CONSTITUTIONALITY OF TRIPLE TALAQ IN INDIA

Author: Astha Rao, Amity University, Noida

Researcher: Krishna Das, Bharati Vidyapeeth Deemed to be University, New Delhi

Editor: Vaibhavee Jaipuriar, Sharda University, Greater Noida



1. What is Triple Talaq?

Triple Talaq or instant Talaq or Talaq-ul-Biddat is an Islamic practice that permits a husband to divorce his wife instantly by saying the word "talaq" three times. The pronouncement can be written or oral, or by electronic means.

2. Origin of Triple Talaq

Talaq-ul-biddat was enforced by caliph Umar because of a peculiar situation. When the Arabs conquered parts of Gulf, they found women there very attractive and hence wanted to marry them. But these women insisted that in order to marry them, they need to give irreconcilable divorce to their present wives. The condition was accepted by the man because they were aware that in Islam divorce is permitted only twice in two separate period of tuhr and its repetition at one sitting is void. This way, they could retain their existing wives and marry these women also. When Caliph Hazrat Umar came to know about it, he in order to prevent the misuse of the religion ruled that repetition of the word talaq thrice at one sitting would dissolve the marriage irrevocably.[1]

3. Prior and after the judgment

After the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, there has been a sharp decline in the number of cases of triple talaq, only 1,039 cases of triple talaq were reported in the last one year. While 3, 82,964 cases were reported from 1985 to 2019, which means 11, 264 cases per year.

Statistics of Union ministry of Minority Affairs shows that Uttar Pradesh occupied the pole position in triple talaq cases since 1985. 63,400 cases of triple talaq were reported during 1985-2019. However, in the last one year UP has reported only 281 cases. Similar trend was also seen in other states as well.[2]

4. Applicability of Triple Talaq in Islam

Triple Talaq is a disapproved form of divorce. It neither has the approval of holy Quran nor the sanction of the Prophet. It was also not practised during the rule of first Caliph Abu Bakar. Hazrat Umar allowed it because of certain peculiar situation.

In Quran no trace of Talaq-ul-biddat can be found. In fact in the Holy Quran it is stated that all possible attempts must be made for reconciliation between the husband and wife. Thus, triple talaq is against the very spirit of procedure of divorce given in holy Quran and Hadiths as well.

5. Shayara Bano Case

The petitioner Shayara Bano, was unilaterally divorced by her husband through Triple Talaq. She approached the Supreme Court seeking a declaration that the practise of Triple Talaq is unconstitutional and in violation of Article 14, 15, 21 and 25 of the Indian Constitution.

The Supreme Court ruled that the practice of Triple Talaq is “void, illegal and unconstitutional” by a 3:2 majority. Justices U.U. Lalit and Rohinton Nariman held that Triple Talaq is regulated by the Muslim Personal Law (Shariat) Application Act, 1937. They said that the practice is unconstitutional because it is arbitrary in nature.

Article 14 and 15 talk about equality before the law and prohibit discrimination on grounds of race, sex, caste etc. The fact that a Muslim husband can give divorce to his wife by merely saying the words Talaq thrice while a Muslim wife in order to get a divorce needs to file a petition in the competent court is clearly discriminatory on grounds of sex alone and hence it violates Art 14 and 15.

The concept of Triple Talaq clearly violates Article 21 as when a woman who doesn’t have any source of income is divorced by her husband, she will have to be completely dependent on her parents for her survival because Triple Talaq can be enforced unilaterally by the husband and the wife has no say in it.

Triple Talaq cannot be considered an essential practice and cannot be offered constitutional protection under article 25 as well, since it is against the basic tenets of the Quran. A practice that is not prohibited or is simply permitted by a religion cannot be considered a positive or essential tenet permissible by that particular religion, hence, not a part of essential religious practice.[3]

Majority View by Justices Uday U. Lalit, Kurian Joseph and Rohinton F. Nariman: The Judges observed that Triple Talaq goes against the tenet of Quran and the purpose of Muslim Marriage Dissolution Act, 1937 was to declare Shariat as a rule of decision and end anti-Shariat practices which includes triple talaq under Section 2 of the Act. Therefore, no Constitutional protection can be given to such a practice. [4] Prophet Muhammad had stated divorce to be the most disliked of lawful things in the sight of God. Therefore, it is evident that Triple Talaq does not form a part of Article 25(1) of the Constitution. Hence, the 1937 Shariat Act, insofar as it enforces and recognizes Triple Talaq under Article 13(1) will be struck down as being void to the extent that it enforces and recognizes Triple Talaq.[5] The minority view by Chief Justice S. Abdul Nazeer and Justice J.S. Khehar:

