TRIPLE TALAQ: Unconstitutional?

Introduction-

A triple talaq is a form of divorce that was practised in Islam, whereby a Muslim man could legally divorce his wife by pronouncing talaq (the Arabic word for divorce) three times. The pronouncement could be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or social media.[1]

In Muslim law there are four ways for the dissolution for the marriage:

1. By Wife
2. Mutual consent
3. Judicial process
4. By Husband

TYPES OF TALAQ

Here we are going to discuss divorce given by husband in Muslim law:

1. Talaq-e-Sunnat- This is considered the most excellent form of divorce given by husband. In this, the word ‘Sunnat’ means tradition i.e. it is being followed from ages. Moreover, in this type of divorce, there is ample scope that husband and wife may reconsider the idea of living together again and give their marriage one chance again because there is a time period of 3 months which may help in arbitration and reconciliation. It is further divided into two types:
   • Talaq-e-Ahsan- The best form of divorce given by husband. In this husband announces Talaq one time but then he observes an iddat period of 90 days i.e. 3 months and if in these 3 months husband and wife agree to live together once again, they can but if the time period is over and still there no settlement then the divorce is final. It is considered best form because in this type there is ample time for arbitration and reconciliation
   • Talaq-e-Hasan- It is a normal form of divorce. In this husband announces Talaq three times in three consecutive months, again an iddat period of 90 days is observed but in every month a talaq is announced. But once the husband says talaq for the third time then divorce is final.

TALAQ-E-BIDDAT

2. Talaq-e-Biddat- Talaq-e-Biddat is also known as Triple Talaq. This is considered the worst form of talaq. The word ‘Biddat’ means innovation that means it is created by human in recent times only. It is considered worst because husband says Talaq three consecutive times and at that time only the divorce is finalised. In this, there is no time of arbitration and reconciliation which was the main idea of Muslim law so that husband and wife can think one again. In this husband sometimes in heat of moment gives divorce to his wife and no consideration is given to a wife. Talaq can be announced in any form by message, voice note or any another electronic form but the condition the information must be conveyed to wife.

SHAYARA BANO CASE

Under this form, of talaq, Shayara Bano was given divorce by her husband Rizwan Ahmed. In this case, the husband and wife were married for 15 years but suddenly after 15 years husband gives divorce to his wife using Talaq-e-Biddat. And soon after the divorce, the husband remarried another woman without giving any compensation to Sharyara and he was also not giving maintenance for his children. Seeing this Shayara Bano decided to file a petition in the Supreme Court.

In this case, Sharyara challenged three main practices of Muslim law:

1. Instant triple talaq
2. Nikah halala- This is another Muslim law practice in which if any women who want remarry her husband after divorce, firstly she has to marry another man and then get a divorce from him, then only she can remarry her old husband.
3. Polygamy- In Muslim law, a husband is allowed to have more than one wife.

When these practices were challenged in the Supreme Court of India then 5 judges Constitutional bench was set-up in February 2017. In this petitioner was Shayara Bano only whereas respondents were:

1. Rizwan Ahmed
2. Union of India
3. Ministry of Women & Child development
4. Ministry of Minority Affairs
5. National Commission for Women
6. All India Muslim Personal Law Board

SUPREME COURT VERDICT

All the organisations were asked to tell their views related to same then, All India Muslim Personal Law Board said that the above practices are part of Muslim personal law and it is out of the jurisdiction of Supreme Court because under Article-25 of the Indian Constitution everyone has right to follow any religion without being questioned by anyone.

In this regard the Supreme Court raised two issues:

1. Whether Instant Triple Talaq is an essential religious practice of Islam?
2. Whether the practice of Triple Talaq is violative of Fundamental Right?

The first issue was also raised in Sabarimala case but then it was realised that the practice on banning women is not essential religious practice was being followed in that case was violative of Article-14 and that’s why that practice was banned in the end.

Whereas in the Shayara Case also it was finally decided the practices that were being followed in this case were violative of Article-14, 15, 21, 25 moreover they were also violating the rights of women that’s why triple talaq was declared void by the Supreme Court. In 2017 an ordinance was passed saying that triple talaq is a crime and its punishment must be of 3 years and finally in 2018 the bill was signed by Lok Sabha, Rajya Sabha and President declaring triple talaq is a crime.

MUSLIM WOMEN ACT, 2019

And soon after this Muslim Women (Protection of Rights on Marriage) Act, 2019 was passed. The main features of this act are as following:

1. Offence and penalty- The act declares Triple Talaq, whether written or in the electronic form to void and illegal. The act makes triple talaq a cognizable offence and imprisonment up to 3 years plus fine.
2. Who can file a complaint- only the wife (married woman) against whom Talaq has been declared or any person related to her by blood or marriage can file the case on her behalf.
3. Bail: Bail may be granted by the Magistrate but only after hearing from and if the magistrate is convinced by the grounds then bail may be granted
4. Allowance & Custody: The woman is entitled to seek subsistence allowance to herself and her dependent children. Also, a woman is entitled to seek custody of her minor children.

Source:

[1] www.Wikipedia.org

This blog is written by Pragya Sharma, Amity University.

Some of her BLOGs,

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