CONSTITUTIONAL VALIDITY OF TRIPLE TALAQ

This article was written by Ananya Patil  a student of Sharda University.

‘Talaq’ is the Arabic word for the phrase ‘I divorce you’. Under Muslim personal law, a Muslim husband may repudiate his marriage by pronouncing ‘Talaq’ three times, continuously, in the presence of two other witnesses. Though this form of divorcing one’s wife, also known as Talaq-ul-Biddat, is the least preferred method of divorce among Muslims, it is a valid and rampantly used one.

But just like the ongoing debate about the Muslim personal law’s concept of having four wives, the constitutional validity of Triple Talaq has also been challenged on many an occasion. The injustice caused by this practice to unsuspecting women was most recently brought to the spotlight in the case of A.S. Parveen Akhtar v. Union of India.

In this case, Ms. Parveen’s husband demanded additional dowry in the form of a scooter. On Ms. Parveen’s family’s inability to oblige towards the demand, she was thrown out of the house by her husband. After living in a local ladies’ hostel for a few days, Ms. Parveen was intimidated by her father that her husband had divorced her by way of Triple Talaq.

The arguments made on behalf of the petitioner in this case was that this practice violated human rights and the principles of natural justice. Furthermore, it was argued that the practice was unconstitutional as it went against:

(i) Article 14: Equality before law – The state shall not deny to any person equality before the law or the equal protection of laws within the territory of India.

(ii) Article 15: Discrimination on grounds of religion, race, caste, sex or place of birth – The state shall not discriminate against any citizen on grounds only of religion, race, sex, place of birth ir any of them.

(iii) Article 21: Protection of Life and Personal Liberty – No person shall be deprived of his life or personal liberty except according to the procedure established by law.

The Quran, the holy book of Muslims, does not recognize Talaq-ul-Biddat and considers it to be a spiritual offence. It directs that both parties in a marriage must make all attempts at reconciliation before declaring a divorce as irrevocable. Thus, legalizing the practice of triple talaq only surmounts to an impediment in the right of a Muslim woman to practice and profess her religion, by unleashing a spiritual offence upon her and violating Article 25 of the Constitution which states that _.

Another pre-requisite to any divorce is that it must not be whimsical and must be preceded by several attempts to reconcile. It must be the last resort in a failing marital relationship, which Talaq-ul-Biddat does not allow. Also, it can only be used by the husband and the wife has no say in the process. This makes this practice a gross atrocity towards Muslim women and their fundamental rights.

It is undeniable that in this scenario, a Muslim woman is helpless against the decades of unfair practices. Not only can the wife be divorced by her husband for any reason, upon his whims and fancies, but she is also denied Mehr (a form of compensation provided by the husband to a divorced woman to aid her independence after marriage). It, thus, falls upon the courts to act as torchbearers of justice and curb this unjust practice at the earliest.

There is also the fact that most Muslim women are betrothed when they are young (many even before the age of seven years). If a Muslim man decides to divorce his wife when she is young or simply a minor, it leaves the girl vulnerable, especially without the Mehr amount. Also, remarrying a divorced woman is still a taboo concept in Muslim personal law and hence, many a times, a divorced woman has to spend the rest of her life on her own and often bear hefty expenses towards the upbringing of her children. Remarriage of a divorced woman is not easy even if both parties are willing, as in most cases, all expenses of the marriage have to be borne by the bride and the divorced woman’s parents seldom shell out that kind of expenses.

The system of triple talaq, ultimately, puts unfair power in the hands of Muslim men. When a man is allowed to marry and divorce as many women as he wishes (and can even be married to four women at any point of time), with no authority having the right to question him about his actions, women tend to become an expendable commodity for him. And in this day and age, when every social and political forum is striving to achieve gender equality, it leaves the Muslim women unarmed and vulnerable.

India is a secular country and probably has the most number of religious sects living within it. By the nature of laws in India, personal laws are highly regarded and given supreme importance. But if any such personal laws extend beyond its scope and advocates, in effect, the violation of basic human rights, it can be struck down by the apex court. The abolition of the ritual of ‘Sati’ and the more recent Haji Ali Dargah judgement are two such examples. In fact, the middle east countries do not have any existing provision regarding triple talaq. It goes by no extraordinary stretch of imagination that India too would do well to follow suit.

Even if the Supreme Court is apprehensive about striking down the part of the Muslim personal laws that permit triple talaq and declare it unconstitutional, it can add a provision to the existing law such that there is a period of waiting (at least one menstrual period) between each consecutive talaq declaration. This will help provide both the parties in a marriage, sufficient time to make efforts towards reconciliation and will also ward off accidental divorces that cannot otherwise be undone. Additionally, if the provision is amended to ensure that Muslim men provide a valid reason for opting for triple talaq and provide the Mehr amount to the wife, then we can have some semblance of a divorce law that does not violate fundamental rights and is gender neutral.