment of laws and provisions that do not play an essential role in the maintenance of the system in the contemporary landscape. Several landmark legislations, such as those birthed from the Shayara Bano case, have helped in curtailing unjust practices like triple talaq. Basic tenets of the constitution such as judicial review ensure that constitutionality of legislative acts is maintained. Especially in a country like India, which prides itself with the manifestation of secularity in its preamble, legislations that question practices that are violative of essential human rights become all-the-more crucial. It was in this fashion Union Minister of Law, Ravi Shankar Prasad, put forward this question during a parliamentary debate – “Twenty Muslim countries in the world, including Pakistan and Malaysia, have banned triple talaq. Why can’t a secular India do it? The core philosophy of our Constitution is gender justice, irrespective of religion. We want to give honour and justice to the women”

The date August 22, 2017, that is, the day when triple talaq finally became unconstitutional, will forever be marked in the history as the day our judicial system embarked further on a progressive journey of securing equal status and true justice for the woman of Islam. The consequent enactment of the Muslim Women (Protection of Rights on Marriage), Act 2019 is representative of the larger struggle of women and the protection of muslim women’s human rights as the husbands can no longer continue to leave their wives astray without as much as a justification. These steps, however, are not the end but the path towards the creation of a country that is secular in the true sense, a country that protects the rights of its women no matter what religion they identify with.

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References

[1] I.L.R (1905) 30 Bombay 53

[2] (1910 3, Madras 22.

[3] (1909) 36 Cal. 184.

[4] AIR 1955 J&K 1.

[5] 1994 (12) Lucknow Civil Decision, p. 463

[6] Krishna Iyer : The Muslim Women (Protection of Rights on Divorce) Act, p. 79

[7] AIR 2002 SCC 3551

[8] 2017) 9 SCC 1 Writ Petition (C) No. 118 of 2016

Author: Tushti Ratnapriya Thakur (Amity Law School, Noida)


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