Triple Talaq

TRIPLE TALAQ A research prepared submitted in partial fulfilment of the course Family law – I for obtaining the degree BBA LLB (Hons.) doing the academic year 2019-2020.

Submitted by RAHUL KUMAR 2032 Submitted to Ms. Pooja Shrivastava Assistant Professor

August 2019 Chanakya National Law University, Patna Mithapur Nayaynagar, Patna

Table of Contents INTRODUCTION ...................................................................................................................................... 1 OBJECTIVE OF THE STUDY ................................................................................................................... 2 HYPOTHESIS ....................................................................................................................................... 2 RESEARCH METHODOLOGY ............................................................................................................... 3 SOURCE OF DATA ............................................................................................................................... 3 LIMITATIONS OF STUDY ..................................................................................................................... 4 SCOPE OF STUDY ................................................................................................................................ 4 HISTORICAL BACKGROUND .................................................................................................................... 4 DIVORCE TALAQ .................................................................................................................................. 5 TALAQ-UL-SUNNAT ............................................................................................................................ 5 TALAQ HASAN PROPER ...................................................................................................................... 6 TALAQ-UL-BIDDAT ............................................................................................................................. 7 THE PRACTICE OF TRIPLE TALAQ............................................................................................................ 7 TRIPLE TALAQ ..................................................................................................................................... 7 NATURE OF TRIPLE TALAQ ............................................................................................................... 10 THE IMPACT OF CHANGE IN SOCIETY UPON THE PRACTICE OF TRIPLE TALAQ............................... 11 JUDICIAL APPROACH ............................................................................................................................ 15 CONSTITUTIONAL VALIDITY ................................................................................................................. 18 SOLUTION ............................................................................................................................................. 22 CONCLUSION AND SUGGESTION ......................................................................................................... 23 BIBLIOGRAPHY...................................................................................................................................... 25

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DECLARATION I hereby declare that the project entitled “TRIPLE TALAQ” submitted by me at CHANAKYA NATIONAL LAW UNIVERSITY is a record of bona fide project work carried out by me under the guidance of our mentor Ms. Pooja Srivastava. I further declare that the work reported in this project has not been submitted and will not be submitted, either in part or in full, for the award of any other degree or diploma in this university or in any other university.

---------------RAHUL KUMAR ROLL NO. 2032 3RD SEMESTER 2ND YEAR

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ACKNOWLEDGEMENT It is a fact that any research work prepared, compiled or formulated in isolation is inexplicable to an extent. This research work, although prepared by me, is a culmination of efforts of a lot of people who remained in veil, who gave their intense support and helped me in the completion of this project. Firstly, I am very grateful to my mentor Ms. POOJA SRIVASTAVA, without the kind support and help of whom the completion of this project was a herculean task for me. She donated her valuable time from her busy schedule to help me to complete this project. I would like to thank her for her valuable suggestions towards the making of this project. I am highly indebted to my parents and friends for their kind co-operation and encouragement which helped me in completion of this project. I am also thankful to the library staff of my college which assisted me in acquiring the sources necessary for the compilation of my project. Last but not the least, I would like to thank the Almighty who kept me mentally strong and in good health to concentrate on my project and to complete it in time. I thank all of them ! RAHUL KUMAR ROLL NO. 2032 3RD SEMESTER 2ND YEAR

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INTRODUCTION Talaq types can be classified into talaq al-sunnah, which is thought to be in accordance with Muhammad's teachings, and talaq al-bid'ah, which are viewed as an innovation deviations from it. Triple talaq, also known as instant divorce, is a form of Islamic divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence. It allows any Muslim man to legally divorce his wife by uttering the word talaq three times in oral, written or, even, in electronic form. The use and status of triple talaq in India has been a subject of controversy and debate. Those questioning the practice have raised issues of justice, gender equality, human rights and secularism. The debate has involved the Government of India and the Supreme Court of India, and is connected to the debate about a uniform civil code (Article 44) in India. The entire debate around the Triple Talaq Bill, based on the petition filed by Sharaya Bano and several other petitions as also the suo moto PIL by the Supreme Court, needs to be viewed under the scanner of intersectionality. Under this PIL the apex court has hinted that certain Islamic Personal Laws practice gender discrimination, thus violating the rights of women as enshrined in the Indian Constitution. From the outside, the entire Triple Talaq issue has translated into a debate of culture versus modernity. To limit the experiences within reductive binaries is absurd as the Muslim woman is very much a product of the very power relations that subordinates her. The author deals with the question of Triple Talaq in the light of the recent petition filed in the Supreme Court for declaring such talaq invalid. It takes into consideration the fall-out of such a bill, if it were to come to pass, the existing laws which negate the necessity of a new law and the opinions of legal experts and progressive Islamic scholars on the same. In 2017, the Supreme Court of India comprising of a five judge constitution bench in Shayara Bano case passed a landmark judgment in the history of triple talaq by banning the Muslim practice of Triple Talaq in India by declaring it as an unconstitutional and struck it down by 3:2 majority. Shayara Bano (wife) challenged the ‘talaq nama’ delivered to her by husband pronounced talaq, talaq, talaq in presence of two witnesses. She challenged the same before the apex court to declare the divorce as “void ab initio” relying upon the claim which violates her fundamental rights. The apex court set aside instant talaq as a "manifestly arbitrary" practice. It also said, "Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place."

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OBJECTIVE OF THE STUDY

This paper is prepared to empathise the constitutionality of the practice of triple taqak. Through the research, the author has intended to study the following about the given subject: 1. 2. 3. 4.

The history and basis of triple talaq How time and society has made the practice of triple talaq obsolete. The unconstitutionality of the practice of triple talaq. the cases and interpretation of the arguments given.

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HYPOTHESIS Researcher hypotheses’ that o The triple talaq is unconstitutional and opposed to public welfare. o The landmark judgement given my Supreme Court is right and will provide support to muslim female.

