Author: Gauri Kapoor, III year of B.A.,LL.B. from Delhi Metropolitan Education, GGSIPU.
Co-author: Unnatti Kanyal, III year of B.A.,LL.B. from Delhi Metropolitan Education, GGSIPU.
"What is sinful under religion cannot be valid under law" as quoted by Justice Kurian Joseph, Justice Rohington Nariman and Justice UU Lalit rightly brings out contradictions between religious ideologies and legal validity.
INTRODUCTION OF TRIPLE TALAQ OR INSTANT TRIPLE TALAQ
On July 30, 2019, the Indian Parliament passed the “Triple Talaq (also known as Muslim Women (Protection of Rights on Marriage) Bill, 2019)” into law, making instant Triple Talaq a crime.
The Bill was approved by the Rajya Sabha with 99 votes in favor and 84 votes against it.” According to the Triple Talaq law, a Muslim man who commits the crime faces a three-year prison sentence.The law also designates Triple Talaq as a crime with no bail requirement. The Bill, which “Ravi Shankar Prasad, Minister of Law and Justice, introduced in the Lok Sabha on June 21, 2019”, replaced an Ordinance that had been published on February 21, 2019.
When “the husband” says the word "Talaq three times” in a row, “the marriage is dissolved in an instantaneous and irrevocable manner. This method of divorce was known as Triple Talaq, also known as Talaq-E-Biddat. The announcement could be made orally, in writing, electronically—by phone, SMS, email, or even social media—in recent years. It is one of the various types of divorce that the Shariah Law permits. The husband did not have to give a reason for the divorce, and she was not required to be present when it was announced. In this kind of divorce, the wife has no legal right to inquire into the motivations behind the Talaq or to receive any kind of justification.
WHAT TECHNIQUES WERE USED?
Initially, a waiting period was required before each proclamation of "talaq" as the advised practice. The husband and wife attempted/considered reconciliation during this time. But later it became customary to deliver all three proclamations simultaneously.
Even though it was discouraged, making snap decisions was not illegal.
“When there is marital conflict, the Quran advises the husband to try to reason (fa'izu hunna) with his wife through conversations as a first step. The husband is directed, as a third step, to again explain to his wife the gravity of the situation and to warn her that it can become public knowledge and may not be in the interest of both parties. If discrepancies persist, they should abstain from any conjugal acts until they settle their dispute; if even this fails.” Additionally, the Quran suggests taking the fourth step of "arbitration" if even the third step fails as a precaution. A representative from each spouse's family is present in this step as the parties attempt to mend their complicated relationship.
A husband does not proclaim the first talaq until all four steps have failed. The husband must wait until the end of the wife's iddah (menses) before announcing the talaq. The third talaq cannot be given by a man during the three-month cycles.[1]
HISTORY OF SHARIA LAW
Muslims regard the Sharia as sacred because Allah created it. Between the time of Muhammad's death”in the seventh century and the 10th century, numerous“Islamic legal” scholars made an effort “to interpret the Sharia and modify it to fit the needs of the growing Muslim Empire”. A significant portion of Islam's golden age was represented by the traditional Sharia of the 10th century. Since then, the Sharia has been continuously redefined and adjusted to new situations and problems. The effects of Western colonialism led to attempts to codify it in the present society.[2]
TALAQ AS PRESCRIBED UNDER QURAN
The Holy Quran states, “Divorce, or talaq, is regarded as a sin that Allah does not forgive, and it is abundantly clear from the Quran that Allah forbids divorce and promotes the continuation of marriage.”
WHAT IS TRIPLE TALAQ?
The act of divorcing a spouse in Islam is called triple talaq (also known as talaq-e-biddat) and involves speaking the word talaq three times. The woman is not obligated to attend when the talaq is spoken, nor does the male have to provide a reason for the divorce.
The laws governing divorce were historically established by the Sharia, as understood by traditional Islamic jurisprudence, however they varied depending on the legal school. Whenever individual status (family) law was modified. Despite the state assuming charge of the traditional jurists' power over divorce rules, they remained essentially under the control of Islamic law.
