Author: Malaika Gupta, Amity University Madhya Pradesh Gwalior
Researcher: Shriti Aayushi, K.L.E. Society's Law College, Bengaluru
Editor: Vaibhavee Jaipuriar, Sharda University, Greater Noida
Triple Talaq, also known as talaq-e-biddat which means instant divorce. It is a form of Islamic divorce used by Muslims in India to end the ties of marriage.
Triple Talaq is a form of divorce practised in Muslims whereby the husband can give divorce to his wife by pronouncing Talaq three times. At the time of pronouncing the talaq, the presence of wife is not required; she can be given Talaq without giving a valid reason to her. The expression "Talaq" alludes to the repudiation of marriage by the husband under Muslim law. The act of triple Talaq has been prevailing since the old times in India.
At the point when the matrimonial harmony can't be accomplished, the Quran permits and encourages the life partner to finish the marriage in spite of the fact that this choice isn't to be taken lightly and the community is called upon to intercede by arbitrators from two families to endeavour a compromise. The Quran sets up two further means to maintain a strategic distance from rushed separations, it prescribes two waiting periods of three months prior to the separation so as to give the spouse time to rethink his choice, and a man who makes a vow not to consummate with his significant other, which would lead to automatic divorce, is allowed a four-month term to break his vow.
Rights of women under Muslim Personal Law
Maintenance is the provision of financial support for a person’s living expenses, or the support provided to ensure a reasonable standard of living. The object of maintenance provisions in the personal law as well as under the Criminal Procedure Code is to prevent destitution and save indigent wives or divorced women who have no means of sustenance from seeking sanctuary in the street.
The husband is under an obligation to take care of his wife within the following circumstances:
1. On account of status arising out of a valid marriage, and
2. On account of a pre-nuptial agreement
3. Under the Code of Criminal Procedure, 1973
4. Maintenance under Muslim Women (Protection of Rights on Divorce) Act 1986
There is a difference of opinion among different schools of Muslim law on the quantum of maintenance a wife is entitled to receive from her husband. Under the Hanafi law, the rank and financial position of both the parties are to be considered, while under the Shia law, only that of the wife and therefore the amount of maintenance is to be determined on the idea of wife’s requirements of food, clothing, residence, service.
In Muslim marriage, nikah nama is made between the parties of the marriage which prescribes the rights and duties of husband and wife. The conditions stipulated within the agreement should be valid otherwise the wedding would be considered illegal.
An agreement with the primary wife at the time of second marriage of the husband stipulating that if she wouldn't be ready to live amicably with the second wife, she would be entitled to live separately from him, and claim maintenance, was held valid and enforceable. However, the husband’s liability is limited only till the Iddah period of four lunar months and ten days and the wife can claim maintenance only during the period of Iddah and not beyond that. The landmark judgement on maintenance is Mohd. Ahmed Khan Vs Shah Bano Begum.
Right to choose
According to Muslim law, marriage cannot be consummated without the consent of the women. She has the right to agree or disagree with the terms and conditions of marriage. In order to act on behalf of the women, the father or the guardian must obtain the consent for the marriage contract. At the time of marriage, the government registrar will ask the guardian to produce two witnesses in order to testify that she has appointed him to act on her behalf. Women cannot be forced to marry a person. One of the important of the marriage under Muslim Law is consent. So, they have the right to choose their husband. There should be a proposal for marriage and acceptance of the same. Mere assurance to marry does not confer the status of legal marriage.
Instant talaq was the customary practice followed for a long period of time. This type of talaq infringed the women’s right to question and reason. In the year 2017, the Supreme Court of India declared triple talaq as unconstitutional. A proposition was made to the Parliament by the minority to introduce appropriate legislation to manage the triple talaq system. In the year 2019, the Parliament of India formulated the Muslim Women (Protection of Rights on Marriage) Act to protect the rights of women. The Act proposes to criminalize the triple talaq.
Custodial rights of Muslim women
According to the Hanafi law, the mother is entitled to obtain the legal custody of her male child until he reaches the age of seven years and is capable of taking care of his needs and bodily features. In case of a female child, the custody remains with the mother until she attains the age of puberty, which may start at the age of nine years, or any point thereafter until the age of fifteen years.
Thereafter, in each case, legal custody of the child is transferred to the father. The male child remains in the legal custody of his father till he reaches the age of puberty. Then he is matured enough to choose with whom to live or to live on his own. The daughter remains in the legal custody of her father until she marries.