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RESEARCH MTHODOLOGY A Research Methodology defines the purpose of the research, how it proceeds, how to measure progress and what constitute success with respect to the objectives determined for carrying out the research study. The research design is given as below – Exploratory Research: This kind of research has the primary objective of development of insights into the problem. It studies the main area where the problem lies. The project involves doctrinal and non-doctrinal forms of sources. As far as the doctrinal sources are concerned, they primarily include the web, books and newspaper articles. The research methodology for the present study has been adapted to reflect these realties and helps reach the logical conclusion in an objective and scientific manner.

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SOURCE OF THE DATA 1) Primary data – Data which is collected through direct interviews and by raising questionnaires in this case to a few car dealers. 2) Secondary data –

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Secondary data that is already available and published. Various internet sites, newspaper, magazines were searched in order to find information useful for completion of this project.

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LIMITATIONS OF THE STUDY

The researcher being a student doesn’t have the source or access to resources beyond his capacity. He however, has collected the data from book, internet sites, newspaper, magazines and interviews. Some of the limitations researcher has faced or is bound to face are: 1. Money : one of the most influential limitation for researcher, for researcher is a student. 2. Time period: the allocated period of time is not sufficient to collect and analyse the data for more accurate judgement of the subject. 3. Research Area: the provided place for conducting the data collection is very small and the scope for collection of information is narrow. 

SCOPE OF STUDY For the requirement of degree of B.A.LLB(Hons.) of academic session 2018-2023

TENTATIVE CHAPERIZATION

1. HISTORICAL BACKGROUND To understand the nature and concept of divorce in Islamic law, a brief account of its historical background is necessary. Among all the nations of antiquity, the power of divorce was regarded as a natural corollary to marital obligation. Among the pre-Islamic Arab the power of divorce possessed by the husband was unlimited and was frequently exercised without any regard to the marital obligations1. They could divorce their wives at any time, for any reason or even without any reason. They could give divorce and also revoke the same as many times as they preferred. They could, moreover, if they were so inclined, swear that they would have no intercourse with their wives, though still living with them. They could arbitrarily accuse their wives of adultery, dismiss them, and leave them with such notoriety as would deter other suitors; while they themselves would go exempt from any formal responsibility of maintenance.

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Furqan Ahmed, Triple Talaq: An Analytical Study with Emphasis on Socio-Legal Aspect 13 (Regency Publication, New Delhi, 1994).

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In pre-Islamic Arabia, divorce was used as an instrument of torture. These social and moral ills and injustices engaged the attention of the prophet of Islam. Fully conscious of the evils flowing from divorce, he framed the laws of marriage and divorce in order to remove these evils.

Divorce Talaq The Prophet, who is head of the community, affirmed that all the things that have been permitted under the law, the worst are divorce. He treats it as an evil and suggests everyone to avoid it as far as possible. But in some situations, it becomes a necessity where living together is not possible. It is better to separate from the spouse rather than to be in a surrounding full of agony and abhorrence. But the basis of divorce in Islam is the inability of the spouse to live together for a genuine reason due to living together is impossible. There are provisions guaranteed under the Islamic law to get divorce from both the side of husband and wife. The term ‘talaq’ means repudiation or simply divorce. But in Islam, the husband only has the right to get divorce through the method of talaq and the wife by the judicial orders from the court.

Talaq-ul-Sunnat (Revocable Talaq) Talaq-ul-Sunnat is regarded to be the approved form of Talaq. It is called as Talaq- ul-Sunnat because it is based on the Prophet’s tradition (Sunna). As a matter of fact, the Prophet always considered Talaq as an evil. If at all this evil was to take place, the best formula was one in which there was possibility of revoking the effects of this evil. With this idea in mind, the Prophet recommended only revocable Talaq, because in this form, the evil consequences of Talaq do not become final at once. There is possibility of compromise and reconciliation between husband and wife. Talaq-ul-Sunnat is also called as Talaq-ul-raje. Only this kind of Talaq was in practice during the life of the Prophet. This mode of Talaq is recognised both by Sunnis as well as by the Shias. Talaq-ul-Sunnat may be pronounced either in Ahsan or in the Hasan form . Talaq Ahsan Most Proper This is the most proper form of repudiation of marriage. The reason is twofold: First, there is possibility of revoking the pronouncement before expiry of the Iddat period2. Secondly, the evil words of Talaq are to be uttered only once. Being an evil, it is preferred that these words are not repeated. In the Ahsan Talaq there is a single

2

https://wwjmrd.com/upload/triple-talaq-unconstitutional-and-arbitrary_1517053898.pdf

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declaration during the period of purity followed by no revocation by husband for three successive period of purity. In this form, the following formalities are required: a) The husband has to make a single pronouncement of Talaq during the Tuhr of the wife. Tuhr is the period of wife’s parity i.e. a period between two menstruations. As such, the period of Tuhr is the period during which cohabitation is possible. But if a woman is not subjected to menstruation, either because of old age or due to pregnancy, a Talaq against her may be pronounced any time. b) After this single pronouncement, the wife is to observe an Iddat of three monthly courses. If she is pregnant at the time of pronouncement the Iddat is, till the delivery of the child. During the period of Iddat there should be no revocation of Talaq by the husband. Revocation may be express or implied. Cohabitation with the wife is an implied revocation of Talaq. If the cohabitation takes place even once during this period, the Talaq is revoked and it is presumed that the husband has reconciled with the wife. When the period of Iddat expires and the husband does not revoke the Talaq either expressly or through consummation, the Talaq becomes Irrevocable and final. It may be noted that the characteristic feature of the Ahsan form of Talaq is a single pronouncement followed by no revocation during the period of three month’s Iddat. Therefore, where a husband makes any declaration in anger, but realising his mistake afterwards, wants to cancel it, there is sufficient time for him to do so. Single pronouncement of the civil words of Talaq and sufficient opportunity to the spouses for reconciliation, are the two reasons for calling this form as the ‘most proper’ form of Talaq .

