Author: Sanskar Meena Student, Rajiv Gandhi National Law University
Triple talaq most popularly known as talaq-e-biddat, is a form of on-the-spot Islamic divorce which has been practiced by Indian Muslims in various ways. The practice of on-the-spot talaq was held unconstitutional by the Honourable Supreme Court in August 2017. The use and status of triple talaq in India has been a subject of controversy and debate. Those questioning the exercising have raised the issue of justice, gender equality, human rights and secularism. The debate has worried the Government of India and the Supreme Court of India, and is attached with the talks in regards with Uniform Civil Code (UCC) stated in Article 44 of the Constitution of India. In July 2019, the Government of India declared the practice of triple talaq as unlawful unconstitutional and made it a punishable. In fact, many countries across the globe have already banned the practice of triple talaq. Islamic countries have also banned the practice of triple talaq. Divorce laws which are prescribe under Holy Quran and Hadees are misinterpreted most of the times by the Muslims Scholars. Prophet Muhammad stated that divorce (talaq) ought to be prevented at any cost till it’s not possible to hold the bond of marriage. Talaq in its literal terms means the method “putting free”, “letting loose”, or taking off any “ties or restraint”. Divorce laws which are prescribe under Holy Quran and Hadees are most of the times misinterpreted by the Muslims Scholars. In the legal sense it means dissolution of marriage by the husband using appropriate words. In other words talaq is repudiation of marriage by the husband in accordance with the procedure laid down by Islamic law.
It is a form of divorce in Muslim law where husband when says the word “talaq” three times in oral, written or in electronic form. Triple talaq also known as talaq-e- biddat, short divorce, and talaq-e-mughallazah (irrevocable divorce), is a type of Islamic divorce which is practiced amongst Muslims in India, especially adherents who comply with the Hanafi Sunni Islamic colleges of thought. The practice of triple Talaq has been prevailing since ancient times in India. 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. Triple talaq became illegal in India on 1 August 2019, replacing the triple talaq ordinance promulgated in February 2019.
Talaq According To Quran
According to reputed and proper Hadith, the Talaq is one of the most disliked acts that a believer can perform. Islam tolerates Talaq by making provisions for it under highly unfavourable conditions only as a last resort. In the phrases of Prophet Mohammad, “Of all of the lawful things, divorce is the maximum hated through Allah.” There are three kinds of Talaq that are being practiced in the Muslim society: Talaq-e-Biddat, Talaq-e-Hassan and Talaq-e-Ahsan. Only the latter two find relevance in the Quran.
MODES OF TALAQ – A Muslim marriage could be dismissed by two ways:
Extra-Judicial Divorce: It is further sub divided into three on the basis of who ends the marriage:
By the husband:
Talaq: If it is an expressed talaq then it is further divided into two categories
Talaq-i-ahasan (most approved)
Talaq-i-hasan (less approved)
By dissolution of Muslims Marriages Act, 1939
By mutual agreement:
Triple Talaq & The Indian Constitution
Article 25 of the Constitution guarantees religious freedom as Freedom of Practice and Propagation of Religion.
Like all other Fundamental Rights, it is subject to restrictions and does not protect religious practices that can negatively affect the welfare of citizens.
Hence, Article 25 is overridden by Article 14, which guarantees the Right to Equality as triple talaq denies a Muslim woman’s equality before the law.
Article 25 is also subject to Article 15 (1) which states that the State “shall not discriminate against any citizen on grounds only of religion, race, caste, sex…” Since triple talaq does not work in the favour of women, it violates Article 15 (1) of the Constitution.
However, section 2 of the Muslim Personal Law (Shariat) Application Act of 1937 recognises triple talaq as a statutory right, taking it under the ambit of Article 13 of the Constitution. Article 13 defines ‘law’ and says that all laws, framed before or after the Constitution, shall not be violative of the fundamental rights.
Steps Taken By Indian Government
The Muslim Women (Protection of Rights on Divorce) Act 1986
According to this act, the husband is liable to pay alimony during the time of iddat or for the span of three months after the divorce. If the divorced woman has no close relatives to look after her or she is incapable of providing her own maintenance, the magistrate has the right to order the Waqf Board to take up the responsibility of providing support to the woman and her children. The act shifts the responsibility of maintenance from the husband to the relatives and the Waqf Board. The husband knows that if he does not provide maintenance, he could still control and harass his divorced wife to beg at different places for maintenance. The husband takes responsibility for the children till they are two years old. After that the responsibility falls on the wife to claim maintenance for them. The efforts by a lone woman to rightfully claim maintenance after divorce got converted into a huge political storm and the concerns of the woman were relegated to the background, the Quranic injunctions on gender justice notwithstanding. Since then there has been no effort either by the various governments or by the community to revive the process of gender-just reforms in Muslim personal law.
Dissolution of Muslim Marriages Act 1939.
Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April 1936. It however became a law on 17th March 1939 and thus stood the Dissolution of Muslim Marriages Act 1939. There was no change in the laws relating to marriages and divorces in Muslim society after that. These were also extremely insufficient in enabling women’s justice in marriage and family matters. It has not served its purposes.
India’s Current Situation
22 nations including Pakistan and Iran have abrogated Triple Talaq either unequivocally or certainly. It is normally accepted that strict minorities in a nation are hesitant to changes, perhaps on the grounds that they feel that adjustment in their own laws may push their religion to a spot where their strict character would be in question. In India, this can be clearly seen that it has consistently been hard to change individual laws particularly with regards to strict minorities. However, taking the case of Sri Lanka here, just 10% of its population is Muslim still, it struck down the concept of Triple Talaq in 2006 by way of introducing to Sri Lanka’s Marriage and Divorce (Muslim) Act, 1951.
Measures To Be Taken
Codifications of Muslim Personal law
Implementation of Uniform Civil code
Getting respect is a key right of each person. Perhaps the principle ends to be drawn via the annulling of the Triple Talaq Bill is that no Muslim will face such segregation and foul play of their existence in future.
The practice of Triple Talaq has consistently been viewed as a discussion by the whole world, yet there are a significant of Muslim nations like Saudi Arabia, Pakistan, Indonesia, Turkey who has ended the practice of Triple Talaq. Significance and activity of Muslim pastors are sizeable withinside the execution of the Triple Talaq Bill.
India is a diverse nation where each religion has its significant and has the privilege to proceed with its practices. Muslims are the biggest minorities in India and have been given different advantages to follow their religion and not will undoubtedly do anything which is against their religion or something which they are not permitted to do.Thus, it can be concluded that making of Triple Talaq as unconstitutional or void was a big step taken by both legislature and judiciary. It was a dream come of true for the women who were sufferer of its misuse. It was used by people as a toy and used to type “talaq” word 3 times through any means be it oral, written or electronic form and thus turned their customs according to themselves without taking into consideration the rights of women. “Talaq” or “Divorce” as in Hindu law is to be the last resort and cannot be taken merely on a trivial wear and tear of the marriage. Also, the recent trends show that even after being declared as unconstitutional and void people are still using it illegally.
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