TRIPLE TALAQ BANNED, “HISTORIC JUSTICE DAY, 30 JULY 2019”


“Is it fair for a man to say “Talaq” thrice over the phone and a Muslim woman’s life gets ruined? This issue shouldn’t be politicized.”

- NARENDRA MODI


Introduction

Is it right to punish women with words who didn’t commit a crime? 30 July 2019, is a historic day for Muslim women because the Triple Talaq Bill was successfully passed by the Indian Parliament as a Law to abolish the practice of Triple Talaq in India. It should have been passed by Parliament in 2002 When its first case came up in India. But then no one raised much voice against it, and in 2017, two Muslim feminist groups raised their voice for the abolition of Triple Talaq. One was Bebaak Collective, a prominent women’s campaign led by Hasina Khan. The other one was the Bhartiya Muslim Mahila Andolan (BMMA). Both demanded the abolition of the practice of Triple Talaq, so it was finally banned in 2019. I have discussed in this article why it was banned and what was it? In my opinion, everyone should know about it. In India, all religions have certain rules and regulations which are followed by individuals. Muslims also have such rules and regulations and one of them was Triple Talaq. Now the first question arises in mind that,


What is a Triple Talaq?

Triple Talaq is a ‘Divorce system’ that is used by Indian Muslims and folks from varied nations who believe in Islam. This divorce system provides the liberty to husband out of the affair of the wedding eventually or forthwith. In this divorce system, the husband ends his marriage simply by uttering the word Talaq 3 times to his wife. Talaq is an associate Muslim term that means the dissolution of a marriage. Once being it’s spoken by the husband the marriage stands to void.

Triple Talaq permits a Muslim man to wrongfully divorce his married wife by using the word talaq. And the husband doesn't have to be compelled to cite a reason for divorce. It is applicable in each sort, verbal and written. This type of instant divorce is additionally known as Talaq-E-BIDDAT. There are different types of Talaqs in the Muslim community which they use for the dissolution of a marriage.


Types of Talaq:

1) Talaq-E-BIDDAT

2) Talaq-E-SUNNAT, it is sub-divided into

(a) Talaq-E-HASAN (b) Talaq-E-AHSAN

Talaq-E-HASAN: Most of the Indian Muslims prefer to use Talaq-E-HASAN, in this type of talaq the word talaq is pronounced three times after the menstrual cycle. The husband has to make a declaration of talaq, and then wait for the menstrual cycle to pronounce another pronouncement. The first and second pronunciation may be canceled by the husband if he cancels, either explicitly or by resuming conjugated relations, the talaq becomes ineffective. But if no repeal is made after the first or second declaration, then the husband must make the third declaration in the third term so that the talaq becomes irreversible and the marriage is dissolved.

Talaq-E-AHSAN: In this type of Talaq, once the Talaq has been pronounced by the husband, then there is an iddat period of three months to factor in the woman's three menstrual cycles. This time is for reconciliation and mediation. During this period, if there is any type of coitus between husband and wife, the talaq is considered to be void.

Talaq-E-BIDDAT: It is completely different. It allows men to pronounce talaq three times in one sitting, it is applicable in each sort, verbal and written. Thereafter even if the husband is in a hurry to consider his own decision, the divorce remains irreversible. There is no time given for mutual settlement. And a divorced woman could not remarry her divorced husband unless she first married to another man, this practice called Nikah Halala.


Triple Talaq Bill

In 2017 Muslim women, Bebaak Collective a prominent women’s campaign, and Bhartiya Muslim Mahila Andolan raised their voices in front of the Central Government and demanded to abolish the practice of Triple Talaq immediately. I think they were all inspired by Robert Tew’s quote “The struggle you're in today is developing the strength you need for tomorrow. Don't give up.” And from then on, the central government began to find a solution to the problem. The Government formulated a bill and introduced the bill in the Parliament after the 100 cases of Triple Talaq in India. On, 17 August 2017 in the case of Shayara Bano Vs Union of India & Ors. The Supreme Court of India described Triple Talaq as unconstitutional and many social, religious, and legal observations were also brought against the practice of Triple Talaq. This was the first victory of Muslim women and all support groups.

