All you need to know about Triple Talaq

All you need to know about Triple Talaq

TRIPLE TALAQ: A TRYST WITH TYRANNY (AN ANALYSIS)

“Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce”.
                                                     - Justice Suneet Kumar

INTRODUCTION:

We are a nation which proudly profess to be the world’s largest democracy, guaranteeing the protection of equal rights to all our citizens while boldly holding the flag aloft of being a secular nation. However, underneath all the rosy claims, lies the cruel underbelly of discriminatory and tyrannical personal laws which tear apart the foundation of equality upon which our great nation was built?

The most heinous form of tyranny to which Muslim women have been subjected to since time immemorial is the outrageous practice of instant divorce or most commonly known as ‘Triple Talaq”.

It sounds so absurd and somehow cynical that the eternal bond of marriage can be dissolved on just a murmur of a single word thrice in the span of three seconds. Three seconds and now the women is divorced and forced to face a remorseful life. “ Talaq Talaq Talaq” and its over. The marriage is a bond of two people and how can it be dissolved on the will of one and that too most of the times on no reasonable grounds. There have me significant number of cases where a women was divorced because of more salt in food, or for waking up late in the morning for one day , forgetting to iron the clothes, some stain left on the clothes. These are minor mistake which any human is bound to make and sometimes even have no control over it. But that does not mean that she will be made to face atrocities in future. This is what mental harassment is. How women are objectified as sex objects and are treated as if they are just meant to do the daily chores. And we have nothing to protect them, especially the women of Islam. We on the other hand are giving encouragement to such exploitation of women by such practises. This should be monitored and measures should be taken as soon as possible to stop this.

 

Triple Talaq against the progressive spirit of Quran:

Muslim law rests on the four-fold pillars of the fiqh, namely: the Quran (kitab), the Sunnah (Hadiths), the Ijma and Qiyas. A ‘principle’ to become ‘law’ must find a place in the above mentioned sources. The Quranic forms of Talaq, which are most compatible with gender  justice, medical morality, human honour, and personal parity. Talaq is an Arabic word its literal meaning is "to release" or "taking off any tie or restraint” or "removal of the restrictions of  “Nikah” and in Islamic jurisprudence it signifies the repudiation of marriage or dissolution of marriage i.e. divorce. There are different modes of Talaq ordained in the Holy Quran. The different modes of Talaq ordained in the Holy Quran are of mainly two  approved by the Holy Prophet (PBUH). One Talaq-ul-Sunnat (revocable divorce) having two forms Talaq-i- Ahsan (Most Proper Divorce) and Talaq-i-Hasan (Proper Divorce).Two is Talaq-ul- Biddat (Innovative Divorce) which is irrevocable and pronounced thrice in one sitting and operates with immediate effect and better known as “Triple Talaq”.

The paramount source of Islamic jurisprudence has not ordained that three divorces pronounced in single breath would have the effect of three separate divorces. Instead Quran provides that in case of a conflict between husband and wife it should be referred to the arbitration and failing of a peaceful settlement divorce is permitted subject to period of Iddah which keeps open the possibility of reconciliation. During this period, the husband can take them back if they wish to (reconciliation). Divorce given for two times is revocable but it is not so when made for a third time.

