Triple talaq in India

Triple Talaq, also known as talaq-e-biddat, instant divorce[1] and talaq-e-mughallazah (irrevocable divorce),[2] is a form of Islamic divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence.[3][4] It allows any Muslim man to legally divorce his wife by stating the word talaq (the Arabic word for "divorce") three times in oral, written, or more recently, electronic form.

The use and status of triple talaq in India has been a subject of controversy and debate. Those questioning the practice have raised issues of justice, gender equality, human rights and secularism. The debate has involved the Government of India and the Supreme Court of India, and is connected to the debate about a uniform civil code (Article 44) in India.[5] On 22 August 2017, the Indian Supreme Court deemed instant triple talaq (talaq-e-biddah) unconstitutional.[6][7][8] Three of the five judges in the panel concurred that the practice of triple talaq is unconstitutional.[9] The remaining two declared the practice to be constitutional while simultaneously asking the government to ban the practice by enacting a law.[10]

The Modi Government formulated a bill called The Muslim Women (Protection of Rights on Marriage) Bill, 2017 and introduced it in the Parliament which was passed on 28 December 2017 by the Lok Sabha.[11] The bill makes instant triple talaq (talaq-e-biddah) in any form — spoken, in writing or by electronic means such as email, SMS and WhatsApp illegal and void, with up to three years in jail for the husband. MPs from RJD, AIMIM, BJD, AIADMK and AIML opposed the bill, calling it arbitrary in nature and a faulty proposal, while Congress supported the Bill tabled in Lok Sabha by law minister Ravi Shankar Prasad.[12][13]

Practice

Triple talaq is a form of divorce that was practised in India, whereby a Muslim man could legally divorce his wife by pronouncing talaq (the Arabic word for divorce) three times. The pronouncement could be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or social media. The man did not need to cite any cause for the divorce and the wife need not have been present at the time of pronouncement. After a period of iddat, during which it was ascertained whether the wife is pregnant, the divorce became irrevocable.[14][15] In the recommended practice, a waiting period was required before each pronouncement of talaq, during which reconciliation was attempted. However, it had become common to make all three pronouncements in one sitting. While the practice was frowned upon, it was not prohibited.[16] A divorced woman could not remarry her divorced husband unless she first married another man, a practice called nikah halala. Until she remarried, she retained the custody of male toddlers and prepubescent female children. Beyond those restrictions, the children came under the guardianship of the father.[15]

Triple talaq is a 1,400 year-old practice among Sunni Muslims.[17] It is "manifestly arbitrary" and allows a man to "break down [a] marriage whimsically and capriciously”.[18]

Triple talaq as a practice is not mentioned in the Quran or Sharia law. It is also largely disapproved by Muslim legal scholars. Several Islamic countries, including Pakistan and Bangladesh, have banned it, although it is technically legal in Sunni Islamic jurisprudence. Triple talaq, in Islamic law, is based upon the belief that the husband has the right to reject or dismiss his wife with good grounds.[19] If the wife wants to end her marriage and her husband does not agree to give a talaq, she has to comply with proceedings under the Dissolution of the Muslim Marriages Act. As far as Sharia is concerned she needs to obtain a release from the marriage bond by the husband agreeing to such, by granting a Khula, or if he refuses to seek the dissolution of the marriage (faskh) by order of a sharia court judge (qazi).

The All India Muslim Personal Law Board (AIMPLB), a non-governmental organisation, had told the Supreme Court that women could also pronounce triple talaq, and could execute nikahnamas that stipulated conditions so that the husbands could not pronounce triple talaq.[20] The practice of instant divorce is already banned in 22 Muslim-majority countries, including Pakistan.[21]

In September 2016, AIMPLB had filed an affidavit in the Supreme Court as a response to petitions by Shayara Bano and others who were opposing triple talaq. It stated that "Sharia grants right to divorce to husbands because men have greater power of decision-making." [22]

The government has set up a ministerial committee to consider a legislation to put an end to instantaneous triple talaq

Background

Muslim family affairs in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937 (often called the "Muslim Personal Law"). It was one of the first acts to be passed after the Government of India Act, 1935 became operational, introducing provincial autonomy and a form of dyarchy at the federal level. It replaced the so-called "Anglo-Mohammedan Law" previously operating for Muslims, and became binding on all of India's Muslims.[23][24]

The shariat is open to interpretation by the ulama (class of Muslim legal scholars). The ulama of Hanafi Sunnis considered this form of divorce binding, provided the pronouncement was made in front of Muslim witnesses and later confirmed by a sharia court. However, the ulama of Ahl-i Hadith, Twelver and Musta'li persuasