Triple Talaq - Essay.docx

Triple Talaq To talk about the much debated issue on triple talaq, which has been recently declared as unconstitutional and thus has been set aside by the Supreme Court of India in Shayara Bano and Ors V The Union of India and Ors1, we must first understand that what exactly is triple talaq.

What is Triple Talaq ? Talaq id the divorce in the instance of the Husband. There are three kinds of Talaq : 2 1) Talaq- e- Ahsan3 2) Talaq –e-Hasan4 3) Talaq-e-Biddat .Talaq-e-Biddat is the kind of divorce that is effective by one definitive pronouncement of talaq or three simultaneous pronouncements like talaq, talaq, talaq. This type of divorce is effective forthwith and is irrevocable in nature. This type of talaq is known as Triple Talaq.

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(2017) 9 SCC 1 (2017) 9 SCC 1, Para 117-121 3 Talaq – e – Ahsan is the kind of divorce whereby the husband pronounces talaq once and after that the couple has to maintain a period abstinence, also known as the iddat period. The period of iddat is ninety days or three menstrual cycles. If the couple resumes intimacy within the period of iddat, the pronouncement of divorce is treated to be revoked. Therefore this kind of divorce is revocable in nature 4 Talaq –e- Hasan is the kind of divorce whereby the husband pronounces talaq thrice, each at the end of a month. If the couple resumes cohabitation after the first pronouncement of talaq and before the second pronouncement of the same, or after the second pronouncement and before the third pronouncement then the pronouncement stands revoked. However it is pertinent to note that the husband can revoke his pronouncement of divorce anytime before the third and final pronounce, but once the third pronouncement is done, the divorce stands irrevocable 2

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Article 25 and Triple Talaq Due to the Constitutional Scheme of our country, every religion or every part of the society has the right to practice and profess their religion, although many articles of the Constitution of India silently indicates about the same but most of the credit goes for Article 25 of the Constitution of India 5 One of the reason why Triple Talaq existed so many days in our country was the above mentioned article, the other reasons are many from blind religious faiths to vote banks etc, theses issue would be better dealt by some sociologist. Article 25, permits anyone to profess, practice and propagate religion and the practice of triple talaq was initially covered under that. But the Supreme Court of India via it’s Judgments

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held that only essential

practices of a religion is protected by Article 25 and it has been carefully examined in the Triple Talaq Case 7, that the practice of triple talaq does not form the essential practice of the religion of

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25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. 6 7

(2003) 8 SCC 368 ; (2004) 12 SCC 770 ; 1954 AIR 1005 ; AIR 1952 SC 282 (2017) 9 SCC 1, Para 53-55

Islam. The practice of Triple Talaq is only recognized by the Hanifi Jurisprudence and hanifi Jurisprudence itself considers Triple talaq as sinful.

Article 14 and Triple talaq Time and again Muslim Personal Laws specially relating to women has been found contradictory to Article 14 of the Indian Constitution.8 One of the primary reasons Muslim Jurisprudence has been found to be in contradiction to Article 14 is that some of the Muslim Laws are unjust and unfair to women and it has not only been seen in the triple talaq scenario, but also in the case of Shan Bano 9, in that case the Supreme Court itself held that although the personal laws were different for different sections or religions, but criminal code is the same for all and hence Muslim women are entitled to maintenance under section 125 of the Code of Criminal Procedure, and also the court regretted the fact that in spite of so many years after independence there so no endeavor from the part of the government to achieve the goal of Uniform Civil Code in furtherance of Article 44 of the Indian Constitution10. But, then also the Judgement was reversed by an act passed by the parliament11 which tried to strike a balance, but still it favored the Muslim Jurisprudence. Later on the Constitutional Validity of the

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14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 9 1985 SCR (3) 844 10 44. The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. 11 The Muslim Women (Protection of Rights on Divorce) Act 1986

Act was challenged in Danial Latifi & Anr v. Union Of India

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whereby the Hon’ble Judges came up with 2 interpretations that the Act was prima facie violative of Article 14 and the second was that that parliament does not intend to make unconstitutional laws, they decided to go with second interpretation. So, the issue of maintenance of muslim women is still guided by that somewhat better than previous law. Now in case of Triple Talaq, the same principle can be applied, personal law can be different but it should not be in contravention of the Supreme Law of The Land i.e the Constitution of India. The practice of Triple Talaq surely degrades the position of women in the eyes of law, when compared to women of other religion and thereby it offends Article 14.

Problems of Triple Talaq Muslim Women are the citizens of India first, then they belong to some religion, but while they might be guided by their own religious law, that law must not offend the Constitution of India and other common Codes like the Criminal Procedure Code etc. Muslim Women being the citizen of India enjoys some fundamental rights, which cannot be taken away from them at any cost and certainly not in the plea and pretext of their personal laws. The practice of triple talaq, clearly discriminated them in the eyes of law and also bereft them of their fundamental rights which are guaranteed to them by the Constitution of India. The practice of divorce is found in every religious laws, but the procedure has always been in consonance with the constitutional scheme, but the practice of triple talaq is simply whimsical as also stated the Apex court in the Triple Talaq case and is also sinful in the same

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Writ Petition (civil) 868 of 1986

jurisprudence that recognizes it. Triple talaq also left Muslim Women in a state of sheer bewilderment, they had no say whatsoever after their husband had pronounced talaq 3 times. Cases were being heard where some husband even divorce his wife by this draconian method using the digital media via whatsapp

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and also in situations where the wife was pregnant 14, these sort of divorce at the whims and caprices of husbands left Muslim Women at great disadvantages. Had the Supreme Court of India not adjudicated on the matter and held triple talaq void then that day would have been not far when a Muslim Husband would divorce his wife by triple talaq for not being able to look good that day, or even for not adding an extra spoon of sugar in his cup of tea.

Supreme Court of India on Triple Talaq After long considerations and after a lot of complaints of Muslim Women a 5 judge bench of the Apex Court finally stepped in and declared the practice of Triple Talaq as unconstitutional and illegal by a majority of 3:2 in Shayara Bano and Ors V The Union of India and Ors15. And granted the legislature 6 months time to formulate a new law in this regard .

Triple Talaq Bill16 The legislature in compliance if the order of the Apex court has introduced the THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017 or the Triple Talaq bill,

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http://www.timesnownews.com/india/article/triple-talaq-amu-aligarh-muslimuniversity-professor-whatsapp-text-message/123830 14 http://www.timesnownews.com/india/article/top-triple-talaq-cases-that-shookthe-nation/75965 15 (2017) 9 SCC 1 16 THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017

Section 317 of the bill makes the divorce by pronouncing talaq 3 times by any media or words spoken or gesture made void and Section 418 is the penal section of the act which provides punishment for pronouncement of triple talaq for divorcing a wife, this bill was passed by the Lok Sabha on December 28, 2017 and is yet to be passed on the Rajya Sabha as of now. This bill, if passed can be a great relief for the Muslim Women in India and can make them stand in the eyes of law in same footing as women’s of other religion and considering the ever changing scenario of India, this Judgment on Triple Talaq and this Bill was the need of the hour. And it can well be inferred that if this Bill is passed it can be the founding stone towards formulation of the Uniform Civil Code in furtherance of Article 44 of the Indian Constitution. CODE – SB241

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Section 3. 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. 18 Section 4. Whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine