Criminalisation of Instant Triple Talaq
Criminalisation of Instant Triple Talaq
- Deekhsha Sharma, University of Jammu
Talaq as a word means dissolution of marriage. Talaq Talaq Talaq or Instant Triple Talaq or Talaq-e-Biddat is a practice under which a Muslim man can divorce his wife by simply uttering ‘talaq’ three times. It is an age old practice followed by the Hanafi school of Islam. On 22 August, 2017 the Supreme Court saw this practice not as an essential religious practice and against Constitutional morality and hence struck down the 1400 years old practice and an appropriate law i.e. Muslim Women(Protection of Rights on Marriage)Act,2019 was passed.
Talaq as terms of Muslim Personal Law has two main kinds i.e. Talaq-e-Sunnat andTalaq-e-Biddat. Talaq-e-Sunnat, which is revocable, means what is being carried oni.e., it was practiced from the longest time. Talaq-e-Sunnat comprises of two types: Talaq-e-Ahsan(most acceptable form) and Talaq-e-Hasan(comparatively less acceptable form) as both forms have a period of three months or 90 days in between them and talaq becomes irrevocable only after the period of iddati.e., the period of three lunar cycles or three months. On the other hand, Talaq-e-Biddat, which is irrevocable, means innovative and was added to the Muslim law later on and, therefore, there is a question mark(?) on this. Talaq-e-Biddat is regarded as the disapproved form of Talaq and this form is in contrast to the ideology of the Prophet. In this form, husband could break the relation merely by pronouncing talaq three times at one go. Also, it is unilateral divorce and is against gender jurisprudence. Sharia law does not recognize Talaq-e-Biddat. The practice is followed only by the Sunni community of Hanafi School and Hanafi Sunnis, which comprise of around 90% of Muslim population of India. The correct form of Talaq i.e. the Sunnat form says that the Talaq must be for a reasonable cause and that it must be preceded by an attempt of reconciliation between the husband and wife by two arbiters (one from each side). According to the findings of a Bhartiya Muslim Mahila Andolan (BMMA) study, more than 90% of 4,710 women interviewed wanted a ban on unilateral divorce.
There are 55 Muslim Majority countries. Out of them 22 are Muslim countries in the world including Pakistan and Bangladesh. Their provinces have abolished Triple Talaq either explicitly or implicitly. The practice of Instant Triple Talaq in India was challenged in Shayara Bano V. U.O.I 2016-2017, in which Shayara Bano who was married to Rizwan Ahmed for 15 years was given Instant triple Talaq (Talaq-e-Biddat) in 2016. A writ petition was filed in the Supreme Court by Shayara Bano asking three practices Talaq-e-Biddat(a practice which gives a man the right to divorce his wife by uttering ‘talaq’ three times in one sitting without his wife’s consent), Nikah-Halala(is a practice where a divorced women, in case they want to go back to their first husband ,have to consummate second marriage) and Polygamy(practice which gives man right to marry more than one wife) as unconstitutional as they violate Articles 14,15,21,25 of the Constitution. The Court enrolled Union of India , Ministry of Law and Justice , Ministry of Women and Child Development , Ministry of Minority Affairs , National Commission for Women , All India Muslim Personal Law Board (AIMPLB) as Respondent in addition to Rizwan Ahmed, in the case. Triple Talaq in India is recognized and enforced under Muslim Personal Law (Shariat) Application Act,1937 . The AIMPLB has argued that uncodified Muslim Personal Law is not subject to judicial review and that these are essential practices of the Islamic religion and protected under Art.25 of the Constitution. The Union of India and the Women rights organizations like Beebak Collectiveand BMMA supported Shayara Bano and said Talaq-e-Biddat is unconstitutional. The Apex Court formed a five judge constitutional bench on 30th March 2017. The first hearing was on 11th May 2017. On 22nd August,2017, the five judge bench pronounced its decision in the Triple Talaq case, by a 3:2majority. In Talaq-e-Biddat Muslim man divorcing his wife by pronouncing more than one Talaq in a single Tuhr violates Articles 14,15,21,25 and is against Constitutional Morality as no other women of another religion is facing the problem of Triple Talaq ,therefore, it is promoting inequality and hence violating Article 14 of the Constitution. The Court said that instant triple talaq is arbitrary and hence violates the rights of Muslim women. Justice Kurian Joseph said that merely because a practice has been around for 1400 years does not make it eligible for Constitutional protection under Art.25. “What is banned in Quran cannot be good in Shariat. What is banned in theology cannot be good in law”, i.e. Triple talaq is not recognized by Quran, the holy scripture of Muslims and hence it couldn’t be protected under article 25 of the Constitution. The Court found by majority that triple talaq is not an essential tenet of the religious belief of the Muslims and the Constitution of India protects only essential religious practices. There were several cases in the past: Shamim Ara V. State of U.P. ,Mohd. Ahmed Khan V. Shah Bano Begum ,Danial Latifi V. Union of India .But Chief Justice of India Justice J S khehar and Justice Abdul Nazeer said that Triple Talaq constitutes a religious practice under Islam and hence enjoys Constitutional protection. It is beyond the judicial domain and it is for the Parliament to come up with a law to deal with Triple Talaq. The Supreme Court injuncted the Triple Talaq practice for 6 months and advised Parliament to make Law for this as 90% of Muslims were practicing it. The parliament tried to make law in December 2018 but it lapsed in Rajya Sabha as it did not clear it before the Dissolution of the 16th Lok Sabha. So, Triple Talaq was passed as an ordinance which was then replaced by the Muslim Women (Protection of Rights on Marriage)Act,2019. It replaced the 1986 Muslim Women(Protection of Rights on Divorce),Act, enacted after the Shah Bano case.
Major provisions of the act
•It invalidates the practice of instant triple talaq(talaq-e-biddat)as void and illegal.
•It makes instant triple talaq a criminal offence with imprisonment upto three years and fine.It also makes the offence cognizable, if information relating to the commission of an offence is given to the Police, by the married woman upon whom talaq is pronounced or by any person related to her by blood or marriage (A Cognizable offence is one for which a police officer may arrest an accused person without warrant).
•The Act also provides scope for Reconciliation without undergoing the process of Nikah-Halala if the two sides agree to stop the legal proceedings and settle the dispute.
•It also entitled to seek subsistence allowance to the woman against whom the talaq is declared and custody of the minor children.
Conclusion :-
The passage of the Muslim Women(Protection of Rights on Marriage)Act,2019 criminalizing triple talaq is a moment of great importance for gender equality and justice and for India’s legislative history.
REFERENCES :-
1.‘Triple Talaq’ (manifest pedalogy 3 January 2019) <https://www.manifestias.com/2019/01/03/triple-talaq/> accessed on 29 July 2020
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5.Ajaz Ashraf, ‘If Pakistan and 21 other countries have abolished triple talaq, why can’t India’ (Scroll.in, 18 April 2016) <https://scroll.in/article/806299/if-pakistan-and-21-other-counties-have-abolished-triple-talaq-why-shouldnt-india> accessed on 26 July 2020
6.Shayara Bano V. Union of India (2017)9 SCC 1 Writ Petition (C) No. 118 of 2016
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15.Krishanadas Rajagopal, ‘Supreme Court sets aside Instant Talaq’ The Hindu (India, 23 August 2017) 1
16.Shamim Ara V. State of U.P. AIR 2002 SC 3551
17.Mohd. Ahmed Khan V. Shah Bano Begum 1985 AIR 945, 1985 SCR(3) 844
18.Danial Latifi V. Union of India, AIR 2001 SC 3958
19.Muslim Women Protection of rights on marriage Act 2019 <http://egazette.nic.in/WriteReadData/2019/209473.pdf> accessed on 27 July 2020
