Talaq Under Muslim Law: An Analysis

“The most hated of permissible things to Allah is Divorce” 

- Sunah Ibn Majah 

INTRODUCTION

Marriage though being a contractual relation in Muslims has been considered pious and of immense importance. It has been defined by the Prophet as – “Marriage is my Sunnah” when this institution of marriage forces the spouses to live a miserable life the Muslim law opens to them the way to Divorce or Talaq, through which dissolution of marriage takes place. Muslim law recognizes divorce and talaq as two separate ways of ending marital relationships. Talaq literally means to repudiate a marriage i.e. ‘to set free’. In Muslim law, Talaq means to end the bond of a marital relationship but it does not include freedom from all obligations. Under Muslim law the power to give divorce is vested with the husband. Mostly the way of giving divorce, the place of giving divorce and even the presence or absence of wife while pronouncing talaq is treated to be immaterial. 

CONCEPT OF MARRIAGE AND TALAQ IN MUSLIM LAW

Marriages under Muslim law are contractual in nature. A marital relation commences in Islam after the consent is received by both the parties. Marriage however apart from a contract is considered of great importance under Muslim law which creates certain rights and obligations on both partners. Marriage has been considered by Hadith, Prophet as the half completion of religion.[2] Apart from the institution of marriage Muslim law also provides for the dissolution of marriage through divorce or talaq if the spouses live a miserable life together. Quran, the Holy book of Muslims provides particulars about the divorce but clearly discourages the practice of divorce. As it clearly provides to observe a cooling period of 4 months before deciding to separate.[3] Quran stresses on reconciliation and not on talaq it provides for appointing an arbitrator to settle disputes between spouses.[4] 

FORMS OF TALAQ UNDER MUSLIM LAW

Muslim law provides for many modes to end the institution of marriage. They are 

1) By Divorce: The husband has been given the power to give divorce under Muslim law as he is the bearer of the family. He can give divorce in 3 forms : 

• Talaq – which can be Talaq-ul-Sunnat and Talaq-ul-Biddat, Talaq-ul-Sunnat is considered to be based on the ideals of Prophet Mohammed. It is categorized into two: Ahasan and Hasan. Ahasan is the best mode of divorce under which husband makes the pronouncement of divorce in a single sentence. However, in Hasan, the 3 consecutive pronouncements are to be made by the husband

Talaq-ul-Biddat – it is considered to be the worst form of talaq as it is the easiest way for a husband to end the marital relation. In this kind of talaq, he has to make three pronouncements which can be in a single sentence or separate sentences.[5] Talaq-ul-Biddat may be in the form of written talaq or triple talaq.  

• Ila- where the husband leaves his wife to observe iddat after taking the vow of not having sexual intercourse with her is known as ILA.
• Zihar- this form of divorce takes place only when a comparison is made by the husband between his wife and his mother or anyone from the prohibited degrees.

2) By Wife: the only mode through which a wife can demand a divorce from her husband is known as Talaq-e-Tafweez under which the wife can demand divorce if the husband has delegated the power to her.[6] 

3) By Mutual Consent: it can be of two types: Khula and Mubarat.[7] 

4) Dissolution of Muslim Marriage Act, 1939: Lian where the false charge of adultery on wife is made ground and other mode is Faskh where divorce is taken by approaching a Qazi who examines there relation carefully. 

TALAQ-UL-BIDDAT: AN INHUMAN PRACTISE TOWARDS MUSLIM WOMEN

According to the principles of Quran talaq must be the last remedy to resort after all the attempts to reconcile the couples have failed. Quran carries a pious perspective towards marriage and aims to make the marriage strong and ever-lasting. Also, it provides that even if the couples decide to end their marriage, sufficient attempts must be made to reconcile their marriage either by family or arbitrator. The court has also observed that the correct procedure of talaq laid down by the Quran is that it must be for a reasonable cause and must be preceded by attempts to reconcile between a couple by two arbiters one from each side, only if the reconciliation fails then talaq must be effected.[8] Quran also directs for the observation of the period of iddat with the view of giving time to their decision and not to act under sudden provocation. Talaq-Ul-Biddat or Triple Talaq was enforced under the Shariat Act, 1937 which is strictly against the norms of marriage and divorce lay down by Quran and also violates the procedure that Quran requires to be followed while giving divorce. Also under Talaq-ul-Biddat, the husband has extensive power and privilege to narrate the word talaq thrice in any form irrespective of the time, place, way and the presence of wife. He is even allowed to recite the words of talaq under intoxication. This mode of talaq is considered to be violative of Article 25 of the Indian Constitution.[9]

Triple talaq is also against the Human Rights of Muslim women as it neither gives them an opportunity to save their marriage nor any power to pronounce talaq from their husband on their will. It is also violative of the Convention on Elimination of All Forms of Discrimination against Women of which India is a Signatory.[10] The practice of Talaq-Ul-Biddat has an adverse effect over the entire society especially on the Muslim women who remain in continuous fear and mental insecurity towards their marriage [11] Triple talaq has been remarked improper from the moral point of view.[12] 

WHY TRIPLE TALAQ A MATTER OF DEBATE?

