ABSTRACT
This article deals with the most controversial and critical journey of triple talaq and the issues related to Muslim law. The altercation around talaq is that how it is practiced in modern-day society. The concern of triple talaq is considered as highly discreet among Muslims, not only sticking to India but also elsewhere. This controversy deals from the very beginning when caliph, Umar pronounced the validity of talaq-e-biddat to till the annulment of this custom in India. The sacred Quran is very cautious in matters of divorce. This paper moreover ascertains various elucidation since Muslim law isn’t codified and subject to shariat law.[1] The current article covering the movement of the judiciary from shah bano to sharaya bano and several clusters of petitions and also supreme courts own suo moto PIL considers certain angles of Islamic individual laws which sum to gender discrimination and consequently abuses the structure misses the point of intersectionality. According to the general perception of rights for the empowerment of women, there is need to the inferiority of category of culture and religion. However it be the constitutional rights would stay a dead letter if we don’t get it the way in which political issues unfurls particularly in case of women. Thisessay deals with the question of triple talaq within the light of the appeal filed in the Supreme Court tending to announce such talaq invalid. This paper also underlines “The Muslim Women (Protection of Rights on Marriage) Bill, 2017” with aim and objectives to concludes with a few curiously analysis.
INTRODUCTION
For the most part human rights are compared with more opportunity and progress. Anyway, it ends up appropriate to take note of that presenting rights don’t generally bring about liberation. Numerous social practices that reflect social disparities hide behind the cover of religion. One such universalistic subject is the picture of altogether exploited Muslim ladies who needs protection through the liberal rights discourse.
Read – Transformative Constitutionalism – The Saga Of Social Change
This article deals with the most controversial and critical journey of triple talaq and the issues related to Muslim law. The altercation around talaq is that how it is practiced in modern-day society. The present discussion around triple talaq, focused on the Sharaya Bano and a few clusters of petitions just as Supreme court’s claim suo moto, PIL considers certain parts of Islamic individual laws which add up to separation and subsequently damages the constitution overlooks what’s really important of intersectionality.
OBJECTIVES
- To know about the rights of Muslim women
- To study the impact of criminalizing triple talaq
- To examine the protection of the rights of Muslim women
BACKGROUND
“Triple talaq is a 1400-year-old practice among Sunni Muslims”[2]. However, this is not specified in Shariat laws or Quran. Prior to the Muslim personal law (shariat) Application Act,1937 the Muslim family law was governed and was binding on all Indian Muslims by the so-called “Anglo-Mohammedan Law” which was enacted by the British.
Ulama (class of Muslim legal scholars) was use to interpret of Muhammedan personal law of shariat. Ulama of HanafiSunnis believed biddat binding upon the proclamation was made before Muslim witnesses and afterward affirmed by a sharia law.
This controversial issue triple talaq has first appeared in the shah bano begum[3] case of 1985. in addition to seeking alimony from her spouse who pronounced triple talaq against her, the victimized wife also challenged the long-established practice of triple talaq, halala nikah andpolygamy.
Be that as it may, the primary essential judgment concerning the issue saw its light in 2002 in the case of Shamim Ara Vs. State of UP.[4] This case even though not nullified the hone of triple talaq but put certain restrictions on it. Within the same year, the Aurangabad seat of Bombay Tall Court nullified the hone by giving a reference from Dagdu S/O Chotu Pathan, Latur Vs. RahimbiDagdu Pathan, Ashabi .[5] In this case, the court held that Muslim male cannot deny his marriage at his will and is required to demonstrate different grounds and stages for the same. These judgments supported in the creation of a system of administering that negated the long-run patriarchal practice of Triple Talaq.
