December 3, 2020

THE UNHOLY TALAQ

Abstract

There have been several social evils in Indian society right from the Sati Prathato Triple Talaq. Indian society has always been adaptable to the changing social order. The society had always eliminated all such evils which became a barrier in the development of the society and the individuals. This Essay primarily focuses on the evil of Triple Talaq and how the legal battle takes it to its fate. Various documents and necessary materials have been used as a helping document in writing this Essay. A comprehensive and critical analysis has been done of the main issue i.e. Triple Talaq, way back from its inception till the day of enactment of the new law. The essay helps in understand the entire problem that has been a bone of contention between the orthodox stereotypes of the Muslim community and the government. It also helps in understanding how the legal battle resulted in declaring it unconstitutional and how the law helps in achieving the aim of the essential constitutional principles. The essay at the end recommends how this issue should be dealt with by the government and the Muslim community together so that the law does not become a dead letter. Further, there are some conclusions and recommendations for bringing all personal laws on the same page by enacting a Uniform Civil Code and the need to address some other social evils like the nikah halala and polygamy which are inhumane and against the soul of principles of human dignity.

Introduction

“If you want to see the true measure of a man, watch how he treats his inferiors, not his equals.” These words of J.K. Rowling are very helpful to understand the ordeal of the half of the population I.e. Women in today’s world. There are very few things on the planet which are pious and which makes someone feel extremely happy. Marriage is among one of them. People may have different opinions about the relationship between the two lives. Marriage is considered a part of the personal laws of different religions and sects. Hindus have their laws so the Muslims do. Christians have their laws that deal in marriage, divorce, and other related things so do Sikh, Parsi, Jains, and Buddhists have. Everyone is governed by these laws, which are sometimes found in custom and usages form and sometimes in legislations made by the competent legislative authorities of the State. These laws and customs trace their source of origin somewhere from the holy or religious books of the respective religion. For instance, Muslim personal laws are made only in line with Muslim jurisprudence laid down in the Quran and the Shariat.

Muslim personal relations in India are governed by laws formulated or sanctioned or ratified by the Parliament after the commencement of the Constitution of India. Recently the Union Parliament has enacted a law concerning the abolition of an unethical and unconstitutional practice chiefly known and practiced by Muslim males of the Sunni School of Islamic jurisprudence. Even amongst Sunnis, the practice is more popular among the followers of Hanafi School. There are two forms of divorce in Sunnis. First, Talaq-e-Sunnat/Sunnah and Second, Talaq-e-Biddat/Biddah. The former one remains a valid form of Marriage whereas the latter one is an invalid one. Talaq-e-Biddat was a form of divorce that did not find any reference in the Holy Quran. It came into existence in the 9th century and subsequently appropriated by the jurists of Hanafi School. It was an innovation as the word Biddat in the name of the form itself means innovation. It means it was innovated by the people who started using it as a form of divorce. This had been in practice for around 1400 years.

Why it’s even against the Quran?

Why this practice is considered arbitrary, anti-quranic, unethical and unconstitutional? This is because this right of divorce was available only to Muslims husbands and not to Muslim wives. As well as it was been practiced in an arbitrary manner and without any logic and legal reasoning. It was arbitrary in a manner that the physical presence of the wife is not required and the husband could use any advance mode of communication to say the word “talaq” thrice in a single sitting. Even the Quran says- “Marriage is intended to be unbounded in time the relationship between the spouses should ideally be based on love and the important decisions concerning both spouses should be made by mutual consent.” Further, the Quran allows- “When the marriage relationship cannot be retained based on love, there must be an end to that relationship. However, hasty decisions are cautioned by the Quran and talks about mediation and reconciliation between spouses.”

The consequences of this inhumane act are so harsh that it led the Hon’ble Supreme Court of India to hold this form of divorce unconstitutional. The victims of this inhumane act were the Muslim women of different age groups, who were left to live the inhumane life without any self-respect and dignity. Once the husband utters the word ‘Talaq’ thrice and communicated to the wife the marriage come to an end at the very moment and the Talaq becomes irrevocable. The irony lies in the fact that even if the husband says those words in the fit of anger or in an intoxicated situation the divorce remains irrevocable. The only relief to the victim is that she would get the amount of Mehr if not already given. If both spouses want to come together the wife has to go through another humiliating and inhumane practice called Nikah Halala. However, this relief is nothing but a tip of the iceberg for a woman whose entire life has changed in just a moment.