There has been a rising conflict towards the practice of triple talaq since decades. Where on one hand some orthodox Muslims treat intervening of the judiciary in personal laws as exceeding the jurisdiction, on the other hand, some Muslim organizations, as well as women, have continuously raised their voices against triple talaq. There has been a continuous demand for gender neutrality and justice to Muslim women. The practice of Triple Talaq has been abolished by 22 countries including Pakistan. But the task of banning triple talaq in India was never easy for two major reasons: 

1) Since the Muslim community is a minority religion in the country it is tough to change the personal laws 

2) The absence of Uniform Civil Code has made it Cumbersome to bring every religion under common law. 

There was a huge discontent amongst the Muslim women towards the practice of triple talaq and women from all parts of the country wanted this cruel practice of instant talaq to end. These oppositions were also supported by Bhartiya Janta Party as it was added as an issue in their Manifesto for elections in 2014. The demand for this gender justice was never new, groups like Bhartiya Muslim Mahila Andolan, Bebaak Collective and National Women’s Commission had also laid stress on violation of this practice, but the agitation gained fire only when a petition was filed by a lady aged 35 years and a mother of two children was divorced by her husband by sending her the talaqnama during her visit to her parents house.[13] Also, she was denied rights on her children by her husband. She in her plea demanded a complete ban on practices like Triple Talaq, Halala and Polygamy followed under Muslim law which gave Muslim Males the power to treat their Wife as an object. These practices were challenged and claimed to be violative of Article 14, Article 15(1), Article 21, and Article 25 of the Indian Constitution.[14] 

BAN ON TRIPLE TALAQ

Considering the plea made by Shayara Bano as well as various other petitions and Public Interest Litigations which demanded the ban on triple talaq the Supreme Court after clubbing all the petitions together On August 22, 2017 declared the practice of Triple Talaq as Unconstitutional with a majority of 3:2. The judgment was pronounce by a bench consisting of Chief Justice J S Khehar, Justice Kurian Joseph, Justice R F Nariman, Justice Uday Umesh Lalit, Justice Abdul Nazeer each belonging to the major religious communities in India i.e. Hindu, Muslim, Sikh, Christian and Zoroastrian.[15] Answering upon the 2 questions that were put forth in the plea 

1) The validity of triple talaq

2) Is triple talaq a necessary religious practice?

It was held in the majority decision that triple talaq is neither an essential religious practice nor valid. Also it was declared to be inconsistent with Right to Equality guaranteed under Article 14 of the India Constitution.[16] 

TRIPLE TALAQ BILL

Prior to the historic decision in Shayara Bano case17, The Muslim Women’s(Right to Protection on Divorce) Act was enacted in 1986 through a judgment by Supreme Court which made Section 125 of Criminal Procedure Code,1973 inapplicable to Muslim Women.18 But later this Act was challenge on the grounds that it violated Article 14, article 15 and Article 21 of the Indian Constitution. However the Court harmonized the act with Section 125 of CrPC, 1973 while holding the act Constitutional.[19] 

It was only after the decision imparted by Supreme Court in Shayara Bano v. Union of India[20] that, the government laid down the bill to criminalize triple talaq. This bill was enacted on July 31, 2019, after being passed by Lok Sabha on June25, 2019, and by Rajya Sabha on July 30, 2019. This was introduced in Lok Sabha by Law minister Mr. Ravi Shankar Prasad on June 21, 2019. This bill is also known as Muslim Women (Protection of Right on Marriage) Bill, 2019. It declares the practice of Triple Talaq to be void and illegal in any form under clause 3 of chapter 2 of the bill and makes it a punishable offence with 3 years of imprisonment and fine. According to the bill if the information regarding the practice of triple talaq is given by the married woman on who it was practiced or by any of her blood relatives then the offence will be cognizable. The woman is also entitled custody of her minor children as per the provisions of the bill[21].