Talaq Hasan Proper This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there is a provision for revocation. But it is not the best mode because evil words of Talaq are to be pronounced three times in the successive Tuhrs. The formalities required under this form are as under3 (a) The husband has to make a single declaration of Talaq in a period of ‘Tuhr. (b) In the next Tuhr, there is another single pronouncement for the second time. It is significant to note that the first and second pronouncements may be revoked by the husband. If he does

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https://wwjmrd.com/upload/triple-talaq-unconstitutional-and-arbitrary_1517053898.pdf

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so, either expressly or by resuming conjugal relations, the words of Talaq become ineffective as if no Talaq was made at all. (c) But, if no revocation is made after the first or second declaration then lastly the husband is to make the third pronouncement in the third period of purity (Tuhr). As soon as this third declaration is made, the Talaq becomes irrevocable and the marriage dissolves and the wife has to observe the required Iddat. It may be noted that the important feature of Talaq Hasan is its revocability before the third pronouncement and its irrevocability after the third. In order to make an effective Talaq, the words must be uttered three times in three consecutive period of purity.

2. THE PRACTICE OF TRIPLE TALAQ Triple Talaq was neither recognized nor sanctioned by Quran and The Holy Prophet. It was not in practice during the span of first caliph but the second caliph brought this concept of instant divorce. It came into existence to meet some emergency situation and was not made a law permanently. Unfortunately, the hanafis jurists on the strength of this administrative order of second caliph declared this form of divorce as valid . Triple-Talaq is also known as Talaq-UlBiddat which gives a right to a man that whenever he thinks fit, he may give divorce to his wife anytime and which becomes void and irrevocable. This not only violates Muslim women rights but this also makes them inferior in the eyes of society as well as in the eyes of men. Since what does triple-Talaq conclude that it is on the whims of men due to which most of them think that they are superior to Muslim women. It is true that every religious practice is sacred, and no one has right to interfere in these religious practices. It is being said by some of the Muslims that triple talaq comes under the ambit of religion but on the other hand some of the Muslims contradict the same. Now a days this practice is being misused by many Muslim mans which severely affects their wives life and we don’t agree that religion can take away the basic human rights and natural rights of any human being which this practice does and the most barbaric thing about this type of divorce is that it will be completed even in the absence of wife and even if the wife does not have any knowledge of such divorce. And it will become void and irrevocable. In addition to this, the most interesting fact about this is that it is being used by men but consequences are faced by women. According to the Hanafis when Talaq-ul- Biddat is pronounced, the wife will become alienated from the husband and he cannot remarry her. She becomes ‘Haram’ (totally prohibited) for him. Neither can he take her back nor can he go 9|Page

for fresh nikah with her. He can go for nikah with her only after paying a penalty of ‘Halala’ meaningly, she has to marry another man and her marriage must consummate and then that person divorces her on account of marital conflict or she becomes a widow. Muslims are India's largest minority community with a population of 155 million and their marriages and divorces are governed by the Muslim personal law, ostensibly based on the Sharia. The invidious procedure of triple Talaq is confined to the Sunnis alone, not only in India, but around the world. And the most of the population of Indian Muslims is Sunnis. Concerns Regarding the Triple Talaq Most of the Muslim men treat their wives as mere possession, they think that they can marry them anytime as well as get rid of them by just uttering talaq thrice. But it is to be noted that women are being deserted by their husband who give them instant talaq without any justification and reasonable cause. It is somewhat clear that it is a patriarchal society as the divorce is possible by any medium like telephone, telegram, letter, text message, social media etc. In the case Rashid Ahmed v. Anisa Khatoon , man declared the triple talaq in the presence of his witness though in the absence of his wife. The talaqnama was executed and the decree for divorce was allowed. This concept of triple talaq has made the husband very dominant and wife very fragile. It was rightly stated by Justice Krishna Iyer that “It is a fallacy that Muslim men enjoys under Muslim-Quranic law.” a) Furqan Ahmad, “Triple talaq: An Analytical Study with Emphasis on Socio-Legal Aspects”, Regency Publications, 1994 The book authored by Furqan Ahmad takes the reader through the background of dissolution of marriage under Islamic law including the background of triple talaq and how this mode of divorce came into practice. The author further discusses the various modes of dissolution of marriage and critically appraises each mode of divorce as mentioned under the Shariat law. While discussing the subject of triple talaq the author has considered the baneful effects of such mode of divorce on the society especially the divorced woman. The author emphasizes on the socio-legal aspects of the much debated mode of dissolution of marriage i.e. triple talaq. In general parlance, the word “talaq” means repudiation or severance of marriage. It is an Arabic word which means- I divorce you. In the case of Moonshee Buzloor Rahim v. Laleefutoon Nisa4, the court observed that only Muslim men have the option to exercise the

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(1861) 8 MIA 397

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act of talaq, at any time without giving any plausible cause or explanation. He has the arbitrary power to use the tool of divorce as against the wife. Under Islamic law, a wife is divorced if the husband pronounce the word talaq three times. The two different sects of the Muslim community i.e. Shias and Sunnis have different rules and procedure to engage in talaq. However, talaq has the following three steps which are common to both the sects. They are:1) Initiation- the process of divorce is initiated with the husband pronouncing the word “talaq”. A talaq may be affected either orally or by a written document known as talaqnama. 2) Reconciliation- under the Muslim law jurisprudence, divorce is affected when the husband pronounces the word talaq thrice. But the couple is supposed to make an attempt to reconcile during the waiting period in between first pronouncement and second pronouncement with the help of mediators and family members. If during this period the husband engages in sexual intercourse with the wife, the divorce is negated. 3) Completion- the procedure of talaq is completed with the third pronouncement and the divorce becomes irrevocable. Thereafter, the wife becomes haram for the husband5. Triple talaq or Talaq-ul-biddat is an innovated mode of divorce not sanctioned by the Holy Quran which is considered as sinful nevertheless is legal and practiced by majority of Muslim population in India. The concept of triple talaq is nowhere mentioned or provided in Quran which is the ultimate basis of the Shariat law, due to which there is a lack of clear cut definitions. However, Aqil Ahmed has attempted to define triple talaq as – “A divorce which is pronounced thrice in one sitting when the wife is in the state of purity (tuhr), i.e., when man says: "I divorce you, I divorce you, I divorce you.”6 This mode of talaq is prevalent among Sunni Muslims only which comprises of 70% to 80% of the Muslim population in India. The Hanafi School of the Sunni sect indulge in such mode of divorce in spite of knowing it to be sinful. Once a divorce is effectuated, the wife becomes

5

Furqan Ahmad, “Triple talaq: An Analytical Study With Emphasis On Socio-Legal Aspects”, visit https://books.google.co.in/books 6

Ibrahim B. Syed, “Triple talaq”, Islamic Research Foundation International, Inc., visit www.irfi.org/articles/articles_151_200/triple__talaq.htm

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haram for the husband and he is prohibited to undergo a fresh nikah with her until and unless halala is performed. He can perform nikah with her only if she marries another person and the marriage is consummated and thereafter the person willingly divorces her. Triple talaq is the most common mode of divorce prevalent in India.