This practice was typically in continuous exercise at the time of Prophet Mohd. but he fiercely denounced it. There was a notable instance when the first classic case came before the Prophet Mohd. While dealing gently with that case Mohd. lashed out at the offender and said- “Are you playing with the sacred book of Allah who is great and glorious while I am still among you all. “Even after that, some Muslims continue practicing this form of divorce. Later on, 2nd Caliph Hazrat Umar started punishing those who remained to practice such a form of divorce and violated the order of the Quran. It is believed that the punishment at that time was to strike the violator with the hunter 40 times whereas sometimes it is being told by the scholars that some fine used to be imposed upon the violators. Whatever may be the preferred mode of punishment, it is true for sure that there used to be some kind of punishment against the prevalent practice of triple talaq.

The Legal Battle

The legal battle is not too young. The matter first came in light in 1970ss when a 62-year-old Muslim lady named Shah Bano was given triple talaq by her lawyer husband. She was droved out of the house along with 5 children without any fault of her. She had nothing in her hand to do at that stage of her life. She fought the legal battle and finally, the Hon’ble Supreme Court of India decided in her favor. Her husband was told to pay the amount decided by the Hon’ble High Court of Madhya Pradesh and upheld by the Hon’ble Supreme Court of India in Mohd. Ahmed Khan v. Shah Bano Begum & Ors, AIR 1985 SC 945.

But the then Rajiv Gandhi led Congress Government brought a law namely the Muslim Women (Protection on Rights of Divorce) Act,1986 which overturned the judgment of Hon’ble Supreme Court of India in Shah Bano case and diluted the order in favor of the Muslim husbands. It was done under the pressure of All India Muslim Personal Law Board (AIMPLB) and Muslim fundamentalists. This decision of the government invited criticism from all over the country and many held the government’s act a blow to the principle of Secularism. Even the eminent jurist and pioneer of judicial activism in India, Krishna Iyer J. said that-“Will this law meet its waterloo at next polls with Hindu fundamentalists and Muslim fundamentalists, both inflamed by this indiscreet amendment, struggling for the victory of numbers? He further said-” Secularists will be a sore minority at the elections, and should the sleeping Hindu giant be provoked into a communal frenzy? He had the vision to see the irreparable loss to the secular nature of the Indian state which became true in the later years. However, in the later judgments including Daniel Latifi case and Shamima Farooqi v Shahid khan case, the Apex Court interpreted the Act of 1986, in a manner reassuring the validity of the judgment of Shah Bano case.

Later on, many new cases came before the apex court and were decided accordingly. In the absence of any law, there was no actual relief to the victims of triple talaq. The final battle was fought by Shayara Bano of Allahabad (now, Prayagraj). She was a victim of domestic violence and the instant triple talaq. She filed a Writ Petition before the Apex Court for declaring the instant triple talaq, nikah halala, and polygamy unconstitutional on the ground of violation of Article 14, Article 15 and Article 21. She submitted before the court that there is no protection against the arbitrary practice, undisputed power to husband and no action either from the Executive or Legislature. The case was finally decided by a multifaith five-judge bench. The 3:2 majority judgment decided the matter once and for all on August 22, 2017, and held the age-old practice of triple talaq unconstitutional and ordered the government of the day to make a law in a stipulated time frame. An argument reached the court that any involvement of government in the personal matters of the community is against the secularism and also a violative of Article 25. But this argument did not stand in the court as the court said that fundamental rights are not absolute rights. There are limitations to their use. Likewise, Fundamental Right under Article 25 is subject to the provisions of part III of the Constitution.

The Making of History and The New Law

The Central Government decided to make a law in consonance with the historic judgment of the Hon’ble Supreme Court. Several times it was brought in the Parliament but it failed to get all the political parties on the same page because of some disputed provisions in the draft Bill. When the government failed to get the bill passed from the parliament it brought the ordinance and made the instant triple talaq an offense punishable with three years of imprisonment and fine. Finally, the government succeeded to get the bill passed from both the houses of the Parliament and the assent of the President. The Muslim Women (Protection of Rights on Marriage) Act,2019, (herein called the Act) replaced The Muslim Women (Protection on Rights of Divorce) Act,1986.

While presenting the Bill in the Parliament Union law minister R.S. Prasad said-“This legislation will help in ensuring the longer constitutional goals of gender justice and gender equality of married Muslim women and help sub serve their fundamental right of non-discrimination and empowerment.”

However, many issues have been raised and contested by many scholars since the enactment of the Act. Among all, some of them need to be addressed here. Here are the following:

– Induction of criminal element in a civil matter.

