Religious Faith V. Logic An Analysis Of The Shayara Bano Case And The Triple Talaq Act, 2019
Author: Aheli Ghoshal Student, Amity University, Kolkata
Before the Shayara Bano case or the “Triple Talaq” Act, how easy it was for the Muslim man to declare himself free from his marriage, by just uttering 3 simple words- “Talaq, Talaq, Talaq.” I wonder whether all the Muslim women before this landmark judgement was pronounced, used to live in fear – that when her husband shall no more be interested to live with her, and that he will decide to utter those 3 dangerous words. As a woman myself, I find this practise to be quite an illogical and heinous practise, which I suppose was made to make India more misogynistic in nature.
This article tries to portray the facts regarding the Shayara Bano case, and in the later part, the Article also discusses the Triple Talaq Act or The Muslim Women (Protection of Rights on Marriage) Act, 2019.
DIVORCE AS PER ISLAMIC RELIGION
There is some difference regarding the concept of separation and divorce in the Islamic religion.
Divorce can be made between the Muslim man and woman as per the mutual consent of both the person.
Women can seek divorce from the husband, which is also known as “Khula”. It must be noted here that as per the Islamic law, only the man can grant divorce and not the women. Women can only “seek” for a divorce as per “Khula”. If now the case arises that the man does not agree to grant the divorce, then the woman can go to a Shariah court and the court can decide regarding whether the divorce shall be conducted or not. Further, if the court provides any judgment which is not satisfactory to the woman, then she can go to the normal courts of India.
There are 3 types of Talaq as per the Islamic law-
Talaq e Hasan
Here, the husband pronounces the word “talaq”, only once. Next, the husband has to wait for 30days. Why? During this period of 30 days, negotiation or reconciliation takes place- where the village elders or the village seniors request the couple not to get divorced. Or the husband and the wife can decide to give their marriage a second try. If the couple decides not to get divorced, then the husband has to “take his talaq” back.
Now, if however, nothing could be done to fix the sour marriage, then the husband shall say talaq for the second time. And again, the same period of 30 days will go on.
If no reconciliation could be done in the second time as well, then the husband shall say talaq for the third and last time, and this time the couple gets officially divorced.
Talaq e Ahsan
Here, the husband pronounces Talaq for one time only and then he waits for a total period of 90 days. Like Talaq e Hasan, during this period of 90 days reconsideration or negotiation can take place so that the couple do not get separated from each other, but however if it does not occur, then the couple gets officially divorced.
Talaq e Biddat
In this type of divorce, the word talaq is pronounced by the husband 3 times and in a single utterance. After the husband does so, the couple gets instant divorce from each other.
It must be noted that this type of talaq was different from the other two, because here talaq can be given by the husband not only through his oral words but also he can give it in written way, that is, through a letter, through social media, through phone calls or through any other modes. This type of Talaq is banned in several Islamic countries such as Egypt and Bangladesh and even in Pakistan.
But however, this was still in practise in India.
Another two things which must be understood in order to understand the case of Shayara Bano, are Nikah Halala and Polygamy.
Nikah Halala is a practice conducted in the Muslim religion where if the husband and the wife divorces from each other and later they want to remarry again., they cannot do so in a simple way. Rather, the woman has to marry a second person and then she has to get divorced from her second husband. After her divorce from the second person, only then can she get back to her first husband and marry him.
The word polygamy means as per the Muslim law, the Muslim men are allowed to have more than one wife.
THE SHAYARA BANO AND OTHERS V. UNION OF INDIA, 2017.
Shayara Bano and her husband Rizwan Ahmed were married for 15 long years. However, in the year 2016, Rizwan Ahmed allegedly decided to divorce Shayara Bano, through the Talaq e Biddat, where he said the words three times and thus he got divorced from Shayara Bano.
After this, she decided to file a writ petition at the Supreme Court.
Through this writ petition, Shayara decides to challenge three practices that were going on in the Muslim religion.
Talaq e Biddat
The issue which arose in front of the Supreme Court was that-
Whether Supreme Court should declare the Triple Talaq or Talaq e Biddat an essential practice or not.
Whether the Talaq e Biddat violates any fundamental rights or not.
SUPREME COURT’S VERDICT
A five-judge constitution bench was created to hear the case and decide the verdict. This bench was quite unique in nature because it had a Muslim Judge, a Hindu Judge, a Parsi Judge, a Christian Judge, and finally the then Chief Justice of India who was Sikh by religion.
Two among the 5 judges, the then Chief Justice J.S. Khehar and Justice Abdul Nazeer supported the triple talaq and said that this practise was a part of Muslim faith and Muslim Personal Law. They further said Muslim Personal Law is a fundamental law as well, and so triple talaq cannot be banned, but however they gave a stay order on the practise for a tenure of 6 months, and they further said that the Supreme Court should not ban or strike down this practice. However, the parliament can decide to make any law which will make the practice of triple talaq an unconstitutional one.