Nature of Triple talaq a) Shams Pirzada, Triple talaq in the light of Quran and Sunnah. This article discusses the proper and improper mode of divorce as laid down under the Islamic law. The author emphasizes on the fact that Quran insists on all possible efforts for reconciliation before a divorce is given. A genuine attempt must be made by both the parties in order to reconcile but if all attempts fail, only then the parties can seek for divorce. Also talaq must be pronounced when the wife is in the period of ‘tuhr’. On the other hand, any divorce which is done hastily and without any attempt to reconcile is regarded as improper and is detested. Triple talaq or talaq-ul-biddah is a prohibited mode of divorce which has no provision for reconciliation instead once declared becomes irrevocable and ends the sanctity of the conjugal life i.e. nikah. The article puts forth the blatant misuse of this mode of divorce by the Muslim men and points out that triple talaq is like a hanging sword on the head of Muslim women as the mere utterance of the word talaq thrice dissolves the marriage with no possible chance to reconcile except if the woman undergoes halala. The article points out the physical and mental distress of a woman who undergoes halala. Talaq-e-Biddat means ‘talaq of the wrong innovation’. The Shias do not recognize Triple talaq or Talaq-ul-biddat. This mode of divorce is prevalent only among the Sunni Muslims. Under Sunni School (Hanafi sect), a talaq pronounced under compulsion or in a state of intoxication or to please or satisfy any family member or in anger, rage or jest is considered valid. Triple talaq further has two forms: Three declarations at one time, and one irrevocable declaration. 1. Triple Declaration- It consists of three pronouncements in a single tuhr either in one sentence (“I divorce thee thrice”) or in three separate sentences (“I divorce thee, I divorce thee, I divorce thee”). Talaq becomes irrevocable immediately it is pronounced, irrespective of the Iddat. As the talaq becomes irrevocable at once, it is called Talaq-i-bain i.e., irrevocable talaq. 12 | P a g e

This form of divorce is condemned. It is considered heretical (irreligious) because of its irrevocability. It is “good in law though bad in theology”. 2. Single Irrevocable Declaration- It consists of a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage e.g. “I divorce thee irrevocably” or “I had divorced thee in Talaq-ul-biddat or Talaq-i-bain”. Here the use of expression “bain” (irrevocable) manifests of itself the intention to affect an irrevocable divorce7

3. THE IMPACT OF CHANGE IN SOCIETY UPON THE PRACTICE OF TRIPLE TALAQ Vrinda Narain, Women's rights and the accommodation of "difference:" Muslim Women in India, 8 S. Cal. Rev. L. & Women's Stud. 43 1998-1999 Vrinda Narain, in her article has tried to put forth the miserable plight of Muslim women who are discriminated and shunned by the caprices of personal laws. Their interests are marginalized by the conservative leaders who are adamant not to reform the personal laws in order to bring equality which is an integral feature of democracy as provided under the Indian Constitution. The article highlights the recent practices of talaq being uttered thrice over telephone, e-mail or thru letters and text messages. This innovative mode of divorce is being in widespread use by the Muslim men without giving any plausible explanation to the wives. As a result the divorced wives are left destitute. This article also outlines the struggle a Muslim woman has to face in order to claim maintenance after divorce especially after the enactment of the Muslim Women's (Protection of Rights on Divorce) Act, 1986. The article emphasizes on a need for implementation of the Uniform Civil Code which can by balancing the interests of all the personal laws and by removing the traditional patriarchal biasness, provide a platform for the realization of various fundamental rights especially the right to equality as envisaged under the Constitution of India. Nothing has been more derogatory in discriminating weaker sex in any religion than pronouncing triple talaq which is practiced by Muslim men in a few countries including India. By uttering the word talaq thrice a Muslim man can unilaterally divorce his wife without giving

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Dr. A.K. Jain, “Law Guide for LL.M Entrance”, Ascent Publications, 5th Edition, page 67

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any monetary compensation or taking any responsibility for even their children. Religiously, Muslims in India are governed by a pre-independence era Shariat law i.e. Muslim Personal Law Application (MPLA) Act, 1937 which remained silent on this unilateral mode of divorce. Over the years the instrument of triple talaq has given sweeping powers to Muslim men to divorce their wives even on flimsy grounds to enable them to satisfy vested desires. Since MPLA has not been codified, it is open to any kind of interpretation by local clergy depending on their whims, which makes the circumstance all the more difficult to deal with8. As a matter of fact, triple talaq has emanated as a socioreligious bane to the Muslim womenfolk in India due to its inherent devastating effect which are as follows:-

(i)

Extent of victimization

While triple talaq is used as a shotgun to ruin the married life of a woman, a Muslim man easily escapes from his responsibility of taking economic liability whatsoever, consequent to imposing such type of divorce in India. Even the wife cannot return to her husband soon after receiving the triple talaq message due to its irrevocable nature. Thus, Muslim women are highly vulnerable to this whimsical mode of unilateral divorce. The suffering becomes more aggravating and painful for the vast majority of illiterate/ less educated women who are dependent along with kids on their husband's earnings only. Clearly, they are directly victimized because, no provision was made by any Law, Act or, Court of India to protect these women from the blatant discrimination, economic deprivation and social stigma inflicted on them through triple talaq. It may not be out of place to mention here that India has the second largest Muslim population in the world. After having the hurricane experience of government interference at the initiative of Late Rajiv Gandhi, the then Prime Minister of India in the Shah Banu case9 and its political aftermath no political party has the guts to raise the issue in an appropriate forum for fear of political backlash and probability of losing potential Muslim vote banks 10.