The male population of Islamic culture had made much noise against the Supreme court’s order. Even after the Order of the Supreme court, it was being used by Indian Muslims. Indian women are facing persecution from the olden times and after the judgment was given by the Supreme Court, they faced more persecution. And based on this, Triple Talaq Bill had been immediately introduced in the Indian parliament to void the practices of Triple Talaq. The bill was passed by Lok Sabha on 28 Dec 2018 and after getting the presidential assent the Bill declared the practice of Triple Talaq as a cognizable and non-bailable offense and maximum three years sentence and fine. A husband declaring talaq thrice will be imprisoned for up to three years along with a fine. This was the second victory, But the bill was only passed by the Lok Sabha and no one took it seriously and to make it in law, the bill replaced an ordinance promulgated on February 21, 2019, and the Rajya Sabha passed the Bill, with 99 votes in its favor and 84 against it. And it was finally passed by the Indian parliament as a law on 30th July 2019. That’s why 30 July 2019 is now a historic day for Indian Muslim women, and they finally achieved what they want. And from 01st august 2019, it had become a law, and Clause 3 in Chapter 2 of the Bill declares that Triple Talaq given in the form of verbal, written and digital or any form, deems to be void and it is illegal to practice. And Clause 6 in Chapter 3 of the Bill states that a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.

Consistent with the census 2011 Triple Talaq divorce procedure affected around 8% of Indian ladies, particularly ladies over the age of sixty years. Triple talaq does not follow the basic Rule of Gender Equality and Human Rights. As a result of this, questions are always arising in the dignity of Muslim ladies. Triple Talaq has no mention in the Quran however it's legal in Sunni Islamic jurisprudence, albeit the practice has existed for decades.


A Landmark case in which Triple Talaq declared as Unconstitutional

Shayara Bano Vs Union of India & Ors

Case Description:

A Constitution Bench of 5 Judges has declared the practice of instantaneous Triple Talaq as unconstitutional with a majority of 3:2.

Issues Involved as follow:

1. Does the practice of Triple Talaq (Talaq-e-biddat) is an essential practice of Islam?

2. Does the practice of Triple Talaq violate any fundamental right?

Background of the Case:

On 22nd August 2017, the Bench of 5 Judges from different religions- Justice UU Lalit, a Hindu and Justice Abdul Nazeer, a Muslim, Chief Justice Khehar, a Sikh and Justice Kurian Joseph, a Catholic, Justice RF Nariman, a Parsi of the Supreme Court pronounced its decision in the Triple Talaq Case. Bench declared the practice of instant Triple Talaq as unconstitutional with a majority of 3:2. Rizwan Ahmed has married to Shayara Bano 15 years ago. In 2016, Rizwan Ahmed divorced Shayara Bano through the instant Triple Talaq (Talaq-e-biddat). She filed a Writ Petition (C) No. 118 in the Supreme Court of three practices- Nikah-Halala, Talaq-e-biddat, and Polygamy as unconstitutional as these practices violate the Article 14, 15(1), 21, 25 of the Constitution. Talaq-e-Biddat is a practice that gives a man the right to divorce his wife by pronouncing Talaq thrice at a time without the consent of his wife. Polygamy is a practice that allows Muslim men to have more than one wife. And Nikah halala is a practice in which a divorced woman who wishes to remarry her divorced husband must marry and divorce a second husband before returning to her first husband.

On 16th February 2017, the Supreme Court asked Shayara Bano, Union of India and various women’s rights bodies and the All India Muslim Personal Law Board (AIMPLB) to give the written submissions on the issues of Talaq-e- biddat, Nikah-Halala, and Polygamy. The Union of India and the Women’s rights organizations supported Ms. Bano’s plea. The All India Muslim Personal Law Board has argued that these are essential practices of the Islamic religion and protected under Article 25 of the Constitution. After accepting Shayara Bano’s petition, the Supreme Court formed a constitutional bench of 5-judge from different religions on 30th March 2017. On 11th May 2017, the first hearing was held. On 22nd August 2017, the 5 Judge Bench declared the practice of Triple Talaq as unconstitutional with a majority of 3:2. The Supreme Court had mentioned herein that the Muslim Personal Law (Shariat) Application Act, 1937 was enacted to awaken associate finish all the unholy, oppressive, and discriminatory customs and usages within the Muslim community.


What Muslim personal law says?

Indian Muslims have been following the Muslim Personal Law (Shariat) Application Act, 1937 from decades. This law deals with Marriage, Succession, Inheritance, and Charities among Muslims. Section 5 of the Shariat Act, 1937 concerns Muslim women seeking a divorce. Later, Section 5 was repealed and replaced by the Dissolution of Muslim Marriages Act 1939. Now Muslim women can ask for a divorce in a court of law. The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in which a Muslim woman can obtain a divorce. A woman can seek divorce under the following circumstances: -

· If a husband has more than one wife, or he does not treat her equally according to the Quran,

· or bears any other grounds valid for the dissolution of marriages under Muslim law.

