TRIPLE TALAQ: INDIA’S BATTLE AGAINST THREE WORDS

This article was written by Navnoor Kaur, a student of Institute of Law, Kurukshetra University.

INTRODUCTION

“Of all the evils for which man has made himself responsible, none is so degrading, so shocking or so brutal as his abuse of the better half of humanity; the female sex.” 

― Mahatma Gandhi

Religion is a social institution which attempts to direct the behaviour of a man into the right direction. It attempts to transform a man into a human. Religion teaches us to be benevolent, altruistic, just and fair. It provides us hope and optimism. Religion gives solace to the hopeless, hapless and destitute strata of society. It is an instrument of peace and harmony. Unfortunately, some nefarious people often misuse religion to fulfill their evil designs. One such example is whimsical practice of ‘instant triple talaq’ by some Muslim men as per their whims and fancies.

MARRIAGE IN ISLAM

In Islamic Law, marriage (also known as nikah) is a legal and social contract between the groom and the bride, signed in front of at least two male witnesses. ‘Mahr’ is the consideration of marriage. It may be paid in the form of cash, property or movable objects to the bride. Marriage in Islam is a contract but also a sacred covenant.[1]In Shoharat Singh v. Jafri Begum, the Privy Council has also said that nikah under the Muslim Law is a religious ceremony.[2]

TALAQ AND ITS FORMS

Muslim marriage can be terminated by talaq. ‘Talaq’ means ‘repudiation’ or ‘divorce’. Mainly, there are two kinds of talaq: ‘Talaq-ul-Sunnat’ and ‘Talaq-ul-Biddat’.Talaq-ul-Sunnat is an approved form of talaq. It is further divided into two types: ‘Ahasan’ and ‘Hasan’. Ahasan is the best and the most appropriate form of talaq. In Ahasan Talaq, the husband pronounces the divorce in a single sentence when the wife is in the state of Tuhr (purity). After this pronouncement, the wife has to observe an Iddat period consisting of three menstrual cycles. The couple must abstain from intercourse during the Iddat period. The divorce can be revoked during the period of Iddat. InHasan Talaq, talaq is pronounced by the husband three times during three successive Tuhrs, one pronouncement in each Tuhr. Talaq can be revoked before the third and the final pronouncement. In this talaq also, the wife observes a three month long period of Iddat.

Talaq-ul-Biddat is considered as the worst form of talaq. It is also known as instantaneous triple talaq. In Talaq-ul-Biddat, the husband utters the word talaq three times in one go. It becomes effective and irrevocable as soon as it is pronounced.[3]

WHIMSICAL USE OF TRIPLE TALAQ

Prophet Mohammed has never advocated a talaq in which there is no possibility of reconciliation. So, instant triple talaq was not prevalent during his time. Instantaneous triple talaq was initiated by Caliph Umar. He enforced it because some men had made talaq a joke by reconciling with their wives even after uttering talaq several times. Therefore, instant triple talaq was started keeping in view the circumstances of a particular time-period. It was basically meant for the welfare of society at that particular point of time. But nowadays, it has become an instrument in the hands of Muslim men which they can use as per their advantage, without bothering about their wives. Some Muslim men divorce their wives by writing triple talaq on walls of their house, some do SMS, some use Whatsapp and others use Facebook. They treat their wives as puppets whose rope is in their hands and they can tighten and loosen it as per their wish. These three words have destroyed many lives.

Several shocking triple talaq cases have come to light recently where women were given divorce over really trivial cases. For instance, Shazia, a mother of two girls from Firozabad, UP was given divorce for demanding mere 20 rupees from her husband.[4] Similarly, a 26 year old woman from UP was given triple talaq by her husband because she gave some snacks to her parents without his permission.[5] Also, a woman hailing from Pilbhit district of UP    was given talaq over phone and when she refused to accept it, she was attacked with acid by her in-laws.[6]These cases clearly exhibit the suffering of Muslim women due to instant triple talaq. Their lives have changed totally because of these three words. Triple talaq makes a woman homeless, hopeless and hapless within a few seconds. Not only the women, but also the children suffer a lot due to this practice. Some kids are not allowed to meet their mothers and some are thrown out of house along with their mothers. So, the practice of triple talaq clearly violates the fundamental human rights.

