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Triple Talaq- the socio-religious perspective

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Instant Talaq is something which has its genesis is women being divorced through SMS or over a mere phone call. This instant talaq is essentially ‘Talaq-ul-bidat or Talaq-e-biddah’. ‘Biddah’ means innovation and essentially all Muslims are advised against introducing ‘biddahs’ in their religion.

Shabnum Farraq

Triple talaq (also known as talaq ul bidat/talaq-e-biddah or talaq-e-mughallazah) is a form of irrevocable Islamic divorce practiced by Muslims in India before it was declared unconstitutional here. It permitted a Muslim man to legally divorce his wife by uttering talaq (Arab word for divorce) thrice. It also permitted the Muslim community to initiate a divorce through various means such as verbal, written or even electronic form.

  1. Islamic Talaq Types

Islamic law recognises two kinds of talaq namely talaq al sunna which works as per the dictates of Prophet Mohammad and Talaq-ul bidat which is an innovation born out of the strict dictates of the prophet. Talaq ul bidat appeared in the second century when Omayyad rulers found laws proposed by the Prophet were too strict. Several Muslim majority nations have banned triple talaq.

  1. Talaq-e-Sunnah vs Triple Talaq

Nikah is essentially a contract laid down in a ‘Nikahnama’ drawn between the husband and the wife. This contract can have conditions and has a compulsory ‘consideration’ (Meher) to be paid at the time of the marriage. This consideration is paid by the man to the wife, and can be at time waived off by the woman as per her own will. To examine question of triple talaq, one must understand that in Islam, everything is followed as per Sunnah (Deeds of the prophet). Hence, most Muslim women bodies opposing ‘triple talaq’ want the Muslim bodies to adopt ‘Talaq-e-Sunnah’ (Divorce as per the Prophet’s sayings and Quranic dictation) and discard ‘Talaq-e-Biddah’ (Divorce as per a later formed mode of divorce which propagates instant divorce).

  1. Fa’izu Hunna: Know More

According to the Prophet’s sayings, giving talaq to a wife in a fit of rage or anger is strictly prohibited. The Quran advises the husband to settle the differences through a mutual conversation as the first step. This step is known as the Fa’izu Hunna.

  1. Wahjuru Hunna: The Next Step

If the differences continue between the husband and the wife, the parties should refrain from any conjugal acts till they settle their dispute. This step of physical separation known as the Wahjuru Hunna is prescribed so that the couple re-unites. However, even if this second step fails, it is recommended that the husband must attempt to talk to the wife, make peace with her and talk about the gravity of the situation. This third step is known as the Wazribu Hunna. However, Quran advises that even if the third step fails, the fourth step of ‘arbitration’ must be followed. In this step, a member from each of the spouses’ family is present and the parties try to make amends in the strained relationship.

It is only after all these four steps have failed that a husband pronounces the first talaq. The husband has to compulsorily wait for a wife’s iddah (menses) to complete before pronouncing another talaq. Not more than two talaqs can be pronounced during the course of iddah. Iddahs are considered to be the three monthly courses.

  1. Instant Talaq: History of Opposition

Instant Talaq is something which has its genesis is women being divorced through SMS or over a mere phone call. This instant talaq is essentially ‘Talaq-ul-bidat or Talaq-e-biddah’. ‘Biddah’ means innovation and essentially all Muslims are advised against introducing ‘biddahs’ in their religion. This practice of talaq was first promoted by Caliph Umar, and is staunchly opposed by all the petitioners who have approached the Supreme Court for a reform in the case of triple talaq.

  1. Instant Divorce Banned in 20 countries

The practice of instant divorce is already banned in 20 Muslim-majority countries, including Pakistan. Pakistan in 1961 passed the Muslim Family Laws Ordinance which states if a man wishes to divorce his wife, talaq needs to be pronounced and the state gives a written notice and an arbitration council follows. If individuals try to bypass the legislation, they will have to face imprisonment. Morocco is another country where a major population is Muslim.

The Moudawana or Moroccan Family Code was passed in 2004. This code put the husband and wife on the same footing, prohibiting the unilateral pronouncement of divorce except when it is under supervision. Like this country, Algeria, Indonesia, Iran and Tunisia have similar legislations that do not recognise divorce granted by the husband unilaterally. The aim is to compel parties to resort to the court of law. In Pakistan and Bangladesh, talaq ul bidat was banned in 1961. In Algeria, divorce can be established by a court. Malaysia requests court or qazi mediation before divorce is granted.

Countries that do not follow instant divorce

Cyprus, Syria, Jordan, Egypt, Tunisia, Algeria, Iraq, Indonesia, UAE, Brunei, Malaysia, Iran, Turkey, Sri Lanka, Bangladesh, Pakistan

  1. Triple Talaq: The Social Implications

On 22 August 2017, the Indian Supreme Court struck down instant triple talaq (talaq-e-biddat) and termed it unconstitutional. Three judges on the five judge Constitution bench decided against triple talaq while two ruled in favour. Following triple talaq, the recommended practice, has a waiting period was required before each pronouncement of talaq, during which reconciliation is attempted. However, it had become common to make all three pronouncements in one sitting. While the practice was frowned upon, it was not prohibited. A divorced woman might not remarry her divorced husband unless she first married another man, a practice called Nikah Halala.

  1. Multi Faith Bench Decides

A multi-faith bench heard the controversial Triple Talaq case in 2017. Though 2 judges upheld validity of Triple Talaq (Talaq-e-Biddah), the three other judges held that it was unconstitutional, thus barring the practice by 3:2 majority. The bench asked the Central government to promulgate legislation within six months to govern marriage and divorce in the Muslim community. The court said that until the government formulates a law regarding Triple Talaq, there would be an injunction against husbands pronouncing triple talaq on their wives. The sensitive issue is being heard by a multi-faith bench made up of five judges–a Hindu, a Sikh, a Christian, a Zoroastrian and one Muslim. The bench combined several petitions from Muslim women and rights groups into one to examine the issue.

Concerns Controversy and Critical Analysis Conclusion in Bullet Points*

1 This Bill disregards the fact that its very objective -- to protect the rights of married Muslim women and prohibit divorce by pronouncing 'talaq' by their husband -- has already been achieved by the judgment of the Supreme Court.

  1. The Supreme Court in Shayara Bano's case held that the practice of 'talaq-e-biddat' is manifestly arbitrary, and therefore, unconstitutional. An act that has no legal consequences being made a criminal offence, cognisable and non-bailable is manifestly arbitrary and therefore, violative of Article 14.
  2. There is no rationale to criminalise the practice of talaq-e-biddat and imprison Muslim men. The effect of the Supreme Court's judgment is that the marriage is legally valid and the persons continue to be lawfully wedded.

Now, the Muslim men will be incarcerated, thus violating the rights of conjugality of these two persons.

Criminalising the husband would also lead to unwanted separation between the couple, against the wishes of the wife.

  1. Since Muslim marriage is a civil contract between two adult persons, the procedures to be followed on its breakdown should also be of civil nature.

Penal action to discourage the practice of instant triple talaq is a myopic view as it leaves many other issues of economic and social security of women unaddressed.

  1. The government should strengthen the negotiating capacities of women by providing them economic and socio-legal support rather than criminalising the pronouncement of triple talaq.
  2. The pronouncement of triple talaq having no legal consequences on the marriage means that such a proclamation by a Muslim man is essentially a desertion of the wife.

In any of the Personal Laws, the desertion of wife by a man is not a criminal offence. Therefore, while the Bill aims to criminalise the pronouncement of talaq, in effect, it is only criminalising the act of desertion of a Muslim wife by her husband.

Criminalising desertion by Muslim men, which constitutes only a civil offence for men of all other religions, is discriminatory under the Constitution.

  1. If there is violence within the marriage in addition to the pronouncement of triple talaq, the woman could use the existing provisions of the Protection of Women from Domestic Violence Act, 2005 and Section 498A of the Indian Penal Code.

These two laws, taken together, represent a wide spectrum of legal options available for women survivors of domestic violence, encompassing both criminal and civil provisions.

  1. No economic and socio-legal support is provided by the government in the Bill to women, children and other dependents, when the erring men are put behind bars.

The Domestic Violence Act, 2005 under Section 21 already provides for the aggrieved woman to be provided custody of the child and Section 20 provides for maintenance to be paid to her.

Section 125 of the Code of Criminal Procedure, 1973 also provides for maintenance for the aggrieved woman.

In fact, the Bill takes a step back in only providing for subsistence allowance for the woman. Subsistence allowance is not defined and is open to interpretation.

  1. The Bill allows for the aggrieved woman as well as anyone related to her by blood or marriage to be the complainant.

There is no provision for a relative to seek the consent of an aggrieved woman before filing a complaint.

The problem becomes particularly acute in the case of inter-religious marriages of Muslim men with a woman of another religion.

  1. The terms of imprisonment up to three years is arbitrary and excessive. Serious crimes like Causing death by rash or negligent act (IPC Sec 304A), Rioting (IPC Sec 147), Injuring or defiling place of worship with intent to insult the religion of any class (IPC Sec 295) -- all punishable by two years in jail or fine or both.All these criminal acts have lesser punishment than pronouncing triple talaq, which is arbitrary and excessive, and violative of Article 14 of the Constitution. The statement was signed by 40 activists and women's groups, including Ayesha Kidwai of Jawaharlal Nehru University, Kavita Krishnan of All India Progressive Women's Association (AIPWA), Shabanam Hashmi, Anhad and groups like Bebaak Collective, National Alliance of People's Movements (NAPM), Humsafar Support Centre, Kashmir women's collective, Mahila Sarvangeen Utkarsh Mandal (MASUM), People's Union for Civil Liberties (PUCL), Women's Research & Action Group among others.The Lok Sabha on passed the Bill which criminalises the practice of instant triple talaq, with the government rejecting the contention that it was aimed at targeting a particular community......

The writer can be reached at mirsheeba519@gmail.com

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