ABOLITION OF TRIPLE TALAQ
Updated: Nov 1, 2020
Author: Vaasawa Sharma, B.Com.,LL.B. , LL.M. ( Corporate Law), Pursuing PhD, Amity University Haryana. Working as Faculty, Dept of Law, in Starex University Haryana
Introduction
Marriage is the permanent union between two persons. It is the union of two souls for the whole life. Under Muslim Law, marriage is a “civil contract” instead of a sacrament as in Hindu Law. Under the holy Quran, the primary source of Muslim Law, the divorce can be granted on various grounds in various ways. After taking divorce, the rights and obligation of both the parties that are husband and wife come to an end permanently. It is a social tag that society is hesitant to accept. “Talaq” is an Arabic word which is often used in Muslim Law for divorce.
The concept of triple talaq is not new; it has been in operation from time immemorial. Under this, the husband utters the word “talaq” in one single pronouncement that is “talaq talaq talaq” and the marriage is dissolved at the time of the utterance of these sinful words. It can be oral as well as written. In the modern era of technology, husbands divorced their wives on WhatsApp, Facebook and other social media platforms. It seemed that marriage and divorce do not have any legal and moral sanctity. The cases of divorce raised gradually resulted in the havoc in the Muslim society. Then there arose a need to make and implement strict laws to curb this awful game.
Different types of Talaqs
In Muslim personal laws, the provisions are being made for women and men to take divorce from their spouses. The major forms of talaqs for men are Talaq-e-Bidat (triple talaq), Hasan and Ahsan. Triple talaq is instant divorce and is operative from the moment at which the husband utters the three words. It is irrevocable. While tala1-e-Ahsan and talaq-e-ahsan are not instant. In the case of women, there is a traditional “fiqh khul” or also known as “khula”, allowing a woman to divorce her husband through mutual consent of the husband or a judicial decree. Its reference is also available in the Holy Quran or Hadees. Hadees is known as the sayings of Prophet Mohammed.[1]
Introduction of Triple Talaq Bill
With time, Muslim women raised their voice for justice and demanded the abolition of this 1300 years old practice of taking divorce. This is sinful and so inhuman practice to end the marriage by just pronouncing the word ‘talaq’ without any legal force. The issue has been raised that it is a sheer violation of the Indian Constitution as it promotes gender inequality. So, the triple talaq should be held unconstitutional on the ground of gender inequality as the right to divorce is available to the husband only. This is the dominance of men over women, which is not acceptable. Moreover, this practice is against secularism also. So, this issue was raised and the need to amend the laws was highlighted.[i]
Shayara Bano v. Union of India
Shayara Bano was the victim of this practice of triple talaq. She was divorced y her husband, Rizwan Ahmed after 15 years of their marriage. She then filed a writ petition in Supreme Court asking to declare triple talaq as unconstitutional. Moreover, she took up the issues of polygamy and nikah-halala as well. The contention was raised that all these practices are violative of Article 14,15, 21 and 25 of the Constitution of India and hence needs to be abolished.
Triple divorce is the absolute power in the hands of the husband to take a divorce without the consent of his wife.
On 17 February 2017, the court asked for the written opinions of various women rights bodies, All India Muslim Personal Law Board (AIMPLB), Union of India on the issue of triple talaq, polygamy and nikah-e- halal. Many Muslim organizations supported Shayara Bano’s contention while AIMPLB refused to abolish this on the ground that such uncodified Muslim law can not be subjected to judicial review and is protected under Article 25 of the Indian Constitution. Hence, it cannot be held unconstitutional by the court of law.
Supreme Court Verdict
On 22 August 2017, In the case of Shayara Bano v. Union of India [2], the court held the instantaneous practice as unconstitutional by 3:2 majority. Then Triple Talaq bill has been introduced in the parliament which was passed in the year 30th July 2019 and held the practice of Triple Talaq as void.[ii]
From 01st August 2019, it has become a law which declares that Triple Talaq divorce given in the form of verbal, oral, written and digital or any form, whatsoever, deems to be void henceforth and it is illegal to practice.
In addition to that, it has been declared that the practice of triple talaq is an offence now and is a cognizable and non-bailable offence. Whosoever practices triple talaq is liable to imprisonment up to three years along with fine. In terms of allowance, a Muslim woman is also entitled to seek allowance from her husband for herself and her dependent children.[3]
Conclusion
Marriage is a sacrament and a pious union between two persons belonging to entirely different backgrounds and community. The dissolution of marriage is a social stigma in Muslim as well as Hindu law. Besides that, both parties suffer mental pain and agony of separation. So the divorce is not a cup of tea for every marriage. Wherever there are valid and reasonable grounds to take divorce, only then the divorce can be granted but the practice of triple talaq has changed the meaning of marriage and divorce. All persons are born equal; they shall not be discriminated on any ground like gender, caste, colour, creed etc. The end of this instantaneous divorce came to an end providing justice to every woman of India.[iii]
[i] https://www.epw.in/tags/triple-talaq
[ii] https://timesofindia.indiatimes.com/blogs/toi-edit-page/law-banning-triple-talaq-a-year-ago-today-we-reached-a-defining-moment-in-empowerment-of-women/
Author's Biography
Ms Vaasawa Sharma is an academician and is working as Faculty at Dept of Law at Starex University, Haryana. She has completed her B.Com.LLB , LLM (Corporate Law), and is pursuing PhD, from Amity University Haryana. She is gold medallist in her LLM, She has published many Research papers in national and international journals.She has also attended may conferences and workshops. She has published book as well with international publishers.