Triple talaq in India

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Triple Talaq, also known as talaq-e-biddat, instant divorce[1] and talaq-e-mughallazah (irrevocable divorce),[2] is a form of Islamic divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence.[3][4] It allows any Muslim man to legally divorce his wife by stating the word talaq (the Arabic word for "divorce") three times in oral, written, or more recently, 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.[5] On 22 August 2017, the Indian Supreme Court deemed instant triple talaq (talaq-e-biddah) unconstitutional.[6][7][8] Three of the five judges in the panel concurred that the practice of triple talaq is unconstitutional.[9] The remaining two declared the practice to be constitutional while simultaneously asking the government to ban the practice by enacting a law.[10]

The Modi Government formulated a bill called The Muslim Women (Protection of Rights on Marriage) Bill, 2017 and introduced it in the Parliament which was passed on 28 December 2017 by the Lok Sabha.[11] The bill makes instant triple talaq (talaq-e-biddah) in any form — spoken, in writing or by electronic means such as email, SMS and WhatsApp illegal and void, with up to three years in jail for the husband. MPs from RJD, AIMIM, BJD, AIADMK and IUML[clarification needed] opposed the bill, calling it arbitrary in nature and a faulty proposal, while Congress supported the Bill tabled in the Lok Sabha by law minister Ravi Shankar Prasad.[12][13]. The bill faced stiff resistance in the Rajya Sabha. Several Opposition lawmakers called for it to be sent to a select committee for close scrutiny. The bill was finally passed by Lok Sabha on 27th December 2018 with strong support.[14]

Practice[edit]

Triple talaq is a form of divorce that was practised in India, 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.[citation needed] The man did not need to cite any cause for the divorce and the wife need not have been present at the time of pronouncement.[citation needed] After a period of iddat, during which it was ascertained whether the wife is pregnant, the divorce became irrevocable.[15][16] In the recommended practice, a waiting period was required before each pronouncement of talaq, during which reconciliation was attempted. However, it had become common to make all three pronouncements in one sitting. While the practice was frowned upon, it was not prohibited.[17] A divorced woman could not remarry her divorced husband unless she first married another man, a practice called nikah halala. Until she remarried, she retained the custody of male toddlers and prepubescent female children. Beyond those restrictions, the children came under the guardianship of the father.[16]

Triple talaq is a 1,400 year-old practice among Sunni Muslims.[18] It is "manifestly arbitrary" and allows a man to "break down [a] marriage whimsically and capriciously”.[19]

Triple talaq as a practice is not mentioned in the Quran or Sharia law. It is also largely disapproved by Muslim legal scholars. Several Islamic countries, including Pakistan and Bangladesh, have banned it, although it is technically legal in Sunni Islamic jurisprudence. Triple talaq, in Islamic law, is based upon the belief that the husband has the right to reject or dismiss his wife with good grounds.[20][21]

The All India Muslim Personal Law Board (AIMPLB), a non-governmental organisation, had told the Supreme Court that women could also pronounce triple talaq, and could execute nikahnamas that stipulated conditions so that the husbands could not pronounce triple talaq.[22] According to AIMPLB, "Sharia grants right to divorce to husbands because men have greater power of decision-making." [23]

Background[edit]

Muslim family affairs in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937 (often called the "Muslim Personal Law"). It was one of the first acts to be passed after the Government of India Act, 1935 became operational, introducing provincial autonomy and a form of dyarchy at the federal level. It replaced the so-called "Anglo-Mohammedan Law" previously operating for Muslims, and became binding on all of India's Muslims.[24][25]

The shariat is open to interpretation by the ulama (class of Muslim legal scholars). The ulama of Hanafi Sunnis considered this form of divorce binding, provided the pronouncement was made in front of Muslim witnesses and later confirmed by a sharia court. However, the ulama of Ahl-i Hadith, Twelver and Musta'li persuasions did not regard it as proper. Scholar Aparna Rao states that, in 2003, there was an active debate among the ulama.[16]

In traditional Islamic jurisprudence, triple talaq is considered to be a particularly disapproved, but legally valid, form of divorce.[26] Changing social conditions around the world have led to increasing dissatisfaction with traditional Islamic law of divorce since the early 20th century and various reforms have been undertaken in different countries.[27] Contrary to practices adopted in most Muslim-majority countries, Muslim couples in India are not required to register their marriage with civil authorities.[28] Muslim marriages in India are considered to be a private matter, unless the couple decided to register their marriage under the Special Marriage Act of 1954.[28] Owing to these historical factors, the checks that have been placed on the husband's unilateral right of divorce by governments of other countries and the prohibition of triple talaq were not implemented in India.[28]

Opinions[edit]

Opposition[edit]

The practice faced opposition from Muslim women,[29] some of whom filed a public interest litigation in the Supreme Court against the practice, terming it "regressive".[30] The petitioners asked for section 2 of the Muslim Personal Law (Shariat) Application Act, 1937,[A] to be scrapped, describing it as being against Article 14 of the Constitution (equality before the law).[32]

On 13 May 2017, during the hearings before its final judgment, the Supreme Court described instant triple talaq as the "worst form of marriage dissolution". It noted that the custom is banned in the Muslim-majority countries of Saudi Arabia, Morocco, Afghanistan and Pakistan.[5][33] On 8 December 2016, the Allahabad High Court observed in a ruling that the practice of instant triple talaq was unconstitutional and violated the rights of Muslim women.[34][35]

In March 2017, over 1 million Indian Muslims, a majority of whom were women, signed a petition to end instant triple talaq. The petition was started by the Muslim Rashtriya Manch, an Islamic organisation affiliated to the right wing Hindu nationalist organisation Rashtriya Swayamsevak Sangh.[36] The petitioners against instant Triple talaq have given evidence showing how Instant Triple talaq is simply an innovation that does not have much to do with Quranic beliefs. This is supported by the interpretation of Quranic text by many Islamic scholars, historical evidence and legal precedent.[37]

On 10 May 2017, senior cleric Maulana Syed Shahabuddin Salafi Firdausi denounced triple talaq and nikah halala, calling them un-Islamic practices and instruments to oppress women.[38][39] The practice was also opposed by Hindu nationalists and Muslim liberals.[40] “Absence of consensus in Court makes it more difficult to forge consensus within communities. Glad that Court set aside a 'sinful' practice,” Congress leader Kapil Sibal tweeted. [41]

Support[edit]

Triple talaq has been supported by the All India Muslim Personal Law Board (AIMPLB), a non-governmental body that supervises the application of Muslim personal law. It propagates that the State does not have the right to intervene in religious matters. The AIMPLB's lawyer Mr Kapil Sibal had said that though instant talaq can be thought of as a sin by some, but that "setting the validity of customs and practices of a community is a slippery slope". [42] Kapil Sibal cited Article 371A to state that even the Constitution does intend to protect matters of practice, tradition and customs of communities.[43]

The All India Muslim Personal Law Board (AIMPLB) defends the practice.[30] In April 2017, citing a report prepared by Muslim Mahila Research Kendra in co-ordination with Shariah Committee for Women, AIMPLB has claimed that Muslims have a lower rate of divorce compared to other religious communities, countering the argument that Muslims have the highest number of divorce in the country due to the practice of triple talaq. It also claimed that it had received forms from 35 million Muslim women across the country, supporting shariat and triple talaq.[44][45][46]

AIMPLB issued a code of conduct in April 2017 regarding talaq in response to the controversy over the practice of triple talaq. It also warned that those who divorce for reasons not prescribed under shariat will be socially boycotted in addition to calling for boycott of those who use triple talaq recklessly and without justification.[47] In addition, it also stated that it should be delivered in three sittings with a gap of at least one month each.[48]

Judgement[edit]

The case was called Shayara Bano v. Union of India & Others. [49] The bench that heard the controversial Triple talaq case in 2017 was made up of multifaith members. The five judges from five different communities are Chief Justice JS Khehar, a Sikh, Justices Kurian Joseph a Christian, RF Nariman a Parsi, UU Lalit a Hindu and Abdul Nazeer a Muslim. [50]

The Supreme Court has to examine whether Triple talaq has the protection of the constitution—if this practice is safeguarded by Article 25(1) in the constitution that guarantees all the fundamental right to “profess, practice and propagate religion”. The Court wants to establish whether or not Triple talaq is an essential feature of Islamic belief and practice. [51]

In a 397-page ruling, though two judges upheld validity of Instant triple talaq (talaq-e-biddat), the three other judges held that it was unconstitutional, thus barring the practice by 3–2 majority.[52][51][53] One judge argued that instant triple talaq violated Islamic law.[52] The bench asked the central government to promulgate legislation within six months to govern marriage and divorce in the Muslim community.[54] The court said that until the government formulates a law regarding instant triple talaq, there would be an injunction against husbands pronouncing Instant triple talaq on their wives.[55][56]

According to The Economist, "Constitutional experts said [the judges] legal reasoning fell short of upholding personal rights over religious laws", whilst noting "The judgment did not ban other forms of Muslim divorce that favour men, only the instant kind."[40]

Legislation[edit]

The Muslim Women (Protection of Rights on Marriage) Bill, 2017[edit]

Bharatiya Janata Party formulated a bill and introduced it in the Parliament after 100 cases of instant triple talaq in the country since the Supreme Court judgement in August 2017.[57] On 28 December 2017, the Lok Sabha passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017.[58] The bill make instant triple talaq (talaq-e-biddah) in any form — spoken, in writing or by electronic means such as email, SMS and WhatsApp illegal and void, with up to three years in jail for the husband. MPs from RJD, AIMIM, BJD, AIADMK and AIML[clarification needed] opposed the bill, calling it arbitrary in nature and a faulty proposal, while Congress supported the Bill tabled in the Lok Sabha by law minister Ravi Shankar Prasad.[59][60] 19 amendments were moved in the Lok Sabha but all were rejected.

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018[edit]

On the grounds that practice of instant triple talaq was continuing unabated despite the SC striking it, the government issued an ordinance to make the practice illegal and void. [61].

The provisions of the ordinance are as follows [62]:

  • Instant triple talaq remains cognizable with a maximum of three years imprisonment and a fine.
  • Only complaint with the police by the wife or her blood relative will be recognised.
  • The offence is non-bailable i.e. only a Magistrate and not the police can grant bail. Bail can be granted only after hearing the wife.
  • Custody of the minor children from the marriage will go to mother.
  • Maintenance allowance to the wife is decided by the magistrate.

The ordinance was cleared by the President on 19th September 2018. [63].

The Muslim Women (Protection of Rights on Marriage) Bill, 2018[edit]

As the triple talaq ordinance of 2018 was to expire on 22nd January 2019, the government introduced fresh bill in the lok sabha on 17th December 2018 to replace the ordinance. [64][65]

The provisions of the bill are as follows: [66] [65]

  • All declaration of instant triple talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
  • Instant triple talaq remains cognisable offence with a maximum of three years imprisonment and a fine. The fine amount is decided by the magistrate.
  • The offence will be cognisable only if information relating to the offence is given by the wife or her blood relative.
  • The offence is non-bailable. But there is a provision that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the wife and if the Magistrate is satisfied with reasonable grounds for granting bail.
  • The wife is entitled to subsistence allowance. The amount is decided by the magistrate.
  • The wife is entitled to seek custody of her minor children from the marriage. The manner of custody will be determined by the Magistrate.
  • The offence may be compounded (i.e. stop legal proceedings and settle the dispute) by the Magistrate upon the request of the woman (against whom talaq has been declared).

The bill was passed by Lok Sabha on 27th December 2018 [67]. However, the bill remained stuck in the Rajya Sabha due to the opposition's demand to send it to a select committee. [68] [69]

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019[edit]

As the triple talaq ordinance of 2018 was to expire on 22nd January 2019 and also because the triple talaq bill of 2018 could not be passed in the parliament session, the government has repromulgated the ordinance on 10th January 2019. [70] [71] On 12th January 2019, the president of the India Ram Nath Kovind approved the ordinance of 2019. [72]

See also[edit]

Notes and references[edit]

Notes[edit]

  1. ^ Section 2 in The Muslim Personal Law (Shariat) Application Act, 1937 states about Application of Personal law to Muslims, "Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."[31]

References[edit]

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  17. ^ Choudhury, (Mis)Appropriated Liberty (2008), p. 95.
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