The Jamiat Ahle Hadith, the highest authority on the Shariat, has come out with the conclusion that the Talaq-ul-biddat is contrary to Shariat. Talaq-ul-biddat is not a mode recognized in the Quran, and that the Holy Book provides for reconsideration and reconciliation before recognizing divorce as irrevocable. Chapter IV verse 35 of Quran which says,
“Any if you fear a breach between the two, appoint an arbiter from his people and an arbiter from her people. If they desire agreement, God will effect harmony between them.” due to lack of knowledge and understanding of the permissible forms of talaq and of the need for reconciliation and reconsideration before it could be regarded as irrevocable, this form of talaq has been widely used resulting in untold misery and harm to the divorced wife and the children of the marriage.”
In the case of Shamim Ara v. State of U.P, court held that the condition precedent for effectiveness of divorce was the pronouncement of divorce which has to be proved on evidence. Merely taking a plea in the written statement before the trail court in reply to an application for maintenance, that the husband had divorced the applicant sometime in the past would not have the effect of effectuating a divorce. Nor could a similar statement made in an affidavit by the husband in some other case to which the wife was not even a party, be regarded as an evidence of divorce accomplished.
By approving the decisions of Guwahati High Court in Jiauddin Ahmed v. Anwara Begum, and Rukia Khatun v. Abdul Khalik Laskar, the highest court held:
“The correct law of talaq as ordained by the holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbitrators-one from the wife’s family and the other from the husband’s; if the attempt fail, talaq may be effected.”
The Apex Court also raised a grave concern in the matter of Mst. Zohara Khatoon v. Mohd. Ibrahim, which is as follows;
“There can be no doubt that under the Mohammedan law the commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognized by the law. A divorce given unilaterally by the husband is especially peculiar to Mohmmedan Law. In no other Law has the husband got a unilateral right to divorce his wife by a simple declaration”.

 

Laws inconsistent with or in derogation of the fundamental rights–
In view of the provisions of Article 13, the aforesaid Muslim Personal Law (Shariat) Application Act, 1937, shall also be void to the extent its provisions are inconsistent with the fundamental rights, such as those guaranteed under Articles 14 and 15. Clearly, the rights of the Muslim male under the Muslim personal law, to polygamy and to give unilateral triple talaq, are inconsistent with the aforesaid fundamental rights, and therefore, the Muslim personal law is void, at least, to that extent.
Article 13 is a key provision in the protection of fundamental rights, as it makes all laws, before the existence of the constitution as well as new laws formulated by the Legislature, void insofar as they violate any of the Fundamental rights guaranteed under Part III of the Constitution. This provision makes the Courts the guardian and protectors of the Fundamental rights. Article 13 has only one ground of unconstitutionality, namely the violation of any provision in Part III of the Constitution. It however requires the particular law to fall within the definition given in article 13(3) (a).
In fact, it is quite clear from the definition of “law” in Article 13(3)(a), as reproduced above, that even custom or usage is covered within its definition, and therefore, if any custom or usage violates any fundamental rights, that would also be void to the extent of inconsistency. Therefore, even if a right is given to a Muslim male under the Shariat law for triple talaq or for polygamy, the same shall also be violative of the fundamental rights, and accordingly void and of no effect.  Sometimes, it is argued that the Muslim personal law is protected under Article 25 of the Constitution which gives the fundamental right of freedom of conscience and to profess, practice and propagate religion. However, such arguments are not valid as, firstly, the right guaranteed under Article 25 is specifically made “subject” to the “other pro visions of this Part”, which means this right is subject also, for example, to right to equality guaranteed under Article 14 and 15. Secondly, the right guaranteed under Article 25 is to profess, practice and propagate “religion”, and it does not relate to “personal law”. Thirdly, clause 2(a) of Article 25 clearly states that any secular activity associated with any religious practice can be regulated or restricted by the State by making law and the right guaranteed under Article 25 cannot affect any such law. In view of these reasons, it should be clear that personal laws are not covered under the right guaranteed in Article 25 of the Constitution. There is no doubt that in democratic state the Legislature is responsible for the welfare of the State, which includes social welfare and reform. Art. 25(2)(b) sanctions is ‘social’ and not ‘religious’ reform. The court must have respect for the legislative determination, but where a fundamental right is involved, it would be for the state to invalidate such determination if it violates the fundamental right.
Law is settled that in so far as rules regarding marriage, succession, etc. are purely secular in character and are outside the guarantee of Arts. 25 and 26. A legislation bringing succession and similar matters of secular character, the competency of legislature could not be doubted. The directive to establish a common cod was placed in Part IV of the Constitution, it cannot override the immunity of Muslim Personal law which is supposed to have been protected by Arts. 25-26, has no foundation, because not only did the constituent assembly expressly reject any claim to such immunity, but in Entry 5 of List III of the VII schedule, express legislative power was provided by the words:
“all matters in respect of which parties in judicial proceedings were immediately before the commencement of the Constitution subject to their personal law.”
Secondly, though personal laws were allowed to be continued until the competent Legislature were in a position to legislate, the continuance, authorized by Art. 372(1), was made expressly subject to the deadline- “until altered…..by a competent Legislature”.
These provisions related to the personal laws of all communities, and there was no exemption in favour of Muslim personal Laws. The reason was patent that was immunized under Arts. 25-26 was ‘religion’ and not family or domestic law, which has been called personal law, and is concerned with civil rights and liabilities. In regard to Muslim Community, an additional reason why the personal law of marriage cannot be regarded as an integral part of religion is that while Hindu scriptures regard marriage as sacramental and indissoluble, the Quran regards marriage as matter of contract and subject to divorce; and that not merely matters spiritual but even political and social rules of conduct are contained in the Quran, according to the exigencies of the time. Even if it were an integral part of religion, it would be subject to State regulation, in so far as necessary, in the interest of ‘public order, morality and health’.
There is no doubt that triple talaq is an unconstitutional practice, and should be judicially invalidated. There is a correct and constitutional way of doing this, which is to refer the case to a three-judge bench, which can then re-examine the question of whether personal laws are subject to Part III of the Constitution, and correct its earlier errors on this score.
Such provision is clearly in violation of Article 14, Article 15 and Article 21 of the constitution. As regards practice of religion, the courts have ruled in many cases that only those practices, of whichever religion, as are its essential parts must be legally protected. In other words, protection of non-essential religious practices would be the discretion of the state and cannot be claimed to be protected as fundamental rights.
On February 09, 2015, Supreme Court of India in Khursheed Ahmed Khan v. State of U.P quoting the verdict delivered in Javed v. State of Haryana ruled that “polygamy was not an integral part of Islam and justified the firing of a Uttar Pradesh government employee for violating UP Government Servant Rules following his marriage to a second woman”. Further the court observed that "What was protected under Article 25 (right to practice and propagate any religion) was the religious faith and not a practice which may run counter to public order, health or morality. Polygamy was not integral part of religion and monogamy was a reform within the power of the State under Article 25." further the court stated that "a practice did not acquire sanction of religion simply because it was permitted. Such a practice could be regulated by law without violating Article 25".