In the event the mother remarries another man other than the father or dies during her period of legal custody, the custody gets transferred to the maternal grandmother, and thereafter, paternal grandmother.
Discrimination against Muslim Women
Muslim women have been subjected to discrimination on the basis of gender, education and marriage. According to Muslim customs, men are superior to women. He is regarded as the head of the family. Men play an important role in the decision-making process. The role of women is to obey and be compliant towards men. Women have been facing discrimination in the field of education. Girls are not provided with the opportunity of an education. In the areas of employment, men are prioritized and provided with the best jobs. On the other hand, women are provided with lower-paid jobs. Women are allowed to work if her work does not interfere with household chores. Muslim law allows the man to perform polygamous. At times all the love and attention are divided as much time is spent with the newly married wife. There exists a gender difference under Muslim law. Women are not allowed by the Muslim custom to marry a non-Muslim. Whereas men are permitted to marry a non-Muslim.
Nikah halala is a practice that allows a divorced Muslim woman to remarry her former husband. According to shariah school, a Muslim man can divorce and remarry a lady twice. However, if the person dissolves the wedding for the third time, he can remarry an equivalent woman if she first marries another man, consummates the wedding, which man dies or divorce’s her voluntarily. The practice of polygamy allows a Muslim man to possess quite one wife.
Supreme Court has already accepted the practice of nikah halala as illegal practice back in the year 1997,
The court further added that challenging the religious practice by someone who does not even belong to that religion will not be accepted as the PIL was filed by Ashwani Kumar Upadhyay the leader in Bhartiya Janta Party (BJP)
It was further stated that the personal laws do not derive their validity on the ground that they have been passed or made by a legislature or by other competent authority, read by the board’s petition. “The fundamental source of personal laws are their respective scriptural texts.
The board argued on this text from the Hon’ble Court that the fundamental validity can’t be only seen by the fact that they are mentioned in Holy Quran and the Hadith of the Prophet Mohammad and thus it cannot fall within the purview of expression as mentioned under Article 13 of the Indian Constitution.
Nikah halala: Is it rape or religion?
According to me nikah halala is a akin rape and polygamy is a humiliation for Muslim women, and this practice must not have any place in the 21st century of India.
Though triple talaq has already been declared as unconstitutional by the Hon’ble Supreme Court, but this is the half-baked victory for the Muslim women.
Nikah halala and polygamy are raising a major question according to me on the freedom to religion (Article 25) for the women
Law to penalize Talaq -e- Biddat
Muslim Women (Protection of Rights on Divorce) Act was legislated by the Lok Sabha to fight for gender justice. The judgment pronounced by the Supreme Court on the illegality of an instant talaq given orally or in any other form is codified under this Act. The legislation only dealt with the practice of instant or triple talaq. With the criminalization of triple talaq, it is regarded as a cognizable offence. The condition of punishment is imprisonment for a period of three years. It provides steps for the protection of women. The burden of holding action is placed on the police against the person who looks for divorce from his wife through the way of triple talaq. The provisions of law make it compulsory for the husband to give financial support to his wife and children. The law provides the women to call for the necessary course of action on law and order whenever required.
Question of law?
1. Two issues were raised in Mohd. Ahmed Khan vs Shah Bano Case-
a) Whether Section 125 of the Code of Criminal Procedure, 1973 (CrPC) is applicable to Muslims or not.
b) Whether the amount given as Mehr is enough for the maintainability of the wife.
c) Issue raised in Rashida Khatun Case was can an assurance to marry amount to acceptance to marry.
There is a verse calling out of the mediators and the family members from both sides of the parties for the purpose of reconciliation between the husband and the wife and 90 days time period is given for thinking about the marriage. According to Islam Allah has ordered the man or the husband to carry out this process. The divorce takes place at the end of the 90 day period if the reconciliation does not take place.
So the question of unilateral or the instant divorce does not arise and this makes the practice of triple talaq illegal and unconstitutional in India.
According to me, triple talaq does not take place because of practising the rules provided in the religion but only for showing-off the patriarchy and the power of men, it is important that Muslim men and women are educated about their rights, duties, and Quranic principle of justice and fairness. We are confident after taking such remarkable steps by the Muslim women for their rights judicial bodies will also take out some long-lasting solution for the protection of the rights.