October 19, 2021

Triple Talaq

Family law

 Introduction

Triple Talaq which is also known as talaq-e-biddat is a classification of divorce in Muslims which was declared unconstitutional and arbitrary by the Supreme Court of India in Shah Bano vs. Union of India on 22 August 2017. In Muslims the right to give divorce is given only to the husband and he can divorce his wife at any time without stating the reason for it which makes it arbitrary. But the question is whether the Quran provides the same meaning of Talaq as the way it is practiced by the Muslims, the answer is NO. The concept of ‘Three Divorces’ does not exist in the Quran. No verse of Quran provides Triple Talaq. The Quran does not provide Talaq in a single pronouncement rather it avoids hasty divorces and prescribes two waiting periods for three months before the divorce is final in order to give the husband time to reconsider his decision. The Quran provides equal rights to the wife in matter of Talaq, she has the right to ask her husband for divorce which is known as Khula. Khula is a procedure in Islam, where the wife can ask for divorce by returning the Maher (dower) which she received at the time of her Marriage.     

The census of 2011 clearly shows that majority of the sufferers of this act are women so while seeing the bigger picture one can clearly get the view that women getting divorce on the grounds of dowry, over expectation from the groom’s relatives and cruelty in return tend to be the major reason of divorce.

Divorce under Islamic Law

Divorce, since it destroys the whole family, is of course considered as a social evil in itself. The dissolution of marriage is almost always an upsetting event as it is marked as disappointment and the loss of dreams and expectations. According to Islamic concept, wedding bond is a kind of social contract and it can be terminated only when it ceases to serve its purpose. Marital tie is always respected as well as it should be continued as far as possible. Divorce is considered as the last resort when mutual adjustments and tolerance are emphasized beyond proportions.

When the dissolution of marriage tie is pronounced by the Husband, it is known as ‘Talaq’ and when it takes place by Wife it is known as ‘Khula’ and when it is by mutual consent then it is known as “Mubrat”. Under such circumstances the Wife can move to the Qadi or court in order to get released herself from the marital tie.

Types of Divorce under Islamic Law

Express Divorce

When the husband uses ‘clear and unequivocal’ words such as ‘I have divorced thee’, the Divorce is express. The express Talaq falls into two categories:

  • TalaqeSunnah (approved divorce) and,
  • Talaqulbiddah(unapproveddivorce)

  •  The basic distinction among the two is that, in the former case the pronouncement for divorce is revocable, that is why it is called approved divorce, while in the latter case, it is irrevocable.

Talaqe- Sunnah” is of two types-

  • Talaq-e-ahsan and
  • Talaq-e-hasan

The former is the most approved and the latter is just approved

Talaqulbiddah” also has two forms

  • Triple divorce or three pronouncements at one time and,
  • One irrevocable pronouncement.

Implied and Contingent Talaq

Sometimesthewordsusedinthepronouncementof Talaq are not clear such as when husband says to his wife, “I give up all relations with you and shall have no connection of any sort with you” or “I have released thee from being my wife”. In these cases the divorce will be implied intention to divorce is clearly expressed.

When Talaq is pronounced as to be effective on the happening of a future event, the divorce becomes effective on the happening of the event. This is known as Contingent divorce. But repudiation cannot be qualified with an option.

Hamad Ali vs. Imtiazan – is a good illustration of both implied and contingent divorce. In this case, when wife insisted on going to her Father’s house, husband said to her “Thou are my cousin” my paternal uncle’s daughter, if Thou goes’”. But the wife left for her father’s house. The words used by the husband constitute implied divorce while wife’s going to her father’s house constitute the contingent event. It was held that this amounted to talaq.

The Shias do not recognize implied and contingent divorce.

Constructive Divorce – Ila and Zihar

The constructive divorce has almost become obsolete in India. In ILA husbands swear that he will have nothing to do with his wife and abstains from her society for a period of four months. On the expiry of four months, marriage stands dissolved. In Zihar, upon the husband expressing his dissatisfaction with his wife by comparing her with the back of her mother or any other women within the degrees of prohibited relationship, the wife acquires the right to refuse cohabitation with him till he performs a penance, and if the husband refuses to perform penance, she has right of judicial divorce.

Capacity to Pronounce Divorce

All schools of Muslims agree that Talaq can be pronounced only by a person of sound mind and who has attained puberty. A minor or a person of unsound mind has no capacity to pronounce Talaq.