In the case of Nazeer v. Sheemeema, Hon’ble judge said that  “The State, therefore, can intervene in personal law to the permissible limit as discussed above either bringing legislation in tune with the religious precepts or doctrine or practices or by making secular law not repugnant to the religious practices or beliefs of a particular group. As noted in the earlier part of this judgment, the divorce may result in serious social repercussion. The worst affected are the children born in the wedlock. The empirical finding establishes that triple talaq as practiced in India in almost all the case is not by following Qur'anic injunctions and such practices are allowed in the name of religion, without its backing. It is not possible for the State to curb such practices by invoking penal law alone for the Muslims in India. The only way out for the State is to find out the meaning of rationale of the personal law and to regulate divorce in accordance with the purpose of law. This leads to the important question within the perspective of Islamic law as to the reforms in compliance with divine law as professed by Muslims. The resistance for the reforms as pointed out in earlier paragraphs of this judgment is on a notion of immutability of law of God.” In the same case it was held that If the State makes a law governing the divorce for Muslims in India that law made by the State is a State law, it can in no way be called a law encroaching upon God's law. Then the only question would be whether such law is repugnant to God's law and deny the right to practice religion. The immutability of sharia is, therefore, a fallacy and that does not arise as far as the law making is concerned within the constitutional scheme in India. Neither in Qur'an nor in the Hadith (life or sayings of the Prophet), which are the foundation of the Islmaic law, any form of Government is conceived to implement law. When Prophet passed away he did not name any one as his successor. Therefore, it is clear, in certain areas sharia law has to be articulated through human intervention as it only gives general guidelines.
Triple talaq is unilateral in nature. The Muslim wife does not have any right under this form of talaq. Her consent is not required in the triple talaq and the husband can pronounce the talaq even in her absence. This practice violates the basic fundamental rights of women including Article 14, 15(3) and 21. Article 51A is also violated as this practice effects the dignity of women.
In the case Shamim Ara v. State of U.P &Anr, the Hon’ble Supreme Court of India quoting the judgment delivered by Hon’ble eminent judge and jurist V.R. Krishna Iyer, J., observed that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. The learned Judge further observed that: The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him, ’if they (namely, women) obey you, then do not seek a way against them’." (Quran IV:34). The Islamic "law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously. "After quoting from Quran and the Prophet, Dr. Galwash concludes that "divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting conciliation have failed, the parties may proceed to a dissolution of the marriage by 'Talaq' or by 'Khola.
Dr. Thahir Mahmood in Muslim Law in India and Abroad also refers to this aspect as follows:
"There is no verse in the Qur'an that can be interpreted or stretched to mean approval of the so-called triple talaq. As regards the Hadith, the Prophet was infuriated when somebody pronounced triple talaq and had condemned it as "Playing with the book of God while I am still Alive".
Years after the Prophet's demise his second Caliph, Umar, gave effect to triple talaq in some cases at the insistence of the wives, but after inflicting on the husband the traditional punishment of flogging. It is shocking that his action should have been treated as a binding precedent for giving effect to such an unlawful and repulsive action in every case, even against the wishes of a repentant husband and the aggrieved wife."
Thus from a conspectus of understanding of Islamic law as above, it can be found that:
(i) Triple talaq in one utterance is not valid according to Qur'anic injunction.
(ii) It was allowed during the period of Caliph Umar by an executive order to alleviate the grievances of the women and not as a right to conferred upon the husband. This executive action was exercised in a specified time in a special circumstances and therefore, it cannot apply as the general law regarding divorce by the husband.
(iii) Violation of Qur'anic injunction regarding triple talaq in one utterance is punishable under penal law.
In the case of  Hina & Ors. v. State of U.P & Ors.,  the court was in the opinion that “Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife's right to divorce. The divorce is permissible in Islam only in cases of extreme emergency. Women cannot remain at the mercy of the patriarchal setup held under the clutches of sundry clerics having their own interpretation of the holy Quran. Personal laws, of any community, cannot claim supremacy over the rights granted to the individuals by the Constitution.  Professor Tahir Mohammed in his book Muslim Law of India, Third Edition
(new version) 2002, after observing that the Hanafi rule recognizing and giving effect to improper talaq is not a part of the original Islamic law, has stated:
“In a later period of history it was somehow believed, rather misbelieved, that atalaq-i-biddat was to be given effect invariably in every case-even against the wishes of a repentant husband and an aggrieved wife both of whom may be wanting to continue their marital relationship. As this was never the intention of the jurists of the past, a large number of Muslim countries have enacted laws to outlaw all forms of talaq-i-biddat.”