Many scholars have been raising this issue on the argument that criminal law’s interference in a civil issue that to in a really sensitive relation will be a disastrous one not only for the relationship but also for the wife as well. Such a harsh attitude of the government must be replaced with a sensitive one. One thing that these scholars failed to address is that this is not the only provision that includes criminality while dealing with matrimonial issues. Apart from this, the fact of the matter is that the Talaq-e-Biddat is considered as Haram(sin), which includes in itself the criminality, in Islamic jurisprudence. It was also the stand of the AIMPLB during the proceedings before the Hon’ble Supreme Court that Talaq-e-Biddat is innovation and Haram according to the Deen. Let us understand this through an illustration. Murder is Haram according to Islamic jurisprudence and Deen and hence punishable. In the same way when the Talaq-e-Biddat is considered as Haram why it should not be made punishable.

– Punitive rather than protective.

It is also said by the scholars that the focus of the law is more on punitive actions rather than a protective one. But this argument is erroneous because it does not look into the actual intention of the parliament. The Act provides clear provisions regarding the relief to the wife by providing monetary relief u/s 5 of the Act in case she has been given triple talaq. Even the entire Chapter III of the Act provides several provisions in favor of the wife. The Act also makes the offense compoundable on the instance of the wife u/s 7(b). The only purpose of making it punishable is to create a deterrence so that this unethical and anti-women act can be stopped. Amazingly after the Act came into force the cases of triple talaq have drastically reduced.

– Unequal treatment to Muslim men and creating fear among them.

The Act provides provisions in favor of the wife but it does not mean that the law gives unlimited powers to wife and arbitrary powers to Police and other law enforcement authorities. There are clear limitations to the powers of Police. The argument is raised several times that the Muslim men are subjected to unequal treatment but this is further amazing that when it comes to taking privileges as Muslim men under the same practice then why to escape when the responsibility comes on them. It does not create unnecessary fear among Muslim men as alleged by the scholars but it does create fear among those who even think of doing so. Sometimes hilarious arguments are given that why only Muslim men are subjected to criminal punishment. The answer to this argument is that there is no Triple Talaq as such in any other personal law. It is found only in Muslim personal law and hence it has been made punishable here only. There is nothing illegal in making the act of triple talaq a punishable offense.

– No possibility of reconciliation.

This is also an issue that has been raised by scholars that the law does not provide so much space for reconciliation but that is not true. The law provides a provision u/s 7(b) for the compounding of the offense under the Act. The offense shall be compoundable under the section which provides an option only to the married Muslim woman upon whom the talaq is pronounced. The magistrate has been given the authority to look into the matter. Therefore, the law very well provides the provision. It is up to the families and the particular case that will decide whether there will be a conciliation or not. That will depend totally upon a particular case.

Conclusion

The practice of triple talaq is a very serious problem especially for the married Muslim women who have been the victim of this cruel and anti-women practice. As the court termed it as unconstitutional and arbitrary, it is a bane not only for Muslim women but also for the entire Muslim community. Even when the Quran does not allow it, the continues practice of this arbitrary practice in contempt of the Quran which is the base of Islamic jurisprudence and Muslim personal law. It is also against the pious constitutional principles of Equality and Personal dignity. The unfortunate thing is that it has been in practice for centuries without any objection from neither side. The Constitution of India provides equal rights to all its citizens. It does not make any distinction between man and woman, Hindu and Muslim as far as it does not violate any other provisions of the Constitution. No one can undo the injustice that has been done to the Muslim women but everyone has to make it sure now that there should not be any Shah Bano in the future. The Parliament has done its job very well as parens patriae by making a much-needed law. Now the enforcement agencies must enforce it in letter and spirit of the Act. The biggest task is for the Muslim community itself to look into the infirmities in their personal law which should align with the lex loci. The community itself has to make sure that this anti-Islamic and anti-women practice vanishes as soon as possible. They should also look into some other infirmities like Nikah Halala, polygamy, etc. Both the government and the community should work together in the direction of upliftment of the community and particularly the women. The government should also take some positive and necessary steps in the direction to bring Uniform Civil Code, which is a directive principle under Article 44 and which has been constantly reiterated by the Hon’ble courts of the country from time to time. I want to end with what Krishna Iyer J. said-“Society is guilty if anyone suffers unjustly”

Author Details: ANKIT MISHRA (LAW CENTRE –II, UNIVERSITY OF DELHI)

The views are personal only, if any.

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