Zakia Soman and Noorjehan Niaz, “Why Triple talaq Needs to Be Abolished”, 17/06/2016, visit http://thewire.in/43481/why-triple-talaq-needs-to-be-abolished/ 9 Mohd. Ahmed Khan v. Shah Bano Begum And Ors, 1985 SCR (3) 844 10 Anusha Rizvi, “The Indian Media’s Focus on Shayara Bano Betrays an Ignorance of Important Precedents”, 11/06/2016, visit http://thewire.in/42276/the-indian-medias-focus-onshayara-bano-betrays-an-ignorance-ofimportant-precedents/ 8

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(ii) Deed of Community Leaders

The helpless status of Muslim women got prominently exposed in the amazing case of Nagma Biwi vs. State of Orissa. Begum Nagma was pronounced triple talaq by her husband in a drunken state. Mistake next day, he immediately called her back for reunification and she also desired to return to her husband. But this time, their community leaders stood as a wall between their marriage bondage. They forcibly sent Nagma Bibi and her three children to her father's house with the suggestion to marry somebody else in expectation of getting a triple talaq from the second one. She could remarry her first husband if she could manage another triple talaq from her second husband. This system of targeted discrimination towards women is called by them as Halala in Islam.

(iii) Quranic Stand The Holy Quran prescribed equal right for both men and women without any sort of unethical or intentional discrimination to either of them. Neither The Prophet nor The Holy Quran approves this unilateral, disgraceful and irreversible form of triple talaq which is synonymously known as Talaq-ul-biddat. Before thinking of divorce the couple should explore all remedial procedures like involving parental sides from both partners for an honourable compromise, involving Qazi for dispute resolutions, initial separation for three to six months and then taking the opinion of husband and wife etc. After exhausting all routes if the separation appears unavoidable for the interest of both partners, divorce may be enforced as a last sort after having the concurrence of separating partners just like the concurrence for marriage during Nikah. Therefore, triple talaq or talaq-ul-biddat in its present version of women oriented discriminatory and unilateral form is in contravention of the spirit of The Holy Quran and hence, un-Islamic. (iv) Scope for remedy in the Personal Law

Although not in conformity with the spirit of The Holy Quran, a Muslim man can enjoy the unlimited power of going for marriage after marriage just by breaking old marriages one by one through the privilege of triple talaq without taking the consent of his wife, if he intends to 15 | P a g e

do so. On the contrary, a Muslim woman cannot have the similar liberty like her husband as she cannot break the clutch of marriage without the consent of her husband. Therefore, she is considered like a commodity of her husband in the Islamic society of India. On the other hand, it is not only a woman, sometimes a Muslim man also suffers when triple talaq uttered by him in an inebriated condition or, heat of the moment during a family squabble and he temporarily loses his self-control, may force him to loose wife as talaq-u-biddat is irreversible that snatches the scope of marital reunion even after the things cool down. Thus it snatches the liberty from both of them, which goes against their actual honest and cohesive intentions. So a liberal, honest and impartial interpretation of this critical aspect is required to cure the malady in Personal Law11.

(v) Need of Uniform Civil Code

Such injustice provokes the need of Article 44 of the Indian Constitution which proclaims for Uniform Civil Code. In the multi-religious Indian society where the rights of people from almost all religions are protected including that of religious minorities however small they may be e.g. Parsis comprising a population of merely sixty thousand then, a massive Muslim population spreading across every nooks and corner in India cannot be left in lurch for the betterment of society. Even though categorized as the religious minority, Muslim population counts second i.e. next to Hindu majority here and therefore, may not be left in seclusion for being governed by Moulavis.

(vi) Inconsistency of Muslim Personal Law

Muslim Personal Law Application Act, 1937 was passed in British era while Indian Constitution was framed in Independent India. With its inherent unilateral nature talaq-ulbiddat mars the essence of Article 21 that ensures, irrespective of sex, religion, caste, creed, the right to life and personal liberty which are considered essential for healthy development of a unit of 11

Danial Latifi v. Union of India, AIR (2001)7 SCC 74

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Indian society. The obsolete law falls outside the ambit of the Article 13 of Indian Constitution due to its inherent incompatibility and resultant inconsistency. Therefore, the point of imposing any part of Muslim Personal Law Application Act, 1937 on any section of Indian society logically proves to be untenable and hence may be considered as null and void.

4. JUDICIAL

APPROACH

TOWARDS

TRIPLE

TALAQ

UNDER MUSLIM LAW In the case of Rahmtullah v. State of UP, Hon’ble Justice Tilhari of the Allahabad High Court observed that; “talaq-ul-bIddat, that is giving an irrevocable talaq divorce at once or at one sitting or by pronouncing it in a tuhr once in an irrevocable form, without allowing the period of waiting for reconciliation or without allowing the will of Allah to bring about reunion, by removing difference or cause of difference and helping the two in solving their differences, runs counter to the mandate of the Holy Quran and has been regarded as by all under Islam-Sunnat, to be sinful.” In the case of Yousuf Rawther v. Sowramma, Justice Krishna Iyer held that the triple Talaq is against the spirit of Holy Quran and that power of divorce is in the hands of the Muslim men. It is the misinterpretation which has led to the practice of the custom of triple Talaq12.

Triple Talaq is a Unilateral form of Divorce In the case of Mst. Zohara Khatoon v. Mohd. Ibrahim, the Hon’ble Supreme Court noted that, “there can be no doubt that under the Mohammedan law the commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognized by law. A divorce given unilaterally by the husband is especially peculiar to Mohammedan law. In no other law has the husband got a unilateral right to divorce wife by a simple declaration”

12

https://blog.ipleaders.in/triple-talaq/

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The Triple Talaq in this form not only makes Muslim women victims of arbitrary and whimsical decisions of their husbands, but being unilateral in nature, it also robs them of the liberty to choose the form of divorce they want.