Also if the Muslim Women is given talaq in the form of Talaq-ul- Biddat she is entitled to demand maintenance for herself and her children.[22] 

The Muslim Women (Protection of Right on Marriage) Bill, 2019 has however faced many criticisms by various groups. It has been alleged that it is violative of Fundamental Rights of Muslim Men. Also the punishment may end up aggravating the Muslim Community. Some people have also opined that pronouncing Talaq by Husband in the form of Talaq-Ul-Biddat must have been kept in the per view of “Domestic Violence” under the Protection of Women from Domestic Violence Act, 2005 which has comparatively strict provisions into it. 

CONCLUSION

The society in India has always been a patriarchal society which provided dominance to males thereby leading to gender injustice. One of the striking examples of this biased practice in the Triple Talaq which has always overlooked the opinion and rights of women by giving males the complete right of divorce. Triple Talaq was a practice which has continued in Indian Society since centuries on the lines of religion and the holy book Quran. However the Quran itself does not have any mention of triple talaq. Another important question has always been that triple talaq is an essential religious practice this question in itself is clearly baseless and vague as about 22 countries including many Islamic countries like Pakistan have themselves banned this practice and thus the veil is lifted and it is clear that triple talaq is neither important nor an essential religious practice. The ban of triple talaq has been a remarkable step taken by the judiciary which has protected lakhs of Muslim women and has developed in their minds a sense of security.

    by--
           Dipanwita Chatterjee, 2nd year law student, at the KIIT School of Law and she is currently pursuing B.A.LL.B

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REFERENCES:

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3 Saloni Sharma, Triple Talaq: A Critical Analysis, Racolb Legal (Sept. 4,2017), http://racolblegal.com/triple-talaq-a-critical-analysis/ (Last visited on 22nd April 2020)

4 Supra Note. 2

5 Pratibha Bansal, Talaq Under Muslim Law, iPleaders (June14,2019), https://blog.ipleaders.in/muslim-law-divorce/ (Last visited on 22nd April 2020)

6 Aqil Ahamad, Mohammedan Law, 182-183, (Prof. Iqbal Ali Khan, ed.26) (2016)

7 Mohammedan Law- Divorce in Muslim Law, Toppr, https://www.toppr.com/guides/legal-aptitude/family-law-i/mohammedan-law-divorce-in-muslim-law/ (Last visited on 22nd April, 2020)

8 Shamim Ara vs. State of U.P, AIR 2002 SC 3551.

9 The Constitution of India, 1949.

10 Dr.Manmeet Kaur, Triple Talaq ; A Critical Analysis,15 RJPP (2017)

11 Triple Talaq: How It Affects the Lives of India’s 90 Millions Muslin Women, INDIA TODAY (Aug. 22, 2017, 03:24 IST) https://www.indiatoday.in/fyi/story/triple-talaq-muslim-women-supreme-court-sharia-law-islam-968630- 2017-03-30 (Last visited on 22nd April, 2020)

12 Sarabhai v. Rabia Bai, (1906) 8 BOMLR 35 

13Shayara Bano and Others v. Union of India & Others, (2017) 9 SCC 1

14 Supreme Court of India advances women’s rights by holding instant divorce unconstitutional, ESCR-NET, https://www.escr-net.org/caselaw/2018/shayara-bano-and-others-v-union-india-and-others-writ-petition-c-no-118-2016 (Last visited on 22nd April, 2020) 

15 A Vaidyanathan, Triple Talaq, 5 Judges, 5Faith, What They Said, NDTV, (Aug.22, 2017. 3:59 PM) https://www.ndtv.com/india-news/5-supreme-court-judges-of-5-faiths-to-give-verdict-on-triple-talaq-1740329 (Last visited on 22nd April, 2020)

16 Hemant Varshney, Shayra Bano v. Union of India – Triple Talaq- Case Summary, LTJ, (Sept.14, 2018), http://lawtimesjournal.in/triple-talaq/ (Last visited on 22nd April, 2020)

17Supra Note. 17

18 Mohd. Ahmed Khan v. Shah Bano Begum , AIR 1985 SC 945

19Daniel Latifi v. Union of India, (2001) 7 SCC 740 

20 Supra Note. 17

21 Clause 7(c), Chapter 3 of TripleTalaq Bill, 2018

22 Triple Talaq Bill, BYJU’s Learning App , https://byjus.com/free-ias-prep/triple-talaq-bill-upsc-notes/ (Last visited on 22nd April, 2020.