A 1400-year-old Sunni Muslim tradition is the triple talaq. The Quran and Sharia law don't make any reference to this. According to the Quran, which stipulates that marriage is designed to be unbounded in time, the bond between the couples should ideally be based on love, and key choices affecting both spouses should be made by mutual consent.
The gender inequality of those practises that existed in pre-Islamic Arabia was modified by the Quran, even though some authoritarian characteristics and other divorce rituals continued and thrived in ensuing years. Before the rise of Islam, divorce in the Arab world was governed by unwritten customary law that varied by region and tribe and was predicated on the agreement of the individuals involved.
Traditional jurists generally viewed the pronouncement of talaq as forbidden and repugnant unless it was motivated by a convincing reason, such as the impossibility of cohabitation due to inherent contradiction, even though they did not demand the husband to obtain court approval or provide a justification. A valid repudiation had to be given freely and without pressure, for example, according to the judge's restrictions on what comprised a valid repudiation.
The wife has the right to collect the entire sum upon Talaq if Mahr has not already been paid.
If she is expecting, her husband is obligated to help her until the end of the waiting time or until she delivers birth, whichever comes first. She is also eligible to support payments and any back alimony, which must be paid on a monthly basis all through the marriage in accordance with Islamic law. You can use the expression "you are Haram for me" or a different formulation like "Triple Talaq," which is the Talaq pronoun said three to four times.
APPEAL FOR THE BAN OF TRIPLE TALAQ
Muslim women have called for the outlawing of the abhorrent Triple Talaq practice for a very long time. In a letter, Shayara Bano, a woman from Uttarakhand, received the instant triple talaq from her husband, terminating their 14-year union. Her husband and his family had physically and mentally victimised her because she had refused to pay the dowry they had demanded. She was also denied custody of her two children by her spouse. Shayara Bano argued that this practice is discriminatory and disrespectful to women's dignity when she challenged it before the Supreme Court.
COMMENTS MADE BY OTHER COUNTRIES
It goes without saying that “talaq-i-bidat” has wreaked havoc on the lives of several women and kids. Without any chance for settlement, this method of divorce has drawn criticism in a number of Muslim nations, leading to reform through codification. A number of nations, including “Turkey”, “Tunisia”, “Syria”, “Egypt”, “Morocco”, “Iran”, “Iraq”, “Malaysia”,” Indonesia”, and “Pakistan”, have either entirely altered their legal systems or implemented strong preventative measures. India must change its family laws if Muslim countries can. The initiative is coming from Muslim nations, thus it is anticipated that eventually India will employ the same processes, according to Judge Hidayatullah.
BACKGROUND
Shayara Bano, a resident of Uttaranchal, filed a case with the Supreme Court in 2015 asking it to ban the custom after her husband ended their 15-year marriage with a letter that used the word "talaq" three times. In her appeal, she seeks the Supreme Court to declare talaq-e-bidat, nikah halala, and polygamy to be prohibited by the Constitution since they violate the rights guaranteed by the Constitution's Articles 14, 15, and 21 and 25.
To determine whether adultery and arbitrary dissociation violate women's dignity, the SC only filed a "suo motu PIL petition" titled "In Re: Muslim Women's Fight for Equality" in 2015.
Over the ensuing months, numerous other ladies gathered with their petitions. According to the 1937 Sharia Act, women are unable to pronounce triple talaq and must file a court petition to obtain a divorce.
THE CONSTITUTION OF INDIA AND TRIPLE TALAQ[3]
1. Religious freedom is guaranteed by “Article 25 of the Constitution” as Freedom of Belief & Promotion of “Religion”.
2. It is subject to limitations, just like every other Fundamental Right, and it does not safeguard religious practices that might jeopardize public welfare.
3. Because triple talaq denies a Muslim woman's equality before the law”, Article 14 supersedes Article 25 and ensures her right to equality.
