Triple Talaq is the process of divorce under Sharia Law (Islamic law) where a husband can divorce his wife by pronouncing ‘Talaq’ three times. This is also called oral talaq. There are three types of divorce under Islamic law, namely, Ahsan, Hasan and Talaq-e-Biddat (triple talaq). While the former two are revocable, the last one is irrevocable. It is mainly prevalent among India’s Muslim communities that follow the Hanafi School of Islamic Law.

Under this law, wives cannot divorce husbands by the means of triple talaq. Women have to move a court for divorcing her husband under the Muslim Personal Law (Shariat) Application Act 1937. (This Act was passed to make provisions for the application of Shariat or Islamic personal law to Muslims in India.)

Arguments against triple talaq

  • It goes against the rights of equality and women’s empowerment. It propagates the dominance of men over women.
  • According to a study, 92% of Muslim women in India wanted the triple talaq to be banned.
  • It gave men the right to arbitrarily divorce their wives without any valid reason.
  • New-age technology has given birth to new modes of triple talaq such as through skype, text messages and email.
  • Many Islamic countries have outlawed this practice including Bangladesh, Pakistan and Indonesia. There is no reason for a democratic and secular India to continue this lopsided practice.
  • It goes against the constitutional principles of gender equality, secularism, right to life of dignity, etc. It goes against Article 14 (Right to Equality) and Article 15(1) which states that there shall be no discrimination against any citizen on the basis of gender, race, etc. and this kind of talaq is biased against the interests of women.
  • The constitution of the country says that it shall strive to bring a uniform civil code for the entire country. Doing away with triple talaq will definitely be a step closer to the constitution-makers’ dream of having a uniform civil code for all citizens.
  • However, the National Commission of Women says that this matter cannot be linked to uniform civil code. Nevertheless, it should be banned in order to protect the interests of Muslim women.
  • The Supreme Court has also declared that this practice is unconstitutional and not protected by Article 25 which regards the freedom of religion. Also in December 2016, the Allahabad High Court had said that no personal law board was above the constitution.
  • Experts also opine that only the essential or integral features and aspects of a religion are protected by the Constitution. Triple talaq was not an integral feature of Islam.

Challenges in banning triple talaq

  • Religious groups infer the banning of a traditional practice sanctified by Sharia as interfering in the religious aspects of minorities.
  • The courts should decide two things basically:

o          Whether personal law can be subject to the constitution or not

o          How to view the relationship between triple talaq and Muslim personal law

Past rulings

  • In the Shah Bano case in 1985, the SC granted Shah Bano, a 62-year old woman the right to alimony from her husband.
  • But in 1986, the government passed the Muslim Women (Protection of Rights on Divorce) Act which diluted the positive impact created by the Shah Bano case.
  • In 2001, in the Danial Latifi & Anr versus Union of India case, the SC upheld the validity of the Shah Bano judgement.
  • In August 2017, a five-judge bench of the SC declared the triple talaq as unconstitutional in a majority 3:2 judgement. This was the culmination of a petition filed by Shayara Bano, whose husband of 15 years had divorced her through a letter where he pronounced talaq three times, to declare the divorce as void.

The latest ruling is truly a watershed moment in women empowerment movement in India. The court has given progressive thoughts enshrined in the Constitution precedence over personal law in society.

There are three forms of talaq (divorce): Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable. Biddat — pronouncing divorce in one go by the husband — is irrevocable.

Biddat is considered ‘sinful,’ but permissible in Islamic law. An anecdote in this context is about two men meeting in Medinah. The first man asks whether the second has divorced his wife, to which the latter replies that he has done so a thousand times. The man was produced before Caliph Umar, who whipped him. After the lashing, Umar told the man “triple talaq will suffice you.”

The All India Muslim Personal Law Board (AIMPLB) holds that for the Hanafis, who make up more than 90% Sunnis in India, triple talaq is a matter of faith followed for 1,400 years.

How did it come about?

On October 16, 2015, the Supreme Court questioned whether Muslim personal law practices of marriage and divorce reduce women to mere chattels. In a rare move, it registered a suo motu public interest litigation (PIL) petition titled ‘In Re: Muslim Women’s Quest for Equality’ to examine whether arbitrary divorce, polygamy and nikah halala (where a Muslim divorcee marries a man and divorces him to get re-married to her former husband) violate women’s dignity.

The court rued missing the opportunity to address the question of gender inequality in both the Shah Bano and Danial Latifi cases. In the Shah Bano case, the court merely goaded the government to frame the Uniform Civil Code. In the Latifi case, it upheld the right of Muslim women to maintenance till re-marriage. Many Muslim women and organisations backed the court’s initiative. However, a Constitution Bench decided to confine itself to examining triple talaq and not polygamy and nikah halala.

Why does it matter?

This has been an issue of concern for over 65 years for Muslim women, who comprise approximately 8% of the population as per the 2011 census. “Muslim women want to have a life equal to that of another woman, say a Christian or Hindu wife,” the government argued in court. The Centre claimed that instant talaq is not fundamental to Islam. It promised to bring in a new divorce law for Muslim men in case the court strikes down the three forms of talaq.

The government argued that Muslim marriage and divorce is codified under Section 2 of the Shariat Act of 1937 and came within the ambit of ‘law’ under Article 13 of the Constitution. Hence, they should abide by the principles of dignity and non-discrimination.

The All India Muslim Personal Law Board countered that triple talaq is a matter of faith like the Hindu belief that Ayodhya is Ram’s birthplace. The courts and the government should leave reform to the community, it said, quoting the Bombay High Court’s unchallenged decision in the Narasu Appa Mali case that personal law should not be tinkered with. Where will Muslim men go for divorce if you (the court) strike down talaq and Parliament refuses to pass a new law, the AIMPLB asked.

What next?

Justice Kurian Joseph, a judge on the Constitution Bench, ignited a spark by suggesting an alternative that a Muslim bride, at the time of the wedding, be allowed to lay down a condition in the nikahnama that she would not be subjected to instant talaq in case the marriage hits a rough patch.

Days after the court reserved the case for judgment, the AIMPLB filed an affidavit saying that it would issue a public advisory to qazis to advise bridegrooms against instant talaq and also add a condition in the nikahnama to exclude instant talaq. The AIMPLB even threatened social boycott of Muslim men who resort to instant talaq.

The hearings also saw the court toy with the idea of making the Muslim Dissolution of Marriage Act of 1939 — applicable only to Muslim women — gender neutral.

Another possibility is that the court may interpret the pronouncement of instant talaq as a single pronouncement of talaq.

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