FACTS
Triple talaq is a form of Islamic divorce that has been practiced in India, whereby a Muslim man could legally divorce his wife by pronouncing three times talaq (the Arabic word for divorce).The current debate of triple talaq this tradition of talaq had ruin the life of many Muslim women’s and it finally took rise by the casualties of the convention themselves. Shayara bano of age 36 years old native of Uttrakhandfiled the petition, defining facade in the lawful fight against the patricentric convention which demolished the lives of thousands of Muslim ladies.
The main petitioner shayara bano after she knocks the doors of supreme court in 2016 requesting that the talaq-e-biddat articulated by her spouse be settled as void, after her 14-year marriage ended unexpectedly in October 2015. “She moreover fought that such one-sided, unexpected and irreversible form of divorce be pronounced unlawful, contending that the practice of triple talaq abused the elemental rights of Muslim women”[6].
Read – Triple Talaq And The Indian Constitution- Applicability, Releveance And Scope
The appeal subsequently challenges the legitimacy of triple talaq on the touchstone of article 15, article 25, article 21 and article 14. Resulting to all these fundamental rights are being terminated. It states that:
“It is submitted that devout officers and clerics like imams, maulvis, etc. who proliferate, bolster and approve practices like talaq-e-bidat, nikah halala, and polygamy are terribly abusing their position, impact and control to subject Muslim ladies to such gross practices which treats them as chattel, thereby damaging their essential rights revered in Articles 14, 15, 21 and 25 of the constitution”.
The essential summons petitions which driven to this landmark judgment were the ones filed by Shayara Bano and Ishrat Jahan, individually. They and the other applicants had addressed the constitutional authenticity and thus the legitimacy of continuation of ‘talaq-e-biddat’, ‘nikah halala’ and polygamy which are purportedly allowed beneath Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. The Supreme Court chosen to as it were dealing with the issue of triple talaq, considering the factual viewpoint of the case.
CONSTITUTIONAL VALIDITY OF TRIPLE TALAQ
The Honorable Court has intervened on the difficulty of triple talaq and has tried to interpret the verses within the Quran. In Yusuf v. Sowramma[7], showed that male has more power than women as compare to Muslim women’s in terms of dissolution of marriage. The holy Quran prohibit divorce as long as the women is honest and obedient. Justice Krishna Iyer observed that:
“Since reliability isn’t a characteristic of the judiciary, the view has been wandered by Muslim legal advisers that the Indo-Anglian legal work of the Islamic law of judicial separation has not actually been simply to the Holy Prophet or the Holy Book. The see that the Muslim spouse appreciates a subjective, one-sided capacity to cause instant divorce does not accord with Islamic directives.” The judicial connoisseur looked into the verse of Quran and also referred to different sect of Islam while deciding this case with respect to triple talaq.
The above observations tells how the Muslim community needs to be made aware of correct procedure of divorce and pronouncing talaq in one single go is oppressive against women.
Chapter IV verse 35 of Quran which says, “Any if you fear a breach between the two, appoint an arbiter from his people and an arbiter from her people. If they desire agreement, God will impact amicability between them.”
In the landmark judgment of Shamim Ara v. state of U.P.[8] the Supreme Court held that there must be two conditions that needs to be satisfied. Firstly there should be reasonable cause for the divorce and secondly there must be some efforts made by the arbitrators for reconciliation between husband and wife. If these two are fulfilled then talaq is not valid and recognized.
In the case of A.S. ParveenAkthar v. Union of India[9] the Supreme Court upheld the validity of the triple talaq. This judgment abuses the principal rights for example Article 14, 15 and 21 that is an essential part of Constitution. Triple talaq is against the privilege of correspondence which is referenced under article 14 of the Indian Constitution. Supreme Court has rightly pointed out that personal law conferring inferior status on women is considered as an anathema to equality. Article 14[10] exemplifies the guideline of non-discrimination. The divorce given by spouse unilaterally is against the standards of non-separation which is a significant of the Constitution of India. The routine with regards to significantly increase talaq is unfair and against Part III of the Constitution.