Triple Talaq is unlawful In Qur’an commentary of well-known author Ibn Kathir, it is commented as follows “Pronouncing Three Divorces at the same Time is Unlawful. The last Ayah we mentioned was used as evidence to prove that it is not allowed to pronounce three divorces at one time. What further proves this ruling is that Mahmud bin Labid has stated as An-Nasar recorded – that Allah’s Messenger was told about a man who pronounced three divorces on his wife at one time, so the Prophet stood up while angry and said “The Book of Allah is being made the subject of jest while I am still amongst you?” A man then stood up and said, “Should I kill that man, Messenger of Allah?” In the recent case of Smt. Beena and Another v. the State of UP & others, Justice Suneet Kumar of Hon’ble Allahabad High Court held that; “The instant divorce (Triple Talaq) though has been deprecated and not followed by all sects of Muslim community in the country, however, is a cruel and the most demeaning form of divorce practiced by the Muslim community at large. Women cannot remain at the mercy of the patriarchal setup held under the clutches of sundry clerics having their own interpretation of the holy Quran. Personal laws, of any community, cannot claim supremacy over the rights granted to the individuals by the Constitution.”

Conditions of a Valid Triple Talaq In the case of Sayid Rashid Ahmed v. Anisa Khatun, Justice Baharul Islam observed that, “Reasonability as an essential for Talaq; Reconciliation attempts by the elders or the wellwishers of the family to be of utmost importance before commencement of Talaq” and “ it may be effected” if the said effects fails. An attempt at reconciliation by two relations one each of the parties, is an essential condition precedent to talaq.

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Talaq should be preceded by the reconciliation attempts. In the case of Rukia Khatun v. Abdul Khalique Laskar, it was held that Talaq was only to be pronounced after failed attempts between the husband and the wife, after each appointed an arbitrator to solve the dispute. Without reconciliation, the commencement of divorce is held to be in contempt with the saying of the Holy Quran. This observation was upheld by the Justice Badar Durrez Ahmad of the Delhi High Court in the case of Masroor Ahmad v. State (N.C.T of Delhi) & Another, and he further held that; “Reconciliation before the procedure of the divorce is of utmost importance and is in concurrence with the Holy Quran. It is of utmost necessity to follow the procedure of divorce as written in Quran and proper reasoning to be given before the commencement of the Divorce”

There Must Be A Reasonable Cause The Hon’ble Supreme Court in the case of Shamim Ara v. State of UP, held that the correct law of divorce as ordained by Holy Quran is that Talak must be for reasonable cause; and it must be preceded by an attempt of reconciliation between the husband and the wife by two arbitrators. Therefore, the factum of divorce is required to be proved by the husband including the condition precedent there. The Kerala High Court in the case of Mohammed Haneefa v. Pathummal Beevi, denounced the practice of Triple Talaq and declared it as the “sufferings of monstrosity for Muslim wives”. The correct law of Talaq as ordained by the Holy Quran is that Talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters– one from the wife’s family and the other from the husband’s; if the attempts fail, Talaq may be effected.

Triple Talaq must be Preceded by Process of Conciliation Furthermore, in the case of Dilshad Begum Ahmedkhan Pathan v. Ahmad khan Hanif Khan Pathan & Anrs, the Bombay High Court held that mere pronouncement of Talaq by the husband or merely declaring his intention or his acts of having pronounced Talaq is not sufficient and does not meet the requirements of law. In every such exercise of right to Talaq

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the husband is required to satisfy the precondition of arbitration for reconciliation and reasons for talaq. In the case of Kunhi mohammed v. Ayisha kutty, the division Bench of the Kerala High Court after reviewing the earlier precedents and the authorities of Muslim law held that; “Following the decision of the Supreme Court Shamim Ara (supra) and decision of the Division Bench in Ummer Farooque (supra), it is evident that compliance with the mandate of Ayat 35 of Sura IV that two arbiters must be appointed and an attempt for reconciliation by them must precede the divorce is an essential, non-negotiable and unavoidable pre-requisite.”

5. The constitutional validity of the practice : SHAYARA BANO CASE In the Holy Book Quran, nikah means ‘Misaqan Ghaliza’ that means a strong bond and it explains how and with whom one can enter into this strong bond and this bond cannot be dissolved without proper reason and method. Triple talaq has not only resulted in atrocity but also infringed the fundamental rights guaranteed to the citizens of India. Article 14 is the right to equality in which no person is above the law, as it is supreme. Every person is equal in the eyes of law irrespective of gender or religion. We have seen that, in triple talaq all right of divorce is bestowed upon the men only. As the marriage is undertaken by the free consent of both the parties, dissolution of such marriage also should be by the free consent of the parties, only then equality exists. But in triple talaq the husband can pronounce the divorce without even the knowledge of the wife, which in itself is infringing the Muslim wife’s right to equality. The Muslim wife have to go to the Qazi and have to prove the atrocities committed by her husband in order to get a divorce where a husband can pronounce talaq without any reasonable logic. Triple talaq has conferred unlimited and absolute power to give instant divorce to his wife, even when there is no just or reasonable cause. In one of the case, a woman was given triple talaq as she did not wake up when her husband returned late from work. In this case, she was not at all aware of the fact that she had been divorced; it was later informed by her motherin-law about the scenario. This shows that how the doctrine of triple talaq has been misused so as to satisfy the male ego and to suppress women without any just cause. Article 15(1) state

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that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.” Article 15(1) does not permit any kind of discrimination; whereas triple talaq violates it. Triple talaq is an detestable practice in which all the rights are conferred upon the men and women are considered mere as puppets, whom they can control as they desire. The Muslim women tend to suffer triple penalty because of their gender. Article 21 is the most sacred fundamental right conferred by the law of laws. It speaks about the right to life and personal liberty, which has been violated by the doctrine of triple talaq. It encroaches upon the basic dignity that a woman holds under article 21. The Quran encourages people to respect the women and not to abandon her without any just reason or for satisfying the male ego. If a spouse gives divorce to his spouse without any logical and rational cause it will not only violate the Quran but also the supreme law of the land. It violates the basic rights of a woman as she does not get to know why she has been given divorce and also is deprived of her rights on her children and her matrimonial house. She becomes dejected and helpless after such divorce. The most important contention which makes a triple talaq violative of article 21 is this concept is totally arbitrary and woman has no say in this process which is totally unfair and unconstitutional . Article 25(1) provides freedom of religion where every citizen if given the right to choose and practice and freely any religion of his or her own choice. It also states that no one should interfere with it. Muslim marriages and divorces are governed by Muslim personal laws and them solely responsible for the infringement of fundamental rights of Muslim women. In Quran, it is nowhere mentioned that talaq-ul-biddat that is triple talaq should be practiced to dissolve the marriage. Marriage and successions are not a part of religion and with the changing time the law also needs to change. This idea was supported by Hon’ble court in Prakash v. Phulavati and it was stated that there can be no discrimination on the grounds of religion. Therefore, it is clearly visible from the above instances that triple talaq is violative of constitution. It violates the basic structure of the constitution which provides justice to both men and women equally but it is not justifiable as, it is discriminatory to women and this practice is totally arbitrary in nature which makes it violative of fundamental rights guaranteed under constitution. In the recent judgement in Sharyara Bano v. Union of India, the triple talaq has been held unconstitutional and illegal in eyes of law. It was the need of the hour, as mentioned above as it violates the above articles of the constitution. Judicial Decisions on Triple Talaq Mohd. Ahmed Khan vs Shah Bano Begum and Others This was one of the landmark judgements in the legal history, in 1985. This case explained that what should be included under the decree of the Supreme Court. In this case the issue was that Ms. Bano claimed the maintenance under the Cr.P.C rather than 21 | P a g e

through the personal laws, after getting divorced from her husband Mohd. Ahmed Khan. According to the personal laws, she could only claim maintenance only during the period of iddat, but as in the Indian laws, she had to be given maintenance all through her life, with some exceptions too, under which she didn’t came. As the plaintiff and the defendant were Muslims, were to be governed by the Muslim Personal Law. Since the petition was filed under the Cr.P.C, the district court, the High Court and the Supreme Court passed their judgements, favouring Ms Shah Bano. This judgement was criticized by the AIMPLB, as they claimed that decree of Personal laws was beyond the jurisdiction of the courts. The Shah Bano Case received various public stances. Government then had passed a legislation, termed as ‘The Muslim Women (Protection of Rights on Divorce), 1986’, and aimed to overturn the judgement of the SC. According to this legislation, Muslim women were entitled to a ‘fair and just’ amount of money within the ‘iddat’ period, beyond which, the husband was to have no liability. Ahmedabad Women Action Group (AWAG) v. Union of India According to Muslim laws it allows Muslim men to have four marriages, along with the right to divorce, under the concept of Talaq, whereby, the husband possess the right to divorce by pronouncing the term ‘Talaq‘, without judicial methods, and this may happen without her consent. The PIL was filed in this case addressing both these issues. In the light of these arguments, the court was of the opinion that India and Indians have been governed by personal laws, regardless of the time period. It was of the view that interference by the court would lead to several undesirable results, as the verdict of personal laws was beyond the jurisdiction of the courts. The petition was dismissed. Danial Latifi and another v. Union of India After the judgement of Shah Bano’s case, there was a disorder in the Muslim personal law. The parliament passed and enforced The Muslim Women Act, 1986, which provided that under section 3(1)(a), a divorced woman is entitled to reasonable and fair provisions, and maintenance within the ‘iddat’ period. One of the council, Danial Latifi confronted the above act, claiming that it was unconstitutional, and in violation of Article 14 and 21. The petitioner, in his argument said that that the Act is unconstitutional and has the potential of overpowering the Muslim women, and weakens the secular character. It is reasonless to deprive the Muslim women of the applicability of section 125 of Cr.P.C and present act is in violation of article 14 and 21. To this, the respondent said that personal laws are a legitimate basis for discrimination and therefore does not violate article 14 of the Constitution. The Court thereby favored the respondents. Shamim Ara. v. State of U.P. The petitioner married the respondent in 1948, in accordance with the Muslim personal law, and had four sons. The wife filed an application in the court, under Sec. 125 of the Cr.P.C, claiming that her husband had abandoned her and there was cruelty by him. The family court rejected 22 | P a g e

her appeal, on the grounds that she had already been divorced. However, a sum of Rs. 150/was granted as maintenance for one son, till he attained majority. The petitioner denied her divorce. The SC was of the view that the mere plea of a Talaq would not validate the same. The Quranic process of obtaining a Talaq needs to be fulfilled. Shayara Bano v. Union of India and others This case has brought enthusiasm in everyone’s mind as it has challenged the concept of ‘instantaneous triple Talaq’ and not the concept of ‘triple Talaq’. The PIL was filed by Ms Shayara Bano. This petition has been greatly been supported and believed to have given a chance to those who have suffered. The PIL was initiated by Ms Shayara Bano, a resident of Uttarakhand, who was constantly abused by her husband and eventually divorced by way of Triple Talaq at one go. Her difficulty was heard by the SC of India. India is a secular country and its citizens deserve to be happy, content and should always have the right to equality and justice. The Hon’ble Supreme Court has chosen to allow the rights World Wide Journal of Multidisciplinary Research and Development of those who truly deserve it, is commendable and a positive step towards the injustice that women are subjected to. The bench of the Supreme Court has declared the judgement that the triple talaq has been held unconstitutional and violative of various articles in the Indian Constitution. Islamic Countries Can Ban Triple Talaq Also There are more than 20 Islamic countries that have banned this inhuman practice of triple talaq including neigh bouring countries like Pakistan, Bangladesh, Sri Lanka, etc. Egypt was the first ever country to declare triple talaq as invalid and it provides 90 days procedure for divorce. In 2006, Sri Lanka amended its Marriage and Divorce Act, 1951 that does not grant validity to the concept of triple talaq. As stated, the law requires a husband wishing to divorce his wife to give notice of his intention to a Qazi (Islamic judge), who should attempt a reconciliation between the couples over the next 30 days. In the case of disagreement after the devised period, the husband can give talaq to his wife only in the presence of the Qazi and two witnesses. Many people who understand and study Muslim Law rates the Lankan law as the most ideal legislation on triple talaq. The abolition of triple talaq in Pakistan took place in 1951 and they also have a system of validating a talaq after a period of 90 days only and not before that. Tunisia and Algeria both adopted Tunisian code of personal status and banned instant talaq. In 1959, Iraq contrary to most Arab countries has banned the triple talaq . In spite of all above countries who have a great number of muslim population residing in their countries has banned the archaic and intolerable practice of talaq-ul-biddat then why can’t we abolish this in human practice. 23 | P a g e

6. SOLUTION

The time has come for major steps to be taken to bring about reform and change in the Muslim Personal Law in India. In order to accomplish these following steps must be taken:CODIFICATION OF THE MUSLIM PERSONAL LAW: The process of codification of Muslim Law is an imperative and now must be seriously undertaken by a group of legal experts, liberal ulema and scholars in the field. Gender-just laws must be the common denominator.Alongside Muslim women, Muslim men’s organizations must push for change. ROLE OF THE STATE: Parliament should step in with measures not for a Hindu code or a Muslim Code but a secular code, drawn from basic principles of personal freedom, human rights and justice in the country. Strict measures must be taken against if the Muslim Personal Law (Shariat) Application Act violates democratic rights guaranteed to the individuals by the Constitution.

ENCOURAGING THE IDEA OF A UNIFORM CIVIL CODE: It will help the cause of national integration by removing the contradictions based on ideologies and traditions. It will also help in eradicating many evils, unjust and irrational practices prevalent across the communities, and will also strengthen the unity and integrity of the country. These norms have to be observed in all human transactions in any civilized society. INTRODUCTION OF GENDER JUST PERSONAL LAWS: Since most personal laws reflect the hierarchical notions of society and thereby accord secondary status to women. So what we need are gender just personal laws. The gender just code in turn has to be the same for all the communities and hence, it will be uniform. Gender justice has to be the basis of uniformity; blind uniformity may turn out to be most unjust for women.

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PRIORITISATION OF GENDER EQUALITY: Priority must be given to the equality between men and women in terms of their fundamental rights over conservative interpretations of religious scholars. This can be done by saying a big no to triple talaq and polygamy. The personal law question needs to be understood in the context of patriarchy and laws that accord secondary status to women need to be reformed. SUPPORTING ALL REFORM MOVEMENTS THAT CHALLENGE PATRIARCHY: Every citizen should join hands with the government to eradicate the injustice against women which will lead to the overall growth and development of entire nation. We have to try to lead traditions out of darkness into light and not allow them to lead us into darkness. Policies on women’s empowerment exist at the national, state, and local (Panchayats) levels in many sectors, including health, education, economic opportunities, gender-based violence, and political participation. However, there are significant gaps between policy advancements and actual practice at the community level. So the main effort of the state and all the law-making bodies should be to fill this gap between ideology and practice of law making. They should try to abandon all those laws (like Triple Talaq, polygamy etc.) which are against constitutional ethos. The Constitution guarantees minority communities the right to freely practice and propagate their religion, own property and establish places of worship and run educational institutions. This constitutional protection draws strength from a framework of liberal democracy. Moreover, in a secular democracy religious laws cannot trump the constitutional right to equality. Given that Hindu personal laws have evolved to empower Hindu women, there’s no reason why Muslim women have to suffer from patriarchal religious practices. Triple talaq and polygamy fail the test of Indian constitutionality. Thus, the rights of women should be respected across nations which are denied through power structures and social customs like Triple Talaq and polygamy. The women should not be deprived of their basic dignity of life which they deserve. Introduction of a secular code drawn from the principles of personal freedom, human rights and justice will not only strengthen secularism but will reinforce women empowerment13.

13

http://ijcrt.org/papers/IJCRT1704301.pdf

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7. CONCLUSION CRITICISM AND SUGGESTIONS Marriage is a very sacred relationship and it should be dissolved in very sacrosanct manner irrespective of religion but this corrupt practice of triple talaq violates the basic human rights which are conferred upon the women citizens of India. This practice makes Muslim men superior to the Muslim women. The after effect of divorce is another vulnerability which a woman has to suffer; they become economically poor and socially backward. The society does not accept and they are taken for granted even by their own parents. They are taunted and treated roughly as if it is they themselves who are responsible for the divorce. It is been noted that in the Muslim community, marriage is a contract between a male and a female and it is completed only when both the parties pronounce ‘Qubool hai’ thrice, but then during divorce, it is only the husband who can pronounce ‘talaq’ thrice. This explicitly violates Article 14 that every person should be treated equally. Muslim women have to suffer because they are Muslim and certain rights have been taken away from them. By this, it is evident that there is a violation of Article 15. The most supreme right Article 21 is also violated as Muslim women are not given the right to choose about their life by themselves. Article 25 is violated as the religious practices under the Muslim community are not protected under this article. The Supreme Court once again have gave us hope, and have made us believe in our legal system, by declaring triple talaq to be unconstitutional and illegal and we hope that B.J.P Government have successfully passed the Muslim Women (Protection of Rights on Marriage) Bill 2017 in Rajya Sabha also. It gives Muslim women a new hope to lives her life with dignity and respect. It is the right time that the state should promote awareness regarding this issue so as to uplift the status of Muslim women in the country14.

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https://wwjmrd.com/upload/triple-talaq-unconstitutional-and-arbitrary_1517053898.pdf

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7. BIBLIOGRAPHY Links: -

1. supremecourtofindia.nic.in/supremecourt/2016/.../6716_2016_Order_22-Aug-2017. 2. w wp-content/uploads/.../BMMA-WS-filed-on-4.4.2017.pdf ww.lawyerscollective.org/ 3. indianexpress.com › India 4. www.livemint.com › Opinion › Columns 5. https://en.wikipedia.org/wiki/All_India_Muslim_Personal_Law_Board

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