Triple Talaq : An Analysis

INTRODUCTION

On 22nd August 2017, a five-judge bench of the Supreme Court in a split verdict ruled that the practice of instant triple talaq in the Muslim community is unconstitutional.

The ‘triple talaq’ has been abolished in 21 countries including a lot of Muslim majority countries like Saudi Arabia, Pakistan, Morocco but is still prevalent in India. Now, even after 72-years of independence our Muslim sisters are still exploited and harassed by the man dominated society which is a shameful side of the country. Triple talaq is not expected from civil society.

On one hand,the government argues that when these practices are banned in Islamic theocratic countries, the practices could have absolutely no base in religion and are only prevalent to permit the dominance of men over women

On the other hand, triple talaq has been supported by the All India Muslim Personal Law Board (AIMPLB), a Nongovernmental body that supervises the application of Muslim personal law. It propagates that the State does not have the right to intervene in religious matters.They argue that triple talaq enjoys the status of fundamental rights as it is a part of Muslim personal law.

ANALYSIS

There are three forms of talaq (divorce) in Islam: Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable but Biddat is irrevocable. It allows a Muslim man to legally divorce his wife by uttering ‘talaq’ three times. Talaq is an Arabic word for divorce. A man can say talaq word 3 times and that will be an irrecoverable divorce. The pronouncements can be oral or written and in today’s time, it happens over internet, social media and even on WhatsApp. In the triple talaq practice, men don’t need to give any reason for the divorce and the wife’s presence is not mandatory at the time of the announcement.

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 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 so 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, the right to life of dignity, etc.
• 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.
• With triple talaq, Indian men exploit women,” Ms Bano said. “They say it whenever they want, in a fit of anger. Life suddenly ends for the woman. This does not happen even in Muslim countries. It should end in India too.

Triple Talaq and 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, bringing 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.

THE SHAH BANO CASE

In 1985, Shah Bano sociology postgraduate and a mother of two appealed that triple talaq should be declared unconstitutional when her husband ended their 15-year-old marriage by sending her a letter with the word talaq written on it thrice. Under pressure from the Muslim Personal Law Board and with one eye on vote-bank politics, Rajiv Gandhi government surrendered to the religious leaders and enacted a law that did not allow Shah Bano to receive the alimony (monthly maintenance) from the husband who had divorced her. In the Shah Bano verdict, three decades ago, no major party stood up for the rights of these women nor had they challenged the right of qazis or religious leaders to certify divorces. She has argued that divorce is a civil-rights issue and only courts should have jurisdiction to adjudicate them.

Conclusion

Triple talaq must be struck down as it goes against the constitution and is unacceptable. The Muslim Personal Law (Shariat) Application Act of 1937 recognised and enforced triple talaq, therefore, it should not be considered a personal law but a statutory law. Hence it comes under the ambit of Article 13(1) of the constitution. Article 13 mandates that any law, framed before or after the Constitution, should not be violative of the fundamental rights.

Triple Talaq is manifestly arbitrary and was violative of Article 14 (the Right to Equality) and did not enjoy the protection of Article 25(1) of the Constitution rights

The Government should try to abandon all those laws (like Triple Talaq, polygamy, etc.) which are against constitutional ethos. Given that Hindu personal laws have evolved to empower Hindu women, there’s no reason why Muslim women have to suffer from patriarchal religious practices. Triple talaq and polygamy fail the test of Indian constitutionality.

Thus, the rights of women should be respected across nations which are denied through power structures and social customs like Triple Talaq and polygamy. The women should not be deprived of the basic dignity of life which they deserve.

UPDATE: Shayara Bano Vs Union of India & Ors.

On 22nd August 2017, the Constitutional Bench of the Supreme Court declared the practice of instantaneous triple talaq to be unconstitutional.

The Bench by a 3:2 majority found triple talaq to be manifestly arbitrary in nature. The practice was found to be violative of Article 14 of the Indian Constitution. The Court further directed the Government to frame an appropriate legislation keeping in view the judgment delivered by the Court.

Subsequently, the Muslim Women (Protection of Rights on Marriage ) Bill, 2017 was introduced in the Parliament and the Muslim Women (Protection of Rights on Marriage) Act came into force in 2019.