Triple Talaq

September 28, 2018 175 views
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The controversy around ‘Triple Talaq’ was thought to have ended after the judgment of the

Apex Court in the case of Shayara Bano v. Union of India 1 declared the practice

unconstitutional. But, the controversy has come to light again, as recently, i.e. on September

19, 2018, an ordinance promulgated by the President of India banning the practice. In order to

fully appreciate the controversy it is important we understand the events leading to up to the

ordinance.

 

Sanctity of Triple Talaq

The Muslim tradition, unlike the Hindu tradition does not attach sacramental value to the

union of marriage. In the Muslim tradition, the marriage or ‘nikkah’ is a contract, and is

complete with all the essentials of a contract, which includes presence of unqualified consent

between the parties and even consideration being paid in the form of ‘meher’ by the to-be-

husband to the to-be-wife. Given that the union of marriage is contractual, the Muslim

tradition also provides for divorce or ‘talaq’ i.e. a way to repudiate or end the contract of

marriage.

The religious texts of the Muslim tradition and their practice and customs provide for a

number of ways in which the husband can divorce his wife, and ways in which the couple can

mutually decide to divorce each other. While certain divorces provided are revocable in

nature (i.e. talaq-e-sunnat, which is further divided into talaq-e-ahsaan and talaq-e-hasan

depending upon the way in which it is pronounced) others are not. While talaq-e-biddat is an

irrevocable and instantaneous form of talaq. Talaq-e-biddat is pronounced by the husband

unilaterally by saying “talaq” thrice to his wife, hence called Triple Talaq.

 

The Problem attached to the Practice

The finality and ease attached with this kind of divorce resulted in difficulties with the

Muslim women, who as a result of triple talaq were deserted by their husbands during the

subsistence of the marriage as the husband could easily pronounce divorce as per their whims

and it was a valid divorce in law. Moreover, which the advent of technology and media, the

Muslim men started using text messages, phone calls and even WhatsApp messages to

pronounce divorce.

1 Shayara Bano v. Union of India, (2017) 9 S.C.C. 1.

 

The problems attached with Triple Talaq are the violation of the rights of the Muslim women,

who owing to Triple Talaq had been deserted by their husbands. In the case of Shayara Bano,

who became the principle petitioner in the case where triple talaq was declared

unconstitutional by the Supreme Court, divorce was pronounced through a note by speed

post. For another petitioner in the case, Ishrat Jahan, divorce was pronounced by her husband

through a telephonic conversation. The abruptness and irrevocability of the triple talaq and

the consequent problems have been recognized in the world for a long time. Countries,

including Pakistan and Turkey have already banned the practice for the prejudicial position

the practice puts the women in.

 

The Judgment declaring Triple Talaq Unconstitutional

On August 22, 2017 the Constitutional Bench (comprising of 5 judges, in this case: then

Chief Justice J S Khehar and Justices Kurian Joseph, Justice RF Nariman, Justice UU Lalit

and Justice Abdul Nazeer) Supreme Court declared the practice of ‘Triple Talaq’

unconstitutional by a 3:2 majority. The practice was declared unconstitutional on the round of

being violative of Article 14 of the Indian Constitution i.e. Right to Equality and also as it did

not have any backing in the Quran for the practice. The bench allowed other petitions of the

women who had suffered on the account of the arbitrary nature of divorce and the second

marriage of their husbands during the subsistence of their first marriage.

While the minority opinion of the Court held that the practice was a part of the religion and

under the Muslim Shariat Act, 1937 the Muslims had a right to practice their religion as per

their customs and without a legislation declaring the practice as prohibited, the Court would

not be correct in declaring the practice unconstitutional. While, the majority judgment held

that the Right to Religion under the Constitution, under Article 25 is not absolute and cannot

be practiced while violating the public health, health, morality and the Fundamental Rights as

such. It also held that the practice of triple talaq was in no way ‘integral’ to the religion of

Islam and therefore the Court declared it unconstitutional.

The Triple Talaq Bill

In the judgment of the Supreme Court, Justice Khehar had mentioned that a law declaring the

practice as being prohibited would be feasible as otherwise the practice is protected under

Article 25 of the Constitution which guarantees freedom of religion.

The Government in power was swift to draft a bill known as Muslim Women (Protection of

Rights on Marriage) Bill, 2017, declaring the practice void and also criminalizing the practice

 

with a punishment of 3 years of imprisonment. The bill gathered significant criticism as being

drafted in haste and did not have the necessary data to back up the penalizing of the practice.

However, the bill was passed by the Lok Sabha on December 15, 2017 but the Government

failed to get it passed in the Rajya Sabha in the recent monsoon session. The objections

leveled up against the bill included declaring pronouncement of triple talaq as a cognizable

and non-bailable offence which can be used to fulfill ulterior motives by in-laws, and even

when used in good faith it does not lead to a situation where the family can live together.

 

The Ordinance Route

The President of India, under the scheme of the Constitution has the power to promulgate an

ordinance under Article 123. This provision allows for legislation when the Parliament is not

in session. On September 19, 2018 the President of India, passed the Muslim Women

(Protection of Rights on Marriage) Ordinance, giving effect to the Bill which has lapsed in

the Rajya Sabha. However, given the concerns raised with the provisions of the Bill, the

promulgation of the Ordinance has not been very well received. While, there are sections of

the society that believe declaring pronouncement of triple talaq as a punishable offence will

lead to enough deterrence to weed out the problem all together. There are also sections of the

society which questions the basis of declaring the practice as a criminal offence when in

essence it deals with matrimonial proceedings which are of civil nature. Plus the fact that the

Government could not bring up any report or study to back up the urgent need to criminalize

the practice and make it a non-bailable offence. Either ways, the ordinance shall have its own

life and would stand at the floor of the parliament to be or not to be affirmed as a law.

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