The most curious aspect the Hanafi law of Talaq is that divorce pronounced under compulsion, to please one’s father or some other person or in jest is valid. The Shia law does not recognize a divorce pronounced under compulsion or undue influence or obtained by fraud. The Maliki’s and the Shafi’s also do not recognize a Talaq pronounced under compulsion or threat.

All schools of Muslims agree that a Talaq pronounced by the one, who happens to be delirious, or in a faint or in sleep, or unconscious or lost in astonishment is invalid. But a dumb person may pronounce divorce by signs, but if he is illiterate, he should do so in writing.

Formalities of Talaq

No schools of Sunnis prescribe any formalities for Talaq. But the Shias insist that divorce must be pronounced orally and in the presence of two witnesses, and the specific formula of divorce must be pronounced. They also insist that Talaq should be oral, unless the husband is physically incompetent to pronounce it orally. Among the Hanafi’s Talaq may be oral or in writing, and any word may be used, though intention to pronounce divorce should be clearly expressed. Even husband pronounces Talaq during wife’s proceedings for maintenance or restitution of conjugal rights it will result in dissolution of marriage. This is how the husband always succeeded in frustrating wife’s claim of maintenance. Section 125 of Cr.P.C now includes “a divorced wife” within the meaning of the term “wife”. But there has now been superseded by the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Neither the notice of the Talaq nor the presence of wife is required, or is it necessary, that it should be addressed to the wife, but the wife must be named.

Although, the presence of wife at the time of Talaq is not necessary, for certain purpose, communication of Talaq is necessary.

Personal Laws and the Constitution of India

Article 13 of the Indian Constitution provides that “Laws inconsistent with r in derogation of the Fundamental Rights. All laws in force in the territory of India immediately before the commencement of this constitution, in so far as they are inconsistent with the provision of this part shall, to the extent of such inconsistency be void.

This is worried to all the laws in India with the exception of “Personal Laws”. In  case the individual laws were in like manner made sure about by Articles 13 and 372of the Constitution, the would be void to the extent that they are inconsistent with “Articles 14, 15, and 21 of the Constitution”, anyway this is not the circumstances. Any individual law which is tried, whenever found one – sided against women should have been struck around the courts. Women have not been standard guards.

The Supreme Court has taken particular viewpoints while overseeing individual laws. In different cases it was held that “Singular laws of social occasions are not weak to the III part of the Constitution overseeing key rights, especially those guaranteed under Articles 14, 15 and 21 of the Constitution of India”. Then once more, in different various cases the Supreme Court has given individual laws a shot the touchstone of principal rights and scrutinized down these laws or made an interpretation of them so as to make them unsurprising with the central rights. There is in any case, no consistency of decisions in the matter of whether the individual laws can be tried on the touchstone of focal rights for example whether or not they are “Laws” or “Laws in drive” under “Article 13 of the Constitution of India”.

On account of “N. Adithyan v. Travancore Devaswom Board and Ors” The Supreme Court was stressed over the issue whether in respect of certain haven in Kerala nobody but Brahmins could be designated as ministers. Longstanding use and exceptionally was referred to help of this case. The Court negatives the solicitation and viewed.

“Any custom or usage irrespective of even any proof of their existence in pre constitutional days cannot be countenanced as a source of Law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and Law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by the Courts.

Shayara Bano vs. Association of India and Ors

Thiscasehas acquired eagerness everybody’s psyche as it has tested the idea of ‘quick triple Talaq’ and not the idea of ‘triple Talaq’. The PIL was recorded by Ms. Shayara Bano. This request has been significantly upheld and accepted to have allowed to the individuals who have endured. The PIL was started by Ms. Shayara Bano, an inhabitant of Uttarakhand, who was continually mishandled by her better half and in the long run separated by method for Triple Talaq at one go. Her trouble was heard by the Supreme Court of India. India is a common nation and its residents have the right to the upbeat, content and ought to consistently reserve the privilege to correspondence and equity. The Hon’ble Supreme Court has decided to permit the rights World Wide Journal of Multi- disciplinary Research and Development of the individuals who really merit it, is excellent and positive advance towards the bad form that ladies are exposed to. The seat of the Supreme Court has proclaimed the judgement that the triple talaq has been had illegal and violate of different articles of the Indian Constitution.

“Triple Talaq via WhatsApp”

The couple had been married for about 20 years, and the woman’s husband had left for Sharjah, Dubai in January but did not come back. The couple in their 40s did not have any children and adopted a girl child. The husband from Dubai sent a message “triple talaq” over “WhatsApp” and then called her to utter the same. The woman said “I don’t have any financial support and have a daughter to take care of”. The woman did not accept the divorce and sought Justice by lodging a complaint.

