TRIPLE TALAQ

Context

• Recently the government has brought an ordinance that criminalises Instant Triple Talaq.

Triple Talaq

What is Instant Triple Talaq?

• It is a distorted form of Talaq used by a Muslim man to divorce his wife by just uttering ‘Talaq’ three times.
• It is irrevocable form of Talaq where there is no scope of reconciliation.
• It is practised mainly by the Hanafis, a sub sect of Sunni Muslims in India.

• It is also known as Talaq-e-biddat.
• Supreme Court had outlawed Instant Triple Talaq  in 2017.

Issues with instant Triple Talaq                 

• Triple Talaq goes against the ethos of the constitution as it violates Article 14.
• Many religious leaders say that it violates quranic procedure as there is no mention of Instant triple talaq in Quran.
• It is discriminatory to the women as the marriage is unilaterally dissolved by the husband.
• Awareness of the practise of Triple Talaq has a negative impact on overall development and psyche of girls while growing up.
• The ‘triple talaq’ has been abolished in 21 Islamic countries including Pakistan.

Important Supreme Court Judgments

Shah Bano Case (1985)

• In 1978, Shah Bano was divorced by her husband.
• The Supreme Court directed the husband to pay alimony to Shah Bano.
• However, the Rajiv Gandhi Government at the time, enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, that  nullified the court directive.
• It limited the maintenance payments to the iddat period [the three-month waiting period for divorce].

Ahmedabad Women Action Group (AWAG) case (1997)

• A Public Interest Litigation (PIL) was filed in the court to address various issues including Talaq.
• The court held that adjudication of personal law was beyond the jurisdiction of the court.

Danial Latifi case (2001)

• Lawyer Danial Latifi challenged the constitutionality of the provisions of the Muslim Women’s Act, 1986, for providing maintenance only during the iddat period.
• The Supreme Court ruled that the husband would pay a reasonable and fair amount needed to maintain his ex-wife for the rest of her life.

Shamim Ara case (2002)

• Shamim Ara was divorced by her husband by triple talaq but she denied having been divorced.
• The court held that talaq must be pronounced in an Islamic way and it should be proven beyond doubt the events leading to talaq.
• The judgment invalidated the arbitrary talaq.
• It held that the wife was liable to receive maintenance from her husband.

Shayara Bano Case (2017)

• A five-judge bench in 2017 declared by a majority of 3:2 that instant Triple Talaq is unconstitutional
• Constitution Bench did not accept the argument that instant talaq is essential to Islam and, therefore, deserves constitutional protection under Article 25.
• The main ground on which the practise has been struck down is that the practise is arbitrary and depends on the whims of the husband.
• The court ruled that the practice was against Article 14 of the Constitution, which guarantees the right to equality.
• It suggested the government to bring a legislation banning triple talaq.

Recommendations of the Law commission

• Law commission has released a consultation paper titled ‘Reform of family law’ in August.
• The panel held that social evils such as the practise of triple talaq should not be allowed under religious customs.
• It said that weaker sections like women should not be discriminated in religious practises.
• It has recommended that men and women both should have same rights and grounds for divorce.
• It also called for penalising any man resorting to unilateral divorce as per the provisions of Protection of Women from Domestic Violence Act,2005.

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

• In the light of SC verdict the government introduced this bill.
• The Bill makes all declaration of ‘talaq’ including in written or electronic form to be void and illegal.
• It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.

Offence and penalty:

• The Bill makes declaration of talaq a cognizable and non-bailable offence.
• A cognizable offence is one for which a police officer may arrest an accused person without warrant.
• A husband declaring talaq can be imprisoned for up to 3 years.

Allowance:

• The wife is entitled to seek subsistence allowance from her husband for herself and for dependent children.
• The amount of the allowance will be decided by a Magistrate.

Custody of minor children:

• The wife is entitled to seek custody of her minor children.

Triple Talaq Ordinance

• Since the bill was pending in Rajya Sabha the government promulgated an ordinance.

Provisions of the ordinance

1. The ordinance has incorporated certain safeguards which were not present in the original Bill, to allay fears among Muslim men.
2. The offence has been made non-bailable however the accused can approach a magistrate even before trial to seek bail.
3. Police can lodge First information Report (FIR) only if the complaint is filed by the wife (victim), her blood relations or her relatives.

• Non-relatives or neighbors cannot lodge a complaint under the proposed law.

1. The ordinance makes the offence of instant triple talaq “compoundable” which means that the magistrate can use his powers to settle the dispute between a husband and his wife.
2. The custody of children from the marriage will go to the woman.

Issues and Challenges

Criminalization of a civil wrong

• The Triple Talaq Bill and the recently promulgated ordinance criminalize triple talaq.

Why criminalization is correct

• Triple Talaq is a grave wrong and if strengthened and used correctly, this law can act as a deterrent.
• Even after the SC ruling the practice has continued unchecked and 201 cases of Triple Talaq have been reported since the verdict.
• This law is considered sinful by the majority in the Muslim community especially the women and they wanted it to go.
• Triple Talaq is similar to social evils like dowry and polygamy and should be criminalised.

Why criminalization of Instant triple talaq is wrong

• It will be very difficult for the women to prove ‘oral instant triple talaq’ in the court of law.
• The fear of the husband going to jail may inhibit women from even reporting instant triple talaq.
• There is no  proof that criminalization necessarily acts as a deterrent.
• A  husband would not consider the prospect of reconciliation with his wife because of whom he is in jail.
• The law is not clear on who will pay maintenance when the husband is in Jail.
• Many Muslim men instead of divorcing their wives might abandon them due to fear of prosecution.

Quantum of punishment

• The quantum of 3 year punishment clubs Instant Triple Talaq with other serious crimes like sedition, rioting etc and hence it is excessive and arbitrary.
• A punishment should have only that degree of severity which is sufficient to deter others.

Personal law versus Constitutional Law

• In India Article 14 of the constitution grants right to equality  and Article 25 guarantees religious freedom.
• When it comes to personal issues (marriage, divorce etc), Muslims in India are governed by the Shariat Application Act, 1937.
• In the Triple Talaq case the majority judgment held that personal law is within the bounds of the Constitution and can no longer infringe fundamental rights.
• It found Instant Triple Talaq to be violative of Article 14 of the constitution.
• However the minority judgment held that religious freedom under the Article 25 of Indian Constitution protected not just individual faith, but personal laws too.
• The Supreme Court should take a clear stand on the debate of personal law versus Constitutional law as it will have impact on many other cases like polygamy, Nikah Halala etc.

Way forward

• There is a need for a codified Muslim family law which is based on the Quran and compliant with constitutional provisions.
• Muslim bride, at the time of the wedding should be allowed to lay down a condition in the nikahnama that she would not be subjected to instant talaq in case of a marital problem.
• Awareness should also be raised about khula, through which a woman can also divorce her husband.
• Divorce by triple talaq instead of being criminalized can be placed within the purview of the Protection of Women from Domestic Violence Act, 2005.
• It is essential to bring a civil redressal mechanism  to ensure that women can negotiate for their rights both within and outside of marriage.