Triple Talaq And Shah Bano Case

Abstract

In the given article we are going to talk about instant triple talaq. Triple talaq has many names like talaq-E-biddat, talaq-E-mughalazah, irrevocable divorce. Triple talaq is a form of Islamic divorce that is used by Muslim men in India, especially people who follow Hanafi school which is part of Sunni law. Talaq-E-biddat allows Muslim men to give divorce to his wife by uttering the word ‘talaq’ three times either orally, in writing, or in electronic form, it would be considered as legal divorce.

For the past very long time, the practice of triple talaq faced many controversies and debates. Triple talaq violates justice, human right, gender equality which is guaranteed to all citizens of India. Those debates even were gone to the Supreme Court and the government of India to establish article 44 of the Indian constitution and to establish a uniform civil code in India.

Introduction

On 22nd August 2017 Supreme Court banned triple talaq and declared it unconstitutional. Along with India and other countries also like Bangladesh, Sri Lanka, Pakistan also banned triple talaq. On 30 July 2019 triple talaq was declared illegal by parliament. In addition to banning triple talaq, the punishment act was also made on 1st august 2019. In Muslim law, dissolution of marriage or divorce can take place in four ways, Through husband, Through wife, Mutual consent, Judicial process.

In Muslim law, there are two ways where a husband can announce talaq or divorce i.e.

  1. Talaq-e-Sunnat
  2. Talaq-e-Biddat.

The first form of talaq, known as talaq-e-Sunnat. Sunnat refers to something which is traditionally followed. Talaq-e-Sunnat also have two kinds-

  1. Talaq-e-Hasan
  2. Talaq-e-Ahsan

Triple Talaq

In case of talaq-e-Ahsan, Ahsan means very good, pure. In this type of talaq, the husband announces talaq once. Wives must observe three months of the Iddah period. If arbitration takes place during these three months, then the marriage can be revoked. This form of talaq(talaq-e-Ahsan) is the most approved kind of talaq among Muslims in India.

In talaq-e-Hasan, Hasan means good. In this kind of talaq, the husband announces talaq three timers but not in one go. This type of talaq takes place in three successive goes in three months. The first talaq takes place in the 1st month, the second talaq takes place in the 2nd month and the third talaq takes place in the 3rd month. If the procedure of talaq is interrupted and marriage is reconsidered in the third month, then the talaq can be revoked.

In both kinds of talaq (talaq-e-Ahsan and talaq-e-Hasan) both spouses have ample scope where they both can discuss and decide that what should be done with their marriage.

The second form of talaq is known as talaq-e-Biddat. Biddat means innovation. Talaq-e-biddat is also known as triple talaq. In this method, a husband can announce talaq in one go by saying talaq three times and the marriage will be dissolved. as per this method, spouses get no time to discuss or arbitrate about the marriage. If a husband says talaq three times either by WhatsApp, e-mail, or notice, then the marriage would be considered as dissolved. Talaq-e-biddat is a bad form of talaq.

Talaq-e-biddat is considered as bad because the chance of arbitration is absent, and spouses do not get time to decide and talk about the matter which can be resolved. Whatever happens in talaq-e-biddat happens in one go in the heat of the moment. That’s why talaq-e-biddat is a disapproved kind of talaq.

India is not the only country that thinks that talaq-e-biddat is a bad kind of talaq. There are many other pre-dominant countries that think the same about talaq-e-biddat.

In comparison to other countries, India is a country where women have to suffer a lot and have many problems because of the religion, tradition, and social beliefs of people. This article will talk about a kind of talaq in the Muslim community which is known as talaq-E-biddat. In simple words, talaq-E-biddat is an instant talaq, in which the husband has to say “talaq” three times in one go. that is the reason why talaq-E-biddat is known as instant triple talaq. This practice of talaq-E-biddat is discriminatory against Muslim women. Muslim women are the ones who had to suffer because of this practice. As only Muslim men are allowed to perform this practice of instant triple talaq, Muslim women cannot perform this practice.