4. The State” "must not discriminate against any citizen on the basis only of religion, race, caste, or sex," according to Article 15 (1), which also applies to Article 25. Triple talaq is against the Constitution's Article 15 (1) because it does not benefit women.
5. Triple talaq is now covered by Article 13 of the Constitution thanks to Section 2 of the Muslim Personal Law (Shariat) Application Act of 1937, which recognises it as a legal right. Article 13 defines "law" and states that all laws, whether they were created before or after the Constitution, must not violate fundamental rights.
TRIPLE TALAQ AS A LEGISLATIVE RIGHT[4]
In accordance with Section 2 of the Muslim Personal Law (Shariat Application Act) of 1937, triple talaq is already acknowledged as a legal right. Instant talaq is no longer a personal law immune from the requirements of fundamental rights because it is now governed by Article 13 of the Constitution. According to Article 13, no law, whether it was created before or after the Constitution, may violate basic rights.
FORMER SUPREME COURT DECISIONS
In the “Shah Bano Case (1985)”, the Honorable Presiding judges pronounced to grant “62-year-old” “Shah Bano the right to child support payments from her husband by using a statutory requirement under the Criminal Process Code, 1973, a law for repayment that is to be supplied by the husband as maintenance to his divorced wife. The federal government at the time passed the “Muslim Women (Protection of Rights on Divorce) Act, 1986” in an effort to lessen the impact of the Shah Bano Case ruling.
“In June 2016, the Supreme Court made the decision to investigate” if and to what extent Islamic legacy and marriage customs violate female's fundamental rights.
LATEST HIGH COURT DECISION
On “22nd August 2017, a “five-judge” seat of the High Court in a split decision decided that the act of moment “triple talaq in the Muslim” people group is unlawful. By a 3:2 vote, the bench declared the practice over.
RECENT JUDGMENTS
Following the Shayara Bano v. Union of India case, it was decided in the case of "Shaik Jareena v. Shaik Dariyavali" that the triple talaq position should be retroactively applied following the Shayara Bano case.
In “Shaik Jareena v. Shaik Dariyavali (CIVIL REVISION PETITION No. 2477 of 2019)”[5], the “Andhra Pradesh High Court” issued an order on Jan 5, 2023, casting aside the trial court's decision and holding that “husband's” request for a declaration of divorce” by triple talak should indeed be applied retroactively in light of Shayra Bano, where the Supreme Court ruled that triple talak is constitutionally valid.
CONCLUSION
Respect is everyone’s basic right. One of the most important epilogues” to be drawn from the repeal of the” triple talaq” law is “that no Muslim will face such prejudice and unjust” in their future living. The passage of the triple talaq bill in the parliament is a right step to ensure social justice for Muslim women. The latest rule is really encouraging the women empowerment movement in India. The court dealt with intensifying personal rights in society.
[1] Triple Talaq:End of an Era, netlawman, (March 27, 2023, 1:28PM) https://www.netlawman.co.in/ia/talaq [2] The origins of Islamic Law, constitutionalrightsfoundation, (March 27, 2023, 2:20PM) https://www.crf-usa.org/bill-of-rights-in-action/bria-15-1-a-the-origins-of-islamic-law [3] TRIPLE TALAQ: THE INDIAN CONSTITUTION R.GATTAIAH L.L.M. (Student) Osmania University, Hyderabad,(March 28, 2023, 7:50), https://ijcrt.org/papers/IJCRT1704301.pdf. [4] Triple talaq: India Muslim women in limbo after instant divorce ruling, Published14 September 2022 (March 28, 2023, 7:58PM), https://www.bbc.com/news/world-asia-india-62805107. [5] Shaik Jareena v. Shaik Dariyavali (CIVIL REVISION PETITION No.2477 of 2019),(March 28, 2023, 7:45PM) https://primelegal.in/2023/03/06/the-supreme-court-judgment-on-triple-talak-applies-retrospectively-andhra-pradesh-high-court/