REFLECTIONS ON ‘TRIPLE TALAQ’

The Muslim Women (Protection of Rights on Marriage) Bill, better known as the instant triple talaq bill, was passed by the RajyaSabha on 30 July 2019. It had earlier been passed in the LokSabha on 25 July. The clause in the bill which criminalises the practice with a jail term of upto three years for the husband was passed by a division of 302 in favour and 78 against in the Parliament. While the ruling NDA government believes the abolition of talaq-e-biddat or instantaneous talaq as a practice which discriminates against women, will be facilitated by criminalizing it, the Opposition is of the opinion that it impinges on the religious freedom of the Muslim community bestowed in Article 25 and 26 of the Indian Constitution. Further, while the government asserts that the bill stands for empowerment of women, the Opposition rebuts the claim saying the imprisonment of the husband will be detrimental for the wife and the family as he would not be able to provide for the maintenance (as promised in the nikaahnama) when he is in jail.

The Bill is the culmination of years of debate that had finally led the Supreme Court on August 22, 2017, to declare divorce by instant triple talaqas void, illegal and unconstitutional in a 3:2 majority judgment whereby the Supreme Court banned the most controversial Islamic practice that allows men to leave their wives immediately by stating “talaq” (divorce) three times, calling the practice “unconstitutional”. It was argued that this was not the Quranic way of divorce; but an unfortunate addition that had emerged out of historic circumstances. The historical background of this practice has to be understood in the light of the extraordinary conditions that prevailed at the time when this was introduced. During wars of conquest many women from Syria, Egypt and others places were captured and the men were tempted to marry them. However, these women were not used to living with co-wives. They demanded that they would marry only after the men divorced their first wife. The men would pronounce talaq to satisfy these women but later took their former wives back, giving rise to innumerable disputes. Since then, this form of divorce has become an integral part of Islamic Shariah among Sunni Muslims, which is widely practiced in the Islamic world.

There are three types of talaq namely a) Talaq-Ahsan b) Talaq-Hasan c) Talaq-e-Biddat. Talaq-e -Biddat is an instant divorce, also called talaq- mughallazah and this form of Islamic divorce has been used by Muslim men in India. It allows any Muslim man to legally divorce his wife by stating the word three times in a row. It can be spoken, written or in its more recent versions, sent in electronic form. In case of triple talaq the wife is left with no legal redress against this pronouncement, at best she can only claim the deferred amount of Mehr.  That is why the practice has raised serious issues regarding justice, gender equality, human rights and secularism.

The mainstream debate on triple talaq has shifted and taken on many more dimensions from the time of Shah Bano to the current scenario with the ‘landmark’ judgment of the Supreme Court following the petition put forth by ShayaraBano in 2016. The Mohd. Ahmad Khan vs. Shah Bano Begum or the Shah Bano caseis seen as one of the legal milestones in the Muslim women’s battle to protect her rights. In April 1978, a 62-year-old Muslim woman filed a petition in court demanding alimony or maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer in Indore, Madhya Pradesh. The two were married in 1932 and had five children – three sons and two daughters.Shah Bano demanded maintenance for her and her five children under Section 123 of the CrPC, which puts a legal obligation on a man to provide for his wife during marriage and after divorce too, if she is unable to fend for herself. However, Shah Bano’s husband contested the claim saying the Muslim Personal Law required him to provide for her only until the Iddat period.Iddat is the waiting period a woman must observe after divorce before she marries another man. It is usually supposed to last three months, but is longer if the wife is pregnant.

Khan’s argument was supported by the All India Muslim Personal Law Board (AIMPLB), which said the courts cannot take the liberty to interfere with laws laid out in the Muslim Personal Law (Shariat) Application Act, 1937. After a series of hearings, the Supreme Court, in 1985, ruled that the CrPC (Code of Criminal Procedure) applies to all Indian citizens regardless of their religion, and that it applied in Shah Bano’s case too.  Besides, the apex court increased the alimony sum to be given to Shah Bano.The Congress government, headed by then Prime Minister Rajiv Gandhi, overturned Supreme Court’s landmark judgment in 1986 by passing the Muslim Women (Protection on Divorce Act).The Act said maintenance is only liable for the Iddat period and that the courts only had the power to direct the Waqf Board for providing alimony to an aggrieving wife who is not able to fend for herself.Even though Shah Bano’s lawyer DanialLatifi challenged the Act’s constitutional validity, the top court upheld it, saying the liability can’t be restricted to the period of Iddat.Shah Bano later withdrew the maintenance claim she had filed.

The case was challenged once again in Daniel Latifi v. Union of India, where Supreme Court reiterated the validity of the Shah Bano case judgment. In 2017, the long-waited verdict came from a five-judge bench of the Supreme Court which argued that the practice of instant triple talaq in the Muslim community is unconstitutional. The verdict was seen as a historic moment in favour of empowerment of women.

However, the matter is far from resolved. Recently, the Supreme Court agreed to examine the validity of the law that makes the practice of instant divorce a punishable offence while deliberating on a batch of petitions challenging the Muslim Women (Protection of Rights on Marriage) Bill, 2019. The petitions were filed by Samastha Kerala JamiathulUlama, which is a religious group of the Sunni Muslim scholars and clerics in Kerala, philanthropic group JamiatUlama-i-Hind, and Islamic scholar Amir RashadiMadni. Several civil society members have also argued that criminalization may not necessarily act as a deterrent for Muslim men and ignores the lived reality of the women.It is being argued that the need of the hour is in terms of bringing changes that are in consonance with the requirements of the women for whom justice is being sought.

SomyaKumari

Intern

AGA