They were of the view that the practice of talaq-ul-biddat is a part of personal law and hence has a position equal to other fundamental rights. They said “Reforms to ‘personal law’ in India, with reference to socially unacceptable practices in different religions, have come about only by way of legislative intervention." [6]

Other Case Laws:-

In Dagdu Latur vs. Rahimbi Dagdu Pathan, Ashabi, Bombay High Court observed that a Muslim Husband cannot end a marriage at will and in case of Triple Talaq the facts of the Talaq procedure has to be proved in Court.[7]

In Rahmattullah v. State of U.P. &Ors, Justice H.N. Tilhari held that talaq-ul-biddat runs against the order of holy Quran and has been viewed as by all under Islam-sunnat, to be sinful. He added that it is the need of the time to codify law of Muslim marriage divorce keeping pace with the objectives of the Constitution.[8]

6. Parliamentary aspect

The Parliament in the year 2019, passed the Muslim Women (Protection of Rights of Marriage) Bill that makes triple talaq punishable. The Lok Sabha passed the bill with 303 votes in favour and 82 against it. While the Upper House passed the bill with 99 votes in favour and 84 opposed it.[9]

Opposition members had protested against the Bill. Mr, Shashi Tharoor said that he is against the Bill as it conflated criminal and civil law. Mr Asaduddin Owaisi was of the opinion that the bill is in violation of constitutional rights as it specified a three-year imprisonment for Muslim men, while a similar offence by non-Muslim men is punishable with only up to one year of imprisonment.[10]

The Bill makes Triple Talaq a cognizable offence punishable with imprisonment up to 3 years with fine. However, the offence will be considered cognizable if the information related to the offence is given either by the married women, who has been divorced through Triple Talaq by her husband or by any person who is related to her by blood or marriage.[11]

7. Conclusion

Over the years, Courts have, removed some of the impediments faced by women of the Muslim, Christian and Hindu communities. This process of striking down and reforming unequal and unfair laws of various communities must continue and these need to be properly implemented as well. Even though the practise of triple talaq has been declared unconstitutional, there is still a long way to go. Muslim women need to be empowered and for that there are still many laws that need to be amended. Among Muslims the practise of polygamy still continues in India and the husband is permitted to have four wives at a time. Also the share of a male heir of the same degree is twice that of a female heir. Nikah Halala, Polygamy and no maintenance to a divorced woman after Iddat are other few disturbing aspects of the law. There are still a number of personal laws which need to be amended to ensure gender justice and equality and the personal laws need to be in line with constitutional laws.

[1] Aqil Ahmed, Mohammedan Law 172 (Central Law Agency, Allahabad, 26th edn., 2016). [2]Law criminalising triple talaq brings down cases to 1K from 11K in a year , The New Indian Express, https://www.newindianexpress.com/nation/2020/jul/31/law-criminalising-triple-talaq-brings-down-cases-to-1k-from-11k-in-a-year-2177128.html, last seen on 13/10/2020. [3] Shayara Bano v. Union of India & ors, (2017) 9 SCC. [4] Shayara Bano v. Union of India & ors, (2017) 9 SCC. [5] Ibid. [6] Ibid. [7] Dagdu Latur vs. Rahimbi Dagdu Pathan, (2002). [8] Rahmattullah v. State of U.P. &Ors, 1994 (12) Lucknow Civil Decision, p. 463. [9] Parliament passes Triple Talaq Bill after Rajya Sabha votes 99 to 84 in favour, The Print, https://theprint.in/judiciary/parliament-passes-triple-talaq-bill-after-rajya-sabha-votes-99-to-84-in-favour/270040/, last seen on 13/10/2020. [10] Triple ‘talaq’ Bill introduced in Lok Sabha amid Opposition protest, The Hindu, https://www.thehindu.com/news/national/fresh-triple-talaq-bill-introduced-in-lok-sabha-amid-opposition-protest/article28097311.ece, last seen on 13/10/2020. [11] The Muslim Women (Protection of Rights on Marriage) Bill, 2019, PRS Legislative Research, https://www.prsindia.org/billtrack/muslim-women-protection-rights-marriage-bill-2019 , last seen on 13/10/2020.

45 views0 comments

Recent Posts

See All
 

©2020 by JURIS COGNITIONIS. Proudly created with Wix.com

©ALL RIGHTS RESERVED