Other two judges namely Justice Rohinton Fali Nariman and Justice U.U. Lalit said that this practise was an unconstitutional one. They reasoned that this practise is illogical and arbitrary in nature, and that it violates the basic fundamental rights of the women through Article 14, which provides for the equality of all genders.
The remaining fifth judge, Justice Kurian Joseph gave the judgement that Talaq e Biddat is unislamic in nature. He reasoned that there is no provision for reconciliation, negotiation or revocation mentioned in the practice of the Talaq e Biddat. These provisions were mentioned in the other two types of divorce that is Talaq e Hasan and Talaq e Ahsan.
Therefore, since the majority of the charges were in favour of banning the Talaq e Biddat, therefore the triple talaq practise was set aside in 2017, that is, the judges ordered that the practise of triple talaq should not continue among the people belonging in the Muslim religion.
On 30th July 2019, The Indian Parliament declared the practice of triple talaq as an illegal and an unconstitutional one, and further the parliament made it punishable act from the year 2019.
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019
After the verdict pronounced by the Supreme Court, the government decided to bring in a law in order to protect the women belonging in the Muslim religion (not only in cases of divorce), considering the fact that the judgement pronounced by Supreme Court in Shayara Bano’s case was not being followed at all. Thus, The Muslim Women (Protection of Rights on Marriage) Act, 2019 or the Triple Talaq Act was brought in.
The Act says 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”.
This Act declares talaq to be a “cognizable offense”. Those who commit this offense shall receive an imprisonment up to 3 years along with a fine. A cognizable offense is an offense where the police can arrest the person without any official warrant.It must be noted that in order for the offense to be a cognizable one, the married woman against whom the talaq has been declared or any other person, be it a consanguineal or affinal person must agree to the fact that the husband had indeed pronounced the word talaq three times.
The Act further provided a remedy for the accused, where the accused can be provided with bail, but it can only be done after the court has heard the story of the woman.
Now the Act also provides another remedy known as a compoundable offense. By this word, it means that after a case has been filed in the court by the wife, then a settlement or negotiation can be made between the couple, where if the negotiation is successful, then the wife can withdraw the case from the court.
The Act also makes a provision called non-compoundable offence, where it is clearly stated that if the husband commits any offense such as rape or murder, then the accused shall definitely get punished.
The Act also provides remedy towards the wife, where if the husband has said triple talaq towards his wife, then the wife has complete right to ask for financial allowance from her husband, for herself and for her children who must be dependent on her. Here, the amount of allowance that must be given by the husband shall be calculated by the magistrate.
The Act also provides that the Muslim wife has complete right to seek custody of her children, who must be minor in nature. It is stated that the nature and manner of the custody shall be determined by the magistrate.
Imagine a situation, where a husband suddenly decides that he is no more interested to stay with his wife, and so he says the word talaq three times and thus he is released from the contract of marriage. Imagine the suddenness of the situation and the utter distress that the wife must have been in.
As per my opinion, the Supreme Court was quite justified to declare the practice of triple talaq as an illegal and unconstitutional one. But however, here the question of mens rea arises.
Let us look at two cases. Suppose the husband said the word talaq three times, and he declares that he is now divorced from his wife. Next, the woman decides to take help of the Triple Talaq Act of 2019. Now the question arises that how will the wife prove to the court that her husband had actually said those words? What if the husband later declines in front of the court that he has not even uttered those words and that his wife is lying?
Another case which can happen is that a woman can take advantage of the Triple Talaq Act and can deliberately trap her husband. The question arises that what is the remedy of the husband here?
Also, as per the critics of the Triple Talaq act, there was no need of this law considering the fact that as per Article 141, any judgement provided by the Supreme Court becomes a rule of law. Thus, since in the 2017 Shayara Bano judgment, the Supreme Court has already set aside the triple talaq practice, therefore the critics argued that what was the point of bringing in this law.
Moreover, in my opinion the punishment of 3 years to the accused is quite a less one. By using just three words, a woman’s life is completely destroyed. In India, although we are living in the 21st century and India boasts of being a developing country, divorced women are still not provided with equal respect that a divorced man is provided with. Keeping this in mind I believe the punishment of only 3 years was quite a less one.
Nevertheless, this positive step taken by the Supreme Court in order to curb the horrible practice of the triple talaq was quite a justified one.
LawBhoomi, “CASE BRIEF: SHAYARA BANO AND OTHERS V. UNION OF INDIA AND OTHERS, WRIT PETITION (C) NO. 118 OF 2016”, 3rd June 2020 – https://lawbhoomi.com/case-brief-shayara-bano-and-others-v-union-of-india-and-others-writ-petition-c-no-118-of-2016/#:~:text=Shayara%20Bano%20was%20married%20to,Talaq%2De%2DBiddat
Business Standard,” WHAT IS TRIPLE TALAQ LAW” – https://www.business-standard.com/about/what-is-triple-talaq-law#:~:text=Triple%20Talaq%2C%20also%20known%20as%20Muslim%20Women%20(Protection%20of%20Rights,favour%20and%2084%20against%20it.