INDIA’S BATTLE AGAINST THE THREE WORDS

MUSLIM WOMEN FIGHTING AGAINST TRIPLE TALAQ (DAILYO)

The burning issue of triple talaq came to light after Shayara Bano’s case. She hails from Uttarakhand and her husband gave her talaq through letter in October 2015, terminating their 15 years old marriage. She then filed a petition in the Supreme Court challenging the validity of Talaq-e-Biddat, polygamy and nikah halala. She has urged to declare the above-said practices as illegal and unconstitutional, as they violate the fundamental rights guaranteed by the Constitution under Articles 14, 15, 21 and 25.

The Bharatiya Muslim Mahila Andolan (BMMA) has also continously fought against triple talaq.BMMA has received many complaints against triple talaq. On this, Zakia Soman, co-founder of BMMA said’ “In the course of our work, we have regularly been approached by our sisters, complaining about mistreatment and misuse of the oral talaq system.In most cases, men go scot-free and believe their action is approved by the Quran.”[7]BMMA also started an online petition to ban triple talaq which was signed by 50,000 Muslim women across India. Majority of the Muslim women are against triple talaq and this has been revealed in a survey conducted by BMMA. As per the survey, over 90% of Muslim women wanted to ban the instant triple talaq.[8]The Indian Government has also strongly condemned the practice. Prime Minister Narendra Modi said, “Our Muslim sisters should also get justice. Injustice should not be done with them. Nobody should be exploited.”[9] In his Independence Day speech, PM praised the Muslim women fighting for their rights. He said, “I heartily commend those sisters who have launched this movement, who have been fighting against ‘triple talaq’ and I am confident that the country will help them in this struggle.”[10]

Muslim Rashtriya Manch (MRM), an organization affiliated with the Rashtriya Swayamsevak Sangh has also campaigned against triple talaq. It started a petition to end triple talaq which has been signed by over a million Muslims across India.[11]

VIEW OF INDIAN COURTS ON TRIPLE TALAQ

Indian Courts have also termed the practice of triple talaq as unconstitutional. Allahabad High Court has observed that triple talaq is against the provisions of constitution. It held: “Muslim men can’t give divorce in this way, it’s against right of equality; personal law can only be implemented under the constitution.”[12]

The Supreme Court Verdict on Triple Talaq on 22^nd August, 2017 became a breakthrough in the Indian history. The five-judge Constitutional bench of the Supreme Court began the historic hearing on May 11 2017.The bench consisted of five judges from different faiths including the then Chief Justice JS Khehar, Justice Kurian Joseph, Justice Rohington Nariman, Justice UU Lalit and Justice Abdul Nazeer. Six days schedule was fixed in which three days were given to those challenging triple talaq and three to those defending it .

The Supreme Court delivered its judgement on August 22, 2017. The Supreme Court banned the practice, calling it ‘unconstitutional’. The 3:2 majority held that triple talaq “is not integral to religious practice and violates constitutional morality.”Justice Kurian Joseph, Justice Rohington Nariman and UU Lalit said, “What is sinful under religion cannot be valid under law.”Justice Kurien Joseph mentioned that “What is held bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”However, Chief Justice (now retired) JS Khehar and Justice Abdul Nazeer opined different from majority and said while triple talaq “may be sinful”, the court can’t interfere in personal laws which have the status of fundamental right under the constitution.[13]The Supreme Court has barred triple talaq and directed the government to bring law on triple talaq within six months. It also laid down that if the law is not enacted within six months, the injunction will continue.