As we all know that our Indian constitution has provided the people of India the fundamental rights from which one of the fundamental rights talk about the right to equality where there should be equality between men and women.

In comparison, if we see around us. In each personal law, things are different in reality. Discrimination still exists in personal law, where men get more value, respect, rights in comparison to women. The worst situation of women can be seen in Muslim personal law. Women of Muslim law do not have those many privileges which are given to Hindu women or women of any other personal law.

From starting triple talaq has been a controversial practice among people of India, especially Muslims. Many people are in favour of triple talaq, many people are not in favor of triple talaq. Many people are still confused that what should a person choose, religion or law as our Indian constitution also provide us ‘right to religion as a fundamental right where people have the right to follow any religion of their choice no one can stop them or force them to leave or follow any religion. But in the case of triple talaq, people took this practice of triple talaq as a religious and political practice, not as a right that is given to each and every individual of India by the Indian constitution.

Not taking triple talaq as a serious issue is so wrong, people are ignoring the condition of Muslim women as well as the government has not adopted a uniform civil code that can stop the suffering of Muslim women. The Uniform civil code is given in article 44 of the Indian constitution. It is important for India to adopt a uniform civil code as it would lead to positive democracy as well as progress. Our government is not adopting a uniform civil code as India is a secular country. As secularism allows people to follow any tradition and religion of their choice this practice has been followed for so long. The practice of talaq-E-biddat has been followed by Muslims for the past 1400 years. This practice has been mainly disapproved by Muslim scholars. Because of this practice of triple talaq Muslim women must suffer domestic violence, torture, mental depression. This suffering is not recent from the past 1400 years women are facing these kinds of problems and torture.

In Islamic law, this practice has been infamous, which allowed Muslim men to divorce his wife anytime, anywhere. He had to say talaq thrice in one go any time anywhere even from WhatsApp, e-mail, etc. there is no liability on a husband to tell the reason for divorce and this divorce could take place even if the wife is not there at that time of pronouncement. Divorce becomes irrevocable once the ‘iddat’ period is observed by the wife to know whether she is pregnant or not. There are two kinds of talaq (a)after each talaq (out of three) spouses gets a chance to solve things and another one is when the word ‘talaq’ is said three times in one go and divorce took place.

Muslims have the second largest population in India after Hindus. They are ruled under the Muslim personal application act 1937. The main question which comes to mind is why only Muslim men have the right to triple talaq and why not Muslim women. Why Muslim personal application act 1937 is biased? Muslim women do have an advocacy group which is named Bhartiya Muslim Mahila Andolan which is against the practice of triple talaq is not a sanction in Quran. This group of Bhartiya Muslim Mahila Andolan conducted a survey, from that survey it was found that around 90% of Muslim women were against triple talaq.

As per article 25 of the Indian constitution people of India have the right to follow any religion. In case of religion is interfering in fundamental rights or any practice is interfering in the equality right, that practice should be immediately considered unconstitutional and illegal. There is a famous case of shah Bano who filed a petition against her husband who gave her triple talaq after 15 years of marriage. As per her 15 years of relation can not be over by three words through the letter.

Shah Bano V. Union Of India[i]

Facts

Shah Bano and Rijvan Ahamad were married for 15 years. In 2016, Rijvan Ahamad gave triple talaq which is known as talaq-e-biddat to Shah Bano. Shah Bano filed a writ petition against this form of talaq in court. She challenged three practices of Muslim law:

1. Nikah halal – If any of the spouses either husband or wife wants to marry again after divorce, so they can not marry directly just after the divorce. In this first wife must perform second marriage and then she needs to divorce her second husband with whom she performed the second marriage. Then only she can marry her first husband.

2. Polygamy – In this practice Muslim men are allowed to have more than one wife. He can marry another woman even if he is already married.