Article 15(1) of the Constitution[11] forbids the state from victimizing any native on the ground of religion, race, sex, or any of them. Such type of talaq is against article 15 based on religion and sex just as it separates the ladies itself. Article 21[12] of the Constitution gives the privilege to life and freedom with the exception of by the procedure made by law. The privilege to life ensured under Article 21 incorporates right to livelihood. Criticizing from the ordinary arrangement of divorce, triple talaq harms the essence of Article 21.
JUDGMENT
In Shayara Bano and Ors. v. Union of India (UOI) and Ors case[13] , case, the validity of Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 and Articles 13, 14, 15, 21, 25 and 142 of Constitution of India was challenged. The 5 judge bench that heard the case consists of multifaith religious members. The five judges from five distinctive communities are Chief justice JS Khehar, a Sikh, Abdul Nazeer a Muslim, RF Nariman a Parsi, Judge Kurian Joseph a Christian and UU Lalit a Hindu.
In a larger part 3:2 judgment, a five-judge Seat of the Supreme Court set aside talaq-e-biddat or instant and irreversible talaq as a “clearly subjective” practice, which isn’t secured by Article 25 (freedom of religion) of the Constitution.
Justices Kurian Joseph and Rohinton Fali Nariman each gave separate judgment over the validity of instant triple talaq, whereas Justice U.U. Lalit bolstered the judgment of Justice Nariman’s. This makes up the trinity of judges who ruled against instant talaq.
Chief justice J.S Kheher, the head of bench, held that triple talaq is an integral part of article 25(freedom of religion). He said this tradition had been followed by Hanafi’s for over 1400 years and therefore makes a part of religious activity. The judgment he held that instant talaq does not violate Articles 14, 19 and 21 of the Constitution, and passed it on to the council inside six months to choose a law. Invoking extraordinary purview under Article 142, the Chief Justice injuncted Muslim men from separating their spouses using instant talaq. This view was supported as it were by justice S. Abdul Nazeer, in this way, making it the minority judgment.
The final order of the court at the conclusion of the judgment pronouncement session, Chief justice Khehar tended to the court and concluded that “by majority of 3:2, talaq-e-biddat is set aside.”[14]
CONCLUSION
More than twenty Muslim countries banned the triple talaq, including Pakistan, Sri Lanka and Bangladesh. Egypt was the first country to declare triple talaq invalid or irregular. If more than 20 Islamic countries banned the practice of triple talaq. So why not India banned the practice of triple talaq. In the case of Shayara Bano, the Supreme Court held that the triple talaq is unconstitutional by 3:2 majority and passed the Muslim Women (Protection of Rights) Bill, 2017 in the Lok Sabha order, but it is still under consideration in the Raja Sabha. The objective of the bill is “the prevention of the rights of Muslim ladies and the denial of divorce through the way to0 pronouncing talaq by their husbands The Bill is declared the instant talaq to be illegal and void. Triple talaq is punishable for three year imprisonment under the Bill.
[1]Muslim personal law (shariat) Application Act,1937,No. 26, Act of Parliament, 1937(India)
[2]Harshita Sharma, triple talaq bill in rajya Sabha : know the main facts and the controversies, my india, jan 9,2019
[3]Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945
[4]Shamim Ara Vs. State of UP, AIR 2002 SC 3551
[5] Dagdu S/O Chotu Pathan, Latur Vs. RahimbiDagdu Pathan, Ashabi,2003 (1) BomCR 740
[6] Omar Rashid, Who is Shayara Bano, the triple talaq crusader?,The Hindu ,Apr. 7, 2018.
[7]AIR(1971) Ker 261.
[8]AIR 2002 SC 3551
[9]AIR 2003 1 LW 370
[10]Article 14, The constitution of India
[11]Article 15(1), ibid
[12]Article 21, ibid
[13](2017) 9 scc 1
[14]Krishnadas rajagopala,Supreme Court sets aside instant ‘talaq’, THE HINDU, august 22, 2017.
