TRIPLE TALAQ AND THE JUDICIARY
TRIPLE TALAQ AND THE JUDICIARY
- Ritika Sarda
India is a secular country and is perhaps the only country in the world which houses the followers of a lot of religions. Due to the existence of various religions, every religion has its own set of personal laws which governs their personal rights such as marriage, succession, guardianship and adoption.This helps maintain peace and harmony and upholds the fundamental rights of the citizens to practice and propagate their religion enshrined under Article 25 and 26 of the Constitution.
But with changing time,some of these religious practices were considered to be in violation of the fundamental rights especially Article 14,15 and 21 as they were arbitrary and discriminated on the ground of sex, caste etc. The Supreme Court in such cases applied the essential religious practice test and if that religious practice failed to prove that it is an essential part of the religious practice it was declared unconstitutional. Some examples of such practices are sati, dowry, the Sabarimala case etc. One such example is the Triple Talaq practice which was declared as unconstitutional by the court in the Shayara Bano case.
Under the Muslim law the marriage can be dissolved in four ways either by the husband or by the wife or with mutual consent or by judicial process. When the husband initiates the divorce it can be either done by Talaq-E Sunnat which comprises of Talaq-E-Ahsan and Talaq-e-Hasan or by Talaq-E Biddat (triple talaq).
Triple talaq is considered to be an irrevocable and instant form of divorce which was introduced by Umayyads and was subsequently appropriated by the jurists of the Hanafi School. [1] It is merely an innovation and is considered to be an impulsive and hasty form of talaq.According to this practice if the husband uttered the word “Talaq” three times in a row either by way of a letter, text or verbally then the marriage stood dissolved.Thus is considered to be a unilateral form of divorce.
Since it was an irrevocable form of divorce and no iddat period was required to be maintained therefore in order to marry the husband again the only way was for wife to marry someone else, consummate in the marriage, get a divorce, maintain iddat period and then remarry the former husband. This process is called the ‘nikah halala’.
This practice not only violates Article 14, 15 and 21 but has inherent absurdities because even if the man pronounces talaq under fury, undue influence, coercion or effect of alcohol the marriage stands dissolved. This practice also affects the lives of women and children especially the ones belonging to the weaker section of the society. Therefore, several Islamic countries like Bangladesh, Iraq, Pakistan, Algeria, Turkey, Saudi Arabia etc. don’t follow this practice as it is not considered an integral part of Islam and is neither in consonance with the human right principles nor gender equality.
But in order to uproot this practice Indian judiciary played a very vital role. Earlier in case of Sara Baiv. Rabia Bai [2] the court held that even if the wife is not present when the words were spoken or even if she did not receive the writing, the divorce was valid.
Later in the case of Ahmad Giri v. Mst. Megha[3] the court went to the extent to say that since triple talaq was the most common and prevalent form of divorce therefore no change could have been brought about in the practice by way of the judicial interpretation.
It was finally in the case of Ziauddin v. Anwary Begum [4] where Justice Baharul Islam of the Guwahati High Court held that the previous judgments given by several privy councils and high courts were not correct as they were not in consonance with Islamic Shariah. He also stated that there had been a lot of misconception about Talaq under Muslim law and helped removed the ambiguity existing because of the previous judgements.
Slowly and gradually the courts recognized triple talaq an arbitrary practice which violated the fundamental rights and the Supreme Court for the first time in the case of Shamim Ara v. State of U.P [5] invalidated triple talaq. Later in Rukia Khatun v. Abdul Khalique Laskar [6] it was identified that none of the holy books or scriptures mention about Talaq-e-Biddat and held that any talaq-nama without any efforts of reconciliation cannot comprise as a talaq. The correct law of talaq as proposed by the holy book of Quran required a reasonable cause for talaq and that it should always be preceded by an attempt of reconciliation between the husband and the wife.
It was in the case of Dagdu Pathan v. Rahimbi Pathan[7] that the High court of Bombay imposed a restriction on the practice of triple talaq and stated that this should not be used unjustifiably or as weapon to harm or avenge the wife as this would constitute a ‘haram’ under the Islamic law. Finally, the Supreme Court in the case of Shayara Bano v. Union of India &Others [8]declared the age long practice to be unconstitutional. It stated that Triple Talaq did not form an essential religious practice as it was an innovation and hence it did not fall within the confines of Article 25.It was also considered to have given arbitrary and unreasonable power to men, which violated the fundamental rights of women.
The practice of triple talaq was considered to be bad in law as it was against the Sharia principle which was declared to be the only law governing Muslims under the Muslim Personal Law (Shariat) Application Act, 1937 as according to the Sharia principle both parties should have equal right to revoke and that arbitration and mediation are a prerequisite for a valid divorce which was not prevalent in triple talaq. [9]
Later after the judgment was passed the Parliament passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019 which criminalized the practice of triple talaq or talaq-e-biddat. According to the act any man who committed the compoundable offence of triple talaq should be imprisoned for a term of 3 years and his wife and children will be entitled to some allowance. This can be called a disproportionate punishment as this is a criminal punishment for a civil offence.Also if the husband will be imprisoned his obligation to pay maintenance will remain impossible to fulfil. Thus the legislation must amend these flaws before it is misused like Section 498A of IPC.
Thus declaring triple talaq as unconstitutional has brought India closer to the application of the Uniform Civil Code which is a legislation aimed at treating all sections of a particular society equally, irrespective of their religions.[10]This principle enshrined under Article 44 of Part IV of the Indian Constitution, 1950 but it is difficult to implement the said Code in India as the drafting of this Code itself is a huge task, considering the vast amount of religions people follow in this country and would also require the Indian society to be more receptive and broadminded to realize the spirit of this code.
REFERENCES :-
1. Dr.Moin Qazi, ‘Tracing the history of Triple Talaq to look to the future’ (Qrius, 8 January 2010) <https://qrius.com/history-triple-talaq-future/> accessed 14 April 2020.
2. ILR (1905)30 Bombay 537
3. AIR 1955 J&K
4. 1978 (Unreported) Criminal No. 1999.Saleem Akhtar: Shah Bono Judgement in Islamic Perspective, P. 114, 1st ed. (1994), Kitab Bhawan New Delhi
5. A.I.R. 2002 SC 3551
6. [1981 (1) CLR 375
7. (2002), DMC 315 Bom. FB
8. (2017) 9 SCC 1
9. Avantika Tiwari, ‘Triple Talaq- Counter Perspective with Specific Reference to Shayara Bano’ (2017) Vol. I ILI Law Review < http://ili.ac.in/pdf/paper517.pdf > accessed 15 April 2020.
10. C.K. Matthew, ‘Uniform Civil Code: The Importance of an Inclusive and Voluntary Approach’, (The Hindu Centre For Politics and Public Policy, 26 October 2019, < https://www.thehinducentre.com/publications/issue-brief/article29796731.ece > accessed 15 April 2020.