All India Muslim Personal Law Board (AIMPLB), which has earlier made every possible effort to defend triple talaq, is also claiming to be happy with the decision. The Board in an official statement said: “We as a representative body, welcome the judgement of Supreme Court since it accords the protection to Muslim personal law and says that personal laws cannot be tested on the grounds of violation of fundamental rights.”[14]

POST-VERDICT REACTION: WOMEN CELEBRATING BAN ON TRIPLE TALAQ (New Indian Express)

The verdict has brought smiles on millions of faces. The Muslim women were very happy. Their revolution has been successful. They distributed sweets and celebrated their victory. They felt relieved because the haunting triple talaq is no longer valid in India. The entire nation shared the joy of Muslim women. Many people including Prime Minister Modi, Amit Shah, Salman Khursheed and Rahul Gandhi welcomed the decision. But the battle was still not over. The entire nation awaited a competent legislation on the subject. Finally, the Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced in Lok Sabha in December, 2017.

 MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017:

The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on December 28, 2017. The Lok Sabha has passed the bill on 28 December, 2017 and it is still pending before Rajya Sabha.

BASIC PROVISIONS:

• The bill documents every form of instantaneous triple talaq (verbal, written or electronic) as void and illegal.
• The bill makes declaration of triple talaq a cognizable and non-bailable offence.
• The offender (the pronouncing husband) shall be punished with an imprisonment which may extend to 3 yrs and a fine (maximum Rs. 5000).
• The victim (the married Muslim woman upon whom talaq is pronounced) is entitled to seek the custody of her children.
• The victim is also entitled to seek subsistence allowance from her husband for herself as well as for the upbringing of her dependent children.
• The allowance shall be determined by a First Class Magistrate.

However, the Bill has been criticized on various points. The criminalization of divorce, which is an entirely civil matter, has been highly criticized, especially by the Civil Society whose opinion was not called for by the government while drafting the bill. Furthermore, the bill provides for subsistence allowance and imprisonment of 3 years to the husband. Both the provisions look contradictory to each other. How will an imprisoned husband provide allowance to his wife from jail? This question has been left untouched by the government.

THE GLOBAL PERSPECTIVE:

Triple Talaq is banned in many countries, including the Muslim nations. Among the Arab states, Algeria, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Sudan, Syria, Tunisia, United Arab Emirates and Yemen have abolished this practice. The Asian countries like Indonesia, Malaysia, Philippines, Pakistan, Bangladesh and Sri Lanka have also enacted laws banning this practice. Furthermore, these countries have enforced gender-neutral divorce rules.

CONCLUSION:

The Bill is still pending before the Rajya Sabha. The viewpoint of the Civil Society, the representatives of Muslim women and the other political parties should also be considered for making the required amendments so that the bill can come out as a competent legislation. But more than the legislation, the need of the hour is to create awareness among the Muslim women about the illegality of Talaq-e-Biddat. There are laws prohibiting dowry and female foeticide also but these evils are still prevalent due to lack of awareness, education, eagerness and proper implementation of concerned laws. So, there is not only a need to bring an effective law but also to implement it effectively. Awareness must be spread among the masses regarding the invalidity and illegality of instant triple talaq through camps, advertisements, movies, plays and skits etc. But the government can’t do this alone. The Civil society and active citizens must also do their bit by spreading awareness about the verdict. The common men should also inform about SC’s ruling to their Muslim acquaintances. It is a long row to hoe but we must not forget that Rome was not built in a day. At last, I would like to quote the words of Michelle Obama that ‘the measure of any society is how it treats its women and girls.’ So, we must empower our women to be a powerful nation.