The practice is unconstitutional as it goes against:
(i) Article 14: Equality before law – The state shall not deny to any person equality before the law or the equal protection of laws within the territory of India.
(ii) Article 15: Discrimination on grounds of religion, race, caste, sex or place of birth – The state shall not discriminate against any citizen on grounds only of religion, race, sex, place of birth if any of them. Another pre-requisite to any divorce is that it must not be whimsical and must be preceded by several attempts to reconcile. It must be the last resort in a failing marital relationship, which Talaq-ul-Biddat does not allow. Also, it can only be used by the husband and the wife has no say in the process. This makes this practice a gross atrocity towards Muslim women and their fundamental rights.
The system of triple talaq, ultimately, puts unfair power in the hands of Muslim men. When a man is allowed to marry and divorce as many women as he wishes (and can even be married to four women at any point of time), with no authority having the right to question him about his actions, women tend to become an expendable commodity for
him. And in this day and age, when every social and political forum is striving to achieve gender equality, it leaves the Muslim women unarmed and vulnerable.
Talaq-ul-Biddat has been declared to be a spiritual offence in the Holy Quran and giving recognition to that form interferes with Muslim women’s right to profess and practice her religion and thus violative of Article 14, 15, 21 and 25.
Article 51A enjoins every citizen to renounce practices derogatory to the dignity of women. The practice of divorcing a lawfully wedded wife by utterance of a word talaq thrice within the span of three seconds is practice derogatory to the dignity of women, according to the notion and in the face of assuring the dignity of every individual in the preamble of our constitution. In recent years, the judiciary has applied the principle of harmonious construction, which implies reading Fundamental Rights and Directive Principles of State Policy together.
In the case of Anima v. Passport officer and others it was mentioned that "The jurisprudential controversy regarding the validity and effect of the triple divorce formula apart, it remains a fact that a predominant majority of Muslims in the country have known it as the only 'Islamic' process of divorce. In a study conducted by Sabita Hussain in Darbhanga town in Northern Bihar it was found that majority of the women respondents (62 percent) were not aware of the true 'Quaran' provisions relating to talaq and the common form of divorce prevalent among the community was talaq-e-biddat.

