Triple talaq in India

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This article was written by Astha Tiwari a student of Lucknow University.

Triple talaq is  also known as talaq-e-biddat,which means instant divorce and talaq-e-mughallazah which can be understood as  irrevocable divorce, is a form of Islamic divorce which has been used by Muslims in India. It allows any Muslim man to legally divorce his wife by saying the word talaq (an Arabic word for “divorce”) three times in oral, written, or in  electronic form. It is a 1,400 year-old practice among Sunni Muslims.

The practice of  triple talaq in India has been a subject of controversy and debate. Those who questioned the practice have raised issues of justice, gender equality, human rights and secularism. The debate has involved the Government of India and the Supreme Court of India, and is connected to the debate about a uniform civil code in India. On 22 August 2017, the Indian Supreme Court said  instant triple talaq (talaq-e-biddah) to be unconstitutional. Three of the five judges in the panel declared that the practice of triple talaq is unconstitutional. The remaining two declared the practice to be constitutional while at the same time , asking the government to ban the practice by enacting a law.

Triple talaq is a form of divorce that was practised in India, whereby , the man did not need to give any cause for the divorce and the wife need not have been present at the time of pronouncement. A divorced woman could not remarry her divorced husband unless she first married another man, a practice called nikah halala.

Many  Islamic countries, including Pakistan and Bangladesh, have banned it, although it is technically legal in Sunni Islamic jurisprudence. Triple talaq, in Islamic law, is based upon the belief that the husband has the right to reject or dismiss his wife with good grounds.If the wife wants to end her marriage and her husband does not agree to give a talaq, she has to comply with proceedings under the Dissolution of the Muslim Marriages Act.

 On Last September, AIMPLB(All India Muslim Personal Law Board) had filed an affidavit in the Supreme Court as a response to petitions by Shayara Bano and others who were opposing triple talaq.

The practice faced opposition from Muslim women, some of whom filed a public interest litigation in the Supreme Court against the practice, terming it “regressive”. The petitioners asked for section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, to be deleted, describing it as being against Article 14 of the Constitution (equality before law).

On 13 May 2017, during the hearings before its final judgement, the Supreme Court described triple talaq as the “worst form of marriage dissolution”. It noted that the custom is banned in the Muslim-majority countries of Saudi Arabia, Morocco, Afghanistan and Pakistan.

On 8 December 2016, the Allahabad High Court observed in a ruling that the practice of triple talaq was unconstitutional and violated the rights of Muslim women.

In March 2017, over 1 million Indian Muslims, a majority of whom were women, signed a petition to end triple talaq. The petition was started by the Muslim Rashtriya Manch, an Islamic organisation .

The petitioners against Triple talaq support the argument that says that, there does appear to be evidence that shows Triple talaq is just an innovation that does not have much to do with Quranic beliefs.

On 10 May 2017, senior cleric Maulana Syed Shahabuddin Salafi Firdausi denounced triple talaq and nikah halala, calling them un-Islamic practices and instruments to oppress women. The practice was also opposed by Hindu nationalists and Muslim liberals

“Absence of consensus in Court makes it more difficult to forge consensus within communities. Glad that Court set aside a ‘sinful’ practice,” Congress leader Kapil Sibal tweeted after earlier opposing Triple talaq.

Triple talaq has been supported by the All India Muslim Personal Law Board (AIMPLB), a non-governmental body that supervises the application of Muslim personal law. It propagates that the state does not have the right to intervene in religious matters “.

Kapil Sibal cited Article 371A to state that even the Constitution does intend to protect matters of practice, tradition and customs of communities.

The regressive practice employed by Muslim men to divorce their wives instantly without their consent, by uttering the word ‘talaq’ thrice has been in practice in India for many years now. Several Muslim women were forced to accept the discriminatory

Shayara Bano, one such victim of this  custom, filed a PIL in the Supreme Court seeking a ban on the practice, and it has been going on since then.

 Modi government filed an affidavit in the Supreme Court officially opposing Triple Talaq.

However, the Muslim law board has been opposing its abolition saying that triple talaq is a ‘personal law’ and hence cannot be modified by the Centre.

Shayara Bano Case.

Shayara Bano, who was  into national headlines with her petition in the Supreme Court questioning the legality of triple talaq and  told that she was forced to go to the SC against this triple talaq because she could “no longer bear the ordeal”.

The 37-year-old post graduate in sociology from Kashipur in Udham Singh Nagar district, said she just wants justice and move on with her life.

She alleged that she was made to undergo as many as six abortions by her husband who forcibed her to take such pills which ruined her health, not only this ,this  mother of two children  said that she longed to be with her children who were with her husband.

After all this ,Bano’s husband, Rizwan Ahmed, had posted a ‘talaqnama’ to her in October, which led her to take legal action to the judiciary to get the triple talaq or talaq-e-bidat declared illegal. The case grabbed attention when the SC last month admitted her petition seeking triple talaq be declared unconstitutional.

​2. Afreen Rehman case.

 Afreen Rehman, a 25 year old woman got a mail through ‘Speed Post’. It was a divorce, a ‘triple talaq’.

The young woman, in May, moved  to the Supreme Court against Islam’s ‘triple talaq’ provision.

“I have received speed post announcing divorce. This is completely wrong, unfair and unacceptable. I have filed a petition in the Supreme Court seeking its intervention into the matter.”

3. ‘Triple talaq’ via WhatsApp

Ten days after her marriage, a 21-year-old BDS student’s groom left for Dubai. They were not in communication after going of his husband to dubai, after  three weeks, he sent her a message  “triple talaq” over WhatsApp.

The unexpected talaq shattered the woman and her family. Both she and her sister, a Plus Two student, had to drop out of their classes.

Overcoming the initial shock, the young woman lodged a complaint at the state women’s commission’s adalat in Pala, Kottayam.

4. 30-year-old divorced on phone

A  husband demanded divorce to 30-year-old woman over the phone. She alleged that her husband hounded her after he questioned her for not giving birth to a boy.”He was not satisfied and he wanted to have another son.Her children were also taken away from her by her husband..The woman has also leveled charges of molestation against her husband’s elder brother.

Judgement

The bench had five judges from five different communities. Chief Justice JS Khehar, a Sikh, Justices Kurian Joseph, a Christian, RF Nariman a Parsi, UU Lalit a Hindu and Abdul Nazeer a Muslim.

The Supreme Court has to examine whether Triple talaq has the protection of the constitution—if this practice is safeguarded by article 25(1) in the constitution that guarantees all the fundamental right to “profess, practice and propagate religion”.

In a 397-page ruling, though two judges upheld validity of triple talaq (talaq-e-biddat), the three other judges held that it was unconstitutional, thus barring the practice by 3:2 majority. One judge argued that triple talaq violated Islamic law. The bench asked the central government to promulgate legislation within six months to govern marriage and divorce in the Muslim community. The court said that until the government formulates a law regarding triple talaq, there would be an injunction against husbands pronouncing triple talaq on their wives.