Nithya LR; 1st year B.A. LL. B student at K.L.E. Law College
Research questions
Is the triple talaq an essential practice done by Muslim men?
Whether this breaches the right to equality, right to freedom, right to religion?
Introduction on Triple Talaq
Triple Talaq which is also known as Talaq-e-Biddat is a practice done by Muslim men that allows them to divorce their wife immediately by process of saying the word “Talaq” three times. In this case the wife’s consent is not considered. The word Talaq in Islam means divorce, which denotes the instantaneous termination of marriage. This practice of triple talaq gave the Muslim husbands a special and privileged status over the women. This word can be used by them as it is legalised in the Muslim Personal law (Shariat) Act, 1937. If the marriage should be reconciled it can only be done through process of remarriage which is called as nikah halala. If the couple choose to re-marry, wife first marries someone else, and only after her marriage with other person has been dissolved (either through ‘talaq’ - divorce, or death), can the couple remarry. When the husband initiates the divorce, it can be either done by Talaq-E Sunnat which comprises of Talaq-E-Ahsan and Talaq-e-Hasan (are the officialy recognised forms of Talaq by the Shias and Sunnis as well) or by Talaq-E Biddat (triple talaq) and this Talaq is contested with some of the Islamic scholars considering it to be invalid and prohibited.
Punishment for triple talaq
The punishment for the triple talaq is three years of imprisonment. It is a cognisable and non bailable offence.
Declaration of Talaq to be void and illegal under these clauses:
Clause 3 in Chapter 2 of the Act clarifies that, “any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”.
Clause 4 in Chapter 2 states that “any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.”
Protection for women has been stated under:
Clause 7 Chapter 3,
(a) an offence punishable under this Act shall be cognizable, if information relating to the commission of the offence is given to an officer in charge of a police station by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage;
(b) an offence punishable under this Act shall be compoundable, at the instance of the married Muslim woman upon whom talaq is pronounced with the permission of the Magistrate, on such terms and conditions as he may determine;
(c) no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person.
A case study
Shayara Bano, a Muslim girl, was married to Rizwan Ahmed for 15 years. But in the year 2016 without any reason, he divorced her. Rizwan Ahmad, unfold, that the ‘nikah’ (marriage) between the petitioner and the respondent was solemnized on 11.04.2001, as per ‘Shariat’, at Allahabad. After their marriage the husband started demanding additional dowry which was inappropriate. He demanded Rs.5,00,000/-. On 09.04.2015, the Respondent attempted to kill the Petitioner by administering medicines. Thereafter on 10.04.2015 the Respondent called the parents of the Petitioner to Moradabad to take their daughter. Yet Shayara Bano tried to get adjusted to all these things but when she found out about his 2nd marriage, she told her husband to divorce him as it is against the laws to marry another woman when a person is already married. At this moment without any valid reasons, he used the Talaq-e-Biddat (triple talaq (triple talaq) on Shayara Bano. (If there must be a second marriage done there should be a correct constitutional reason.) Because of all these reason’s Shayara Bano filed a writ petition challenging the constitutionality of Talaq-e-Biddat along with practices of polygamy and nikah halala as they infringe upon the fundamental rights of women (Article 14, 15, 21, 25). Bhartiya Muslim Mahila Andolan supported her. The court accepted the petition filed by Shayara Bano and formed a five-judge bench in 2017. The petitioner has sought a declaration, that the ‘talaq-e-biddat’ pronounced by her husband on 10.10.2015 be declared as void ab initio. On May 11th, 2017 the first hearing was held and on August 22nd, 2017 the decision was announced.
The five-judge bench declared the decision in favour of Shayara Bano. It was declared that the practice of triple talaq was unconstitutional by the judges. There was a 3:2 majority and it was declared by the constitution to take measures to prevent the abuse against women. It is also opined by the court that many of the Muslim countries have declared the practice of triple talaq unconstitutional. In order to persuade this Court, to accept the petitioners’ prayer – to declare the practice of ‘talaq-e-biddat’ as unacceptable in law, the Court’s attention was invited to the fact, that the present controversy needed a similar intervention, as had been adopted for doing away with similar patriarchal, irregular and sinful practices amongst Hindus. In this behalf, reference was made to the practices of ‘Sati’, ‘Devadasi’, and ‘Polygamy’.
The practice of triple talaq was progressively acknowledged by the courts as an arbitrary practice that violates fundamental rights. In the case of Shamim Ara v. State of U.P., the Supreme Court invalidated triple talaq for the first time.
Subsequently, it was determined in Rukia Khatun v. Abdul Khalique Laskar that there is no reference of Talaq-e-Biddat in any holy book or text, and it was decided that any Talaq-Nama that does not involve any attempts at reconciliation cannot be considered a talaq.
The High Court of Bombay, in the case of Dagdu Pathan v. Rahimbi Pathan placed / imposed a restriction on the practice of triple talaq and stated that this should not be used unjustifiably or as weapon to harm or avenge the wife as this would constitute a ‘haram’ under the Islamic law.
Protection of rights
Article 14 talks about “Protection of life and liberty and equality before law - No person shall be deprived of his life or liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the law within the territory of India.”
Article 15 talks about
(1) “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restrictions, or condition.
It was submitted, the Constitution postulates through Article 15, a clear restraint on discrimination, on the ground of sex. It was submitted, that ‘talaq-e-biddat’ violated the aforesaid fundamental right, which postulates equality between men and women. Learned counsel relied on the decisions of this Court in Kesavananda Bharati v. State of Kerala, and Minerva Mills Ltd. v. Union of India to contend, that it was the duty of courts to intervene in case of violation of any individual’s fundamental right, and to render justice. It was also submitted, that the rights of the female partner in a matrimonial alliance amongst Muslims, had resulted in severe gender discrimination, which amounted to violating their human rights under Article 21 of the Constitution.
Article 25 highlighted, that it was also necessary to note, that Article 25(1) provides that “all” persons were “equally” entitled to the freedom of conscience, and the right to profess, practice and propagate religion. This, should be understood to mean, that the rights conferred by this article were equally available to women, and were not confined to men alone. Therefore, it was contended, that any patriarchal or one-sided interpretation of religion (or a practice of religion), ought not to be countenanced. It was emphasised that it was necessary to draw a line between religion per se, and religious practices.
This triple talaq law was passed in favour of Muslim women through the bill “Protection of Rights on marriage, 2019”. This bill was passed by the Indian parliament on July 30,2019 as law, to make this as a criminal offence.
How is the usage of triple talaq prevented?
As analysed earlier, the Muslim women (Protection of rights of marriage) bill 2017, was brought in by the Indian government in the lower house and said that issuing a divorce on triple talaq could end them for imprisonment upto three years. This came into effect because of the prolonged and continuous fight by Muslim women groups. Bharatiya Muslim Mahila Andolan (Indian Muslim Women’s Movement), was party to the legal battle and has chronicled more than 100 cases of triple talaq in India.
Conclusion
We live in a very diverse country. Our country is sovereign and secular. Since our country is diverse, there are various religions practices by various people. Each religion almost has its own rules and regulations to make the living standards easier for people. The rules which they have created should be respected by the people but it should neither go out of the laws that govern people’s rights and morality like Freedom of Religion, Gender Equality, Right to Equality, Right to Life etc. When it comes to the matter of triple talaq it becomes unconstitutional as it violates rights of the women. This can be seen in Shayara Bano case. So, this law becomes unconstitutional as it gives the Muslim men a special right over women. When women are undergoing inhumanity and inequality, why should they remain silent on the law of triple talaq? Some women did not receive any compensation or alimony on the divorce. Some of the Muslim countries such as Saudi Arabia, Turkiye, Qatar have banned the use of triple talaq. Since triple talaq is violating the fundamental rights of women under article 14, 15, 21, 25 it is been considered as unconstitutional.
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