 

Some other major judicial pronouncements:

The Apex Court also raised a grave concern in the matter of Mst. Zohara Khatoon v.
Mohd.  Ibrahim, which  is  as  follows;  “There  can  be  no  doubt  that  under  the Mohammedan law the commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognized by the law. A divorce given unilaterally by the husband is especially peculiar to Mohmmedan Law. In no other Law has the husband got a unilateral right to divorce his wife by a simple declaration.
In A. Yousuf Rawther v. Sowramma, Justice V.R. Krishna Iyer, as a judge of the Kerala High Court, wrote in eloquent prose as was his wont:
“The ‘Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously’.”
Justice V. Khalid in Mohammed Haneefa v. Pathummal Beevi, even while sitting as a single judge, held that “the view expressed by a Division Bench of two judges that a husband had an unbridled power to pronounce talaq unilaterally was wrong and did not lay down the correct law.”
The Division Bench in the case Zeenat Fatema Rashid after referring to the relevant verses in the Holy Quran held that, if a Mahommedan husband divorces his wife at his whim and caprice, it would not only be a spiritual offence, but it would also affect the divorce. Divorce must be for a reasonable cause, and it must be preceded by a pre-divorce conference to arrive at a settlement.”

 

 

There is yet another illuminating and weighty judicial opinion available in two decisions of Guawahati High Court recorded by Baharul Islam, J. Sri Jiauddin Ahmed v. Mrs.
Anwara Begum,  the learned Judge quoting in the judgment several Holy Quranic versesand from commentaries thereon by well-recognized scholars of great eminence, the learned Judge expressed disapproval of the statement that "the whimsical and capricious divorce by the husband is good in law, though bad in theology" and observed that such a statement is based on the concept that women were chattel belonging to men, which the Holy Quran does not brook.
In the landmark judgment in the matter of Dagdu Pathan v. Rahimbi Dagdu Pathan, surely gives some hope to Muslim women battling with the practice of Talaq-i-biddat. The learned single judge in his judgment pronounced that in tune with the ethos of Islamic law, the husband has relied upon Biddat or Rajai as the form of talaq at an earlier occasion in the form of written statement or oral depositions, it his burden to prove the factum of the same by leading evidence before the court, if the wife contents the talaq in front of the court.
CONCLUSION:
Considering the facts that triple talaq is an own interpreted clause which is  un-Islamic, as negated by highly regarded Islamic scholars, that such a practice has been invalidated worldwide including many Muslim-majority nations and most importantly it blatantly violates provisions of Constitution of India, the practice of triple talaq must be pronounced as unconstitutional. The rights of more than 170 million Muslim women of India are at stake and are arbitrarily subjected to exploitation .Triple talaq is an inhuman practice that violates rights and dignity of women. The Constitution of India under Article 25 confers Right to freedom of conscience and free profession, practice and propagation of religion. The protection under Articles 25 and 26 extend guarantee to rituals, observances, ceremonies, modes of worship etc. which are integral to the religion. But for such practices to be considered as a part of the religion, it is necessary that such practices be regarded by the said religion as an essential and integral part.  It will not be wrong to say that , “triple talaq” at the same instance is not an essential practice of Islam but an self interpretation which is wrong  and hence must be done away with as much haste as possible as its alarming now.
BYL doesn’t support the concept of Triple Talaq in the modern sphere of time.



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