[1]Aanshi Bhatnagar, ‘What is the nature and essentials of a Muslim marriage?’ (Share Your Essays, n.d.) http://www.shareyouressays.com/117444/what-is-the-nature-and-essentials-of-a-muslim-marriage accessed 29 June 2018

[2]Mohammed A. Qureshi, Marriage and Matrimonial Remedies (Concept Publishing Company 1978) 43

[3]Pragati Ghosh, ‘What are the Kinds of Talaq under Muslim Law in India?’ (Share Your Essays, n.d.) http://www.shareyouressays.com/117523/what-are-the-kinds-of-talaq-under-muslim-law-in-indiaaccessed 29 June 2018

[4]Arvind Chauhan, ‘Mother of two given triple talaq in Firozabad over rupees 20’ (The Times of India, 15/ 05/ 2017) http://timesofindia.indiatimes.com/city/agra/mother-of-two-given-triple-talaq-in-firozabad-over-rs-20/articleshow/58672433.cms  accessed  30 June 2018

[5]Peeyush Khandelwal, ‘UP woman given triple talaq for giving a ‘namkeen’ packet to her parents’ (Hindustan Times, 11 05 2017)<http://www.hindustantimes.com/noida/woman-given-triple-talaq-for-giving-a-namkeen-packet-to-her-parents/story- Lj5elcXAc7BBD3NdVrh50K.html>  accessed 22 August,2017

[6]News18, ‘UP Shocker: Woman Attacked With Acid For Refusing Triple Talaq Over Phone’ (News18,16/ 04/ 2017) http://www.news18.com/news/india/up-shocker-woman-attacked-with-acid-for-refusing-triple-talaq-over-phone-1375003.html   accessed 30 June 2018

[7]Saif Khalid, ‘What is ‘triple talaq’ or instant divorce?’ (Aljazeera, May 2017) http://www.aljazeera.com/indepth/features/2017/05/tripple-talaq-triple-divorce-170511160557346.html  accessed 30 June 2018

[8]Hindustan times, ‘90% of Muslim women want ban on oral talaq, finds survey’ (Hindustan Times, 12 June, 2017) http://www.hindustantimes.com/india/90-of-muslim-women-want-ban-on-oral-talaq-finds-survey/story-KOqZCjWYx52D8ES1cSo7uI.html  accessed 30 June 2018

[9]PTI, ‘90% of Muslim women want ban on oral talaq, Justice should be done to Muslim women, says Modi on triple talaq’ (The Hindu, 16 April,2017)http://www.thehindu.com/news/national/justice-should-be-done-to-muslim-women-says-pm-on-triple-talaq/article18071517.ece  accessed 30 June 2018

[10]TNN, ‘PM Modi pledges support to women fighting triple talaq’ (Times of India, 16 August , 2017) http://timesofindia.indiatimes.com/india/pm-modi-pledges-support-to-women-fighting-triple-talaq/articleshow/60078887.cms  accessed 30 June 2018

[11]Manveena Suri, ‘Triple talaq: 1 million Indian Muslims sign petition against divorce practice’ (CNN, 17 March, 2017) http://edition.cnn.com/2017/03/17/asia/triple-talaq-petition-1-million/index.html  accessed 30 June 2018

[12]Express Web Desk, ‘Basic rights of women cannot be violated in the name of personal law: Allahabad HC on triple talaq’ (The Indian Express, 9 May, 2017)http://indianexpress.com/article/india/basic-rights-of-women-cannot-be-violated-in-the-name-of-personal-law-allahabad-hc-on-triple-talaq/  accessed 24 August 2017

[13]A Vaidyanathan , ‘Triple Talaq: 5 Judges, 5 Faiths, What They Said’ (NDTV, AUGUST 22,2017) http://www.ndtv.com/india-news/5-supreme-court-judges-of-5-faiths-to-give-verdict-on-triple-talaq-1740329  accessed 30 June 2018

[14]Ht correspondent, ‘Triple talaq: AIMPLB says SC verdict ‘huge victory’ as it protects Muslim personal law’ (Hindustan Times, AUGUST 22,2017)<http://www.hindustantimes.com/india-news/triple-talaq-aimplb-says-sc-verdict-huge-victory-as-it-protects-muslim-personal-law/story-YWcUcPSnzohpf2Lw6WgEAL.html> accessed 23 August 2017