3. Instant triple talaq(talaq-e-biddat) – This is the kind of practice where any of the spouses can perform triple talaq. Where any of them can dissolve the marriage by just saying the word ‘talaq’ three times and then the marriage will automatically be dissolved.

Then in February 2017, the 5 judges’ constitutional bench took place. Those judges were chief justice Jagdish Khehar, justice Abdul Nazeer, justice Kurian Joseph, Justice Rohinton Nariman, justice V.V Lalit.

The petitioner was shah Bano, and the respondents were, Rizwan Ahmed, the union of India, the ministry of law and justice, the ministry of women and children development, the ministry of minority affairs, the national commission for women, and all India Muslim personal law board.

The Supreme Court asked for a written statement from both the parties on which all Muslim personal law boards said that all these three practices are part of the Muslim religion, the supreme court should not interfere in religious matters.

Issues

After receiving written statements from all parties, the supreme court raised two issues:

1. Is instant triple talaq is an essential religious practice or not?

2. The second issue was instant triple talaq violates fundamental rights or not?

Judgement

It was asked if any religious practice is an essential part of any community, the supreme court can or cannot interfere. In the Sabrimala issue also court said banning women is not an essential religious practice. Hence the supreme court banned that practice. The same is in the case of instant triple talaq. Instant triple talaq is not an essential religious practice. Hence supreme court can interfere in it and can modify and change it.

Chief justice Jagdish Khehar and Justice Abdul Nazeer said, the practice of triple talaq is part of Muslim personal law and as per article 25 of the Indian constitution, every citizen has the right to religion where they are free to follow any religion of their choice, and this fundamental right is protected by our Indian constitution. That is why the supreme court cannot and should not interfere in this case. They also said that the judiciary cannot decide that instant triple talaq should be banned or not. This can be only decided by parliament. Judiciary ordered that they are pausing this practice for 6 months and in these 6 months parliament need to decide that instant triple talaq should be banned or not.

Justice Rohinton Nariman and justice v.v Lalit said, all the laws need to be consistent with the fundamental rights, either they were of past, future, or present. They agreed as per article 13 of the Indian constitution, courts cannot interfere in personal laws, but instant triple talaq was not challenged in article 13 of the Indian constitution. This practice of instant triple talaq is challenged in Articles 14, 15, 20 and 25 of the Indian constitution. As per Article 14 of the Indian constitution, the supreme court have the power to announce it unconstitutional when anything violates fundamental rights. Instant triple talaq is arbitrary as it violates women’s rights that’s why the supreme court has the power to announce the practice of triple talaq as unconstitutional through article 14 of the Indian constitution.

Justice Kurian Joseph said instant triple talaq practice is un-Islamic. As it does not have the element like time for discussion and does not have an element like talaq-e-sunat.

Decision

By majority, as justice Rohinton Nariman, justice V.V Lalit and justice Kurian Joseph had the same decision, the supreme court declared the practice of instant triple talaq illegal and unconstitutional and asked the centre to make a law on this.

Legislation

1. Muslim women (protection of rights of marriages) bill 2017[ii]

A bill was formulated by the government of India and was introduced in parliament when the government noticed that even after the supreme court declared triple talaq unconstitutional, then also around 100 cases of instant triple talaq were there. Because of such activities, the Muslim women (protection of rights and marriage) bill 2017 was passed by Lok Sabah which makes triple talaq void and Illegal even if it is given orally, in writing, or by email/ in any electronic form. This bill also talked about the punishment for a husband of 3 years if he tries to give his wife instant triple talaq. But this bill was called arbitrary and was opposed by MPs, BJD, AIML, AIMIM, AIADMK. But this bill was supported by congress law minister Ravi Shankar prasad. All the 19 amendments related to triple talaq were moved to Lok Sabah, but all these 19 amendments were rejected. Because of the rejection, this bill was not successful.

