INTRODUCTION
Divorce refers to the legal dissolution of marriage by court or other equally competent authority. Triple talaq is one of the forms of divorce that was practised in India until the Triple Talaq Amendment bill was passed. In this, a Muslim man could legally divorce his wife by pronouncing the word “talaq” three times. What has been the law? What were factors leading to changes and what changes were suggested? What changes have been brought about? What is the effect and future of the law? These are the questions which are required to be addressed.
DIVORCE IN ISLAM
The main source of Islamic laws is the Holy book Quran. It is a strong belief that nothing written in Quran shall be deemed as social evil as it was written not by a human but it is a revelation from Allah for the benefit of whole mankind. Talaq is considered to be a sin in Quran but it is allowed only if it becomes completely impossible to continue the marriage, the procedure of dissolution are being provided in Quran.
There are different types of talaq, the controversial of them is:-
TALAQ-e-BIDAT. This is one of the forms of talaq in Muslim law which is also known as talaq-e-bidda or Triple talaq which has been the most controversial one. Triple Talaq is a form of divorce in which the husband can give divorce to his wife by pronouncing the word Talaq thrice. At the time of pronouncing the talaq, the presence of wife is not required and she can be given Talaq without giving a valid reason to her. The expression “Talaq” denotes the repudiation of marriage by the husband under Muslim law. The act of triple Talaq has been prevailing since the old times in India. This practice is not referenced in the Quran and the Sharia law. According to the Quran, marriage is planned to be unbounded in time the connection between the companions ought to be founded on affection and the significant choice concerning the two life partners should be made by mutual consent.
AMENDMENTS AND THE FACTORS LEADING TO THE SAME
The new amendment in The Muslim Women (Protection of Rights on Marriage) Act, 2019 makes talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrovacable divorce pronounced by a Muslim husband void and illegal. Now, the announcement of talaq three times in any form that is either in spoken or written or in electronic form shall be deemed as void and illegal. It further provides for the imprisonment upto three years and for the liability of fine as well. The bill as introduced earlier as well which could not be passed in Rajya Sabha and hence stand lapsed. In August 2017, the triple talaq judgment was also passed by the Hon’ble Supreme Court of India declaring it unconstitutional and hence striking it down with 3:2 majority. It was held by the Supreme Court that triple talaq violates the basic Fundamental Rights of women enshrined in the Constitution and the Constitution surpasses each and every type of law in the country since it is the supreme law of the land. Moreover, it was said that the custom of triple talaq has never been the part and parcel of their own religion that is Islam and is theologically sinful.
There are a lot many factors that have lead to the abolition of triple talaq altogether. The major reason has been the case of Shayara Bano v. Union of India (C No. 18 of 2016) in the woman named Shayara Bano filed a writ petition under Article 32 of the Indian Constitution after she was divorced by her husband through triple talaq pronouncement. She mentioned that this form of talaq was a one sided form of talaq in which the woman is treated as a mere asset. She wrote that it was completely the violation of right to equality before law (Article 14), right to life (Article 21) and prohibition of discrimination (Article 15) of the Constitution. This undervalues the very dignity of a woman.
The another major reason is that the Holy Quran itself does not allow the dissolution of marriage per se. The sanctity of the marriage is strongly maintained by Islam. It has always encouraged continuation of marriage and dovorce can only be taken in dire circumstances. There is a long process involved in the utterance of the word talaq itself. It cannot be done instantly and simultaneously. Moreover, the other Islamic countries such as Pakistan, Afghanistan, Saudi Arabia, Morocco have banned triple talaq way back. Triple talaq is the major form of divorce which has been constantly misused by Muslim men in order to get rid of their wives. Muslim women used to suffer a lot and have undergone various major incidents of violence and even killings. In addition to this, triple talaq is violative of Fundamental Rights guaranteed in the Indian Constitution. No law is above the Constitution of India and hence if any act or law violates the rights of individuals, it should be declared void. However, with the assent of the President, the bill of amendment of triple talaq has outlawed the same.
THE EFFECTS AND FUTURE OF THE LAW
With the criminalisation of triple talaq, the punishment and fine for the offence have been set. So now if any Muslim husband makes the pronouncement of the illegal form of talaq upon his wife shall be punished with imprisonment for a term which may extens to three years and shal also be liable to fine. It has been said that it might be misused to harass Muslim men. It gives police officials full authority to arrest the offender without requiring a warrant. But, in order to check misuse, the cognizance can only be taken if the complaint has been filed by the aggrieved party or any of her relations. Moreover, the aggrieved is entitled to demand the maintenance for herself as well as for her children also. But the question arises that who will give the maintenance? Hence the law has further diluted the maintenance provision for Muslim women. It has been further argued that why there is the provision of punishment of imprisonment only for Muslim men? The objective is clear that is to punish Muslim husbands only. It has been rightly argued that if the motive was to protect Muslim women from unhappy marriage, no reasonable man will tend to believe that putting an errant husband in jail for three years will serve the purpose. How Muslim women will get protection by incarceration of their husbands? It is preposterous that uttering a word which has no legal effect for anybody per se, will put a Muslim man behind bars. The new law is silent on all of these issues.
CONCLUSION
In order to sum up, it is clear that the new law has brought about to benefit that section of society which has always been at the verge of atrocity. However, it has also become more important to notice the relevance of the new law. Although, it has many lacunas but the ones’ which exist are major. In order to bring about parity and justice to the whole community, it has become extremely important to make the law welfare-oriented that would promote an amicable resolution of matrimonial disputes, rather than introducing more disputes and conflicts along with a lot many problems.
This Article is authored by Ritika Sharma, 2nd Year Law Student at Vivekananda Institute of Professional Studies(GGSIPU))