So, what has Shamim Ara vs State of U.P. & Ors case given us on 1 October 2002?

Shamim Ara Judgement is the first case that wants to ban the practice of Triple Talaq. But this case failed to make that happen but Shayara Bano Vs Union of India & Ors did that. But Shamim Ara vs State of U.P & Ors makes it clear that Talaq giving by a letter, WhatsApp, skype, phone and text messages or email or through the Qazi, etc. isn't valid. The judgment also laid down the subsequent procedure for a Muslim husband to divorce his wife:

· Talaq has to be pronounced before witnesses. It cannot be pronounced in a single sitting and must be preceded by efforts of arbitration and reconciliation by mediators appointed by both sides, who must explore the possibility of reconciliation by resolving the issues. Only if these cannot be resolved, then talaq should be recited as a last resort.

· The talaq is to be pronounced on three sittings over three months. These months are meant to allow the couple to reflect on their relationship and not come to a hasty conclusion. During this period, the woman has the right to residence and maintenance from the husband.

· While reciting the talaq, the husband must be in his senses i.e. He should not be drunk nor in an angry mental state, because during that time he loses his sense of right and wrong.

· A woman should not be menstruating or pregnant while pronouncing talaq. Before pronouncing the talaq, the husband must fulfill his obligations to his wife, such as returning the Mehr and goods, paying her maintenance for the iddat period (three months), and lumping her in for her future needs.

· In terms of allowance, a Muslim woman is entitled to seek allowance from her husband for herself and her dependent children. In case there is cohabitation during this time, the Talaq would be invalid. If the husband fails to comply with his economic obligations, the wife can file for relief under the extent of the Muslim Women (Protection of Rights on Divorce) Act 1986 (MWA).


After Ban on Triple Talaq

In India, cases have appeared in courts against Triple Talaq, in which Muslim husbands have divorced their wives by giving a letter, WhatsApp, skype, phone, and text messages of ‘Talaq’ thrice to their wives. These types of cases made their ways to the courts. Under section 4 of The Muslim Women (Protection of Rights on Marriage) Act 2019 these cases were registered. We tend to cheer the Supreme Court’s judgment in Shayara Bano Vs Union of India & Ors in which the practice of Triple Talaq declared as unconstitutional. However, in Gujarat one woman attempted suicide, her husband divorced her by uttering Triple Talaq even after the bill was passed in the Parliament, she was admitted to a hospital in Ahmedabad. She survived; this incident happened a day after when the Rajya Sabha passed the historic Muslim women (Protection of Rights on Marriage), Bill. I do not understand from where these guys get this type of guts to punish some innocent and ruin their life.

The triple talaq in the Muslim community is now a criminal offense that will invite 3 years of imprisonment. The radicals used a nationwide campaign to whitewash non-public law issues - to protect Shariat, not women's dignity. The All Republic of India Muslim Personal Law Board (AIMPLB) had also secured a social boycott of men, who were resorting to triple talaq and contemporary Nikahnama, though none have so far supported it, On the other hand, the government tried to increase the support of Muslim women against the criminalization of Muslim men. Public campaigns such as Beti Bachao have been used to protect girls and women, especially the oppressed Muslim women from persecutions.


Conclusion

Oscar Wilde said, “Women have a much better time than men in this world; there are far more things forbidden to them.” Getting respect is the fundamental right of every person. The abolition of the triple talaq means that in the future no Muslim woman will face discrimination and injustice in their lives. The practice of triple talaq has always been seen by the entire world as an argument, the dignity of Muslim women is always questioned. It had been seen the dominance of men over women. There are some countries like Pakistan, Indonesia, Turkey which have stopped the practice of triple talaq. Even in progressive circles, there is a belief that a Muslim man can divorce his wife and after that, she is free from any right. Some women were brutalized in their marriages and are happy to accept Talaq to be free from an oppressive marriage. The whole home is relying on women, she is someone’s mother, sister, and wife in the family. She puts the house together, takes care of everyone within the family, but that does not mean she is a maid of the house. Is it right to treat her in a discriminative way? I realize that the majority of women are reluctant to approach the police and Media. They seek a life free of violence and want to secure their right to maintenance and support.


Authored by

Suraj Vithal Parit

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