2. The Muslim women (protection of rights of marriage) ordinance 2018[iii]

An ordinance was issued by the government after realizing that the cases of instant triple talaq are continuing to increase even after the supreme court’s judgment. That ordinance was made to make the practice of instant triple talaq void and illegal. The provision which was there in ordinance were-

i. Triple talaq is a cognizable offense, punishment for this practice is fine plus 3 years of imprisonment.

ii. Only the wife and her blood relatives can file a complaint in the police station.

iii. This offense is non-bailable. Bail can only be granted after the permission of the wife.

iv. The mother will get custody of the child.

v. Courts/magistrates will decide the maintenance which needs to be given to the wife.

President declared the ordinance on 19 September 2018.

3. The Muslim women (protection of right on marriage) bill, 2018[iv]

A fresh bill was introduced by the government of India in Lok Sabha on 17th December 2018 instead of the ordinance which was made by the president on 19th September 2018. This bill was introduced because the ordinance has to expire on 22nd January 2019. Provisions which were there in the bill were-

i. Written, oral or electronic form, any form of triple talaq, and all the kinds of declaration to be illegal and void.

ii. It is a non-bailable offense, only a magistrate can grant a bill, which also can be granted after the permission of the wife. Then the only bail can be granted.

iii. The wife and blood relatives of a wife are allowed to file complaints against the husband committing the cognizable offense of instant triple talaq.

iv. It is a cognizable offense with three years of imprisonment and a fine would be decided by the magistrate.

v. Allowance to wife would be decided by the magistrate.

vi. Manner of custody of the child to mother would be decided by the magistrate.

vii. Legal proceedings against the husband can be stopped by the magistrate after the request made by the wife.

Lok Sabha passed this bill on 27th December 2018, but in Rajya Sabha, it remained stuck.

4. Muslim women (protection of rights on marriage) ordinance 2019

As the ordinance of 2018 was to be expired on 22nd January 2019 and the bill could not pass. The new ordinance was made by the government on 10th January 2018, on 12th January, this ordinance got approved by the president of India ram Nath Kovind.

5. Muslim women (protection of right on marriage act) 2019[v]

Muslim women (protection of rights on marriage act) 2019 removed ordinance and became law on 31st July 2019.

Conclusion

Hiding the evil face of any religion is not culture, no country should accept it. When we talk about equality of the rights and privileges between men and women, in every religion thing gets blurred in case of what is right and what is wrong. For the dignity of women, mothers, wives, sisters, and daughters women empowerment is important for revolution, and it is important to make it clear that it is more than just a movement. Ignoring the rights of women, putting them down in comparison to men have been in continuation for the past many decades. The banning of triple talaq is a huge step for a country like India, communities of Muslims, Muslim women it would be a big step in the world itself. People should not say like ’it is wrong for the law to interfere in religious matter, ‘it is the religion that everyone must follow’ instead of this they should start thinking about why people’s voices is been overheard, why people have been ignored, why people are not allowed to have what they deserve and must-have of which they have right’.

People must start asking the right questions instead of wrong and biased questions. People ignore the criticism which is made on the tradition. They think that ‘it is a culture, our forefather didn’t question them so we must also not, if our forefather agreed to it, it must be right. Instead of taking things in this way people must start questioning tradition which violates women’s rights as a gender inequality, which is so wrong. Why people do not understand that their forefathers did not say anything because they were not brave enough to question the practice. This is so wrong that women had to fight for what they have the right as well as what they deserve. If people will take small steps it would lead to many further achievements ahead.

[i] 1985 (1) SCALE 767; 1985 (3) SCR 844; 1985 (2) SCC 556; AIR 1985 SC 945

[ii] Bill No. 247 of 2017

[iii] [Ordinance No. 07 of 2018]

[iv] Bill no. 181 of 2018

[v] [Act No. 20 of 2019]

This article has been written by Daksha Varshney, Law student at School of Law Bennett University, Greater Noida.

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