“Triple Talaq over phone call”

The 32 years old Ishrat Jahan married in 2002 in Bihar, moved with her husband to Kolkata in 2004. Her husband went to Dubai and from there called her and said “triple Talaq’ in 2015. She said “I don’t know what is in store for me. My husband has refused to pay me maintenance. I’m trying to ensure two meals for my children and their education”. She shot into the limelight when she lodged a case with Supreme Court. She said “my parents supported me financially for a while. After a while they found it difficult too. My sister continued to help with whatever she could”.

Status of Triple Talaq in Other Nations

Pakistan: Triple Talaq in Pakistan was abolished after recommendations by a “seven- member commission on marriage and family laws” in 1956. “Muslim Family Laws Ordinance” was passed in “1961”

Morocco: “the Moroccans Family Code”, which was passed in “2004”, gives same rights to husband and wife in matters of marriage.

Egypt: Egyptisthefirstcountry to bring alterations in to its system of divorce. According to Ibn Tahymiyyah, saying Talaq three times in one go accounts for only one step in the process. This is followed by a 90 day waiting period.

Tunisia: according to “the Tunisia Code of Personal Status, 1956” “a man cannot divorce his wife verbally without consulting a judge”.

Iraq: according to Iraq’s Personal Status Law, three verbal repudiations at once will count as only one divorce.

Triple Talaq Bill, 2017

In a majority of 3:2 Judgements, the Supreme Court set aside instant Talaq as a “manifestly arbitrary” practice. The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced in the Lok Sabha by the central government on “28th December 2017” and was passed on the very same day. The Bill, which makes instant triple Talaq or talaq-e- biddat a punishable offence, followed by the Supreme Court judgement. On August 22, 2017 in the case of Shayara Bano vs. Union of India. In a majority 3:2cjudgement, the apex court set aside instant Talaq as a “manifestly arbitrary’ practice. It also said “given the fact that the “triple Talaq” is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and the wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place”.

What does the Bill say?

It Makes the Pronouncement of “triple Talaq” “void and illegal’. According to clause 3 of the Bill, “any pronouncement of Talaq by a person upon his wife, by his words, either spoken or written or in electronic form or in any other form or in any other manner whatsoever, shall be void and illegal.

Muslim Women protested against the Bill in Up’s Sambhal

On 29th March 2018, hundreds of women took out the rally against the Triple Talaq Bill which was proposed by the Central Government in the year 2017. Muslim women holed placards and banners, in their traditional burqa and hijab (veil) gathered on the streets of Uttar Pradesh’s Sambhal and voiced against the imposition of a new law on Triple Talaq. The protestors at that time felt that the Government is interfering in their religious affairs and demanded to recall the Triple Talaq Bill. At that time the Muslim Women (Protection of Rights on Marriage) Bill, 2017was passed by the Lok Sabha and was pending in the Rajya Sabha which was later on rejected by the Rajya Sabha. And the protest was taken place at different parts of the nation against the Triple Talaq Bill.

Muslim women across the country took out a massive rally against the Triple Talaq Bill on 5th April, 2018 at Ram Leela Maidan. Protesting against the Triple Talaq Bill, women took out to streets in huge number and said that “the Bill is an attack on the Muslim community”. “The Bill is against the wishes of the Muslim community; it is anti-children and will have adverse effects on the Muslim Community. Muslim women tried everything to stop the triple Talaq bill.

Conclusion

Rights should be analyzed in the light of Fundamental and Constitution Rights which are granted under the Constitution of India. No act should violate the Constitutional framework of the India. Rights if granted then it should not discriminate whether male or female. “The Muslim Women (Protection of right on Marriage) Bill 2019 should have some changes, amendments in it which is fair to both men and women. Under this Bill the room for reconciliation between husband and wife should be there so that the decision which they have been onto does not let them regret what they had in their Marriage. Imprisonment of husband because of giving divorce to his wife does not sought things rather it complicates more and more as whatever space which would have been there for them to reconcile in their marriage would be gone. Due to which not only the husband will suffer but also the wife has to face many problems in her married life and also it will strain the relation between the wife and her in-laws. And also the most important point which one should not forget about is the children out of wedlock.  As provided under Article 14 of the Constitution of India there should be no inequality on the basis of caste, gender, color etc.

So with this I would like to conclude by saying that feminism is not just about empowerment of women and lowering the status of male in society but rather it is about treating both male and female as equals, it is about giving them same respect which a man or women gets in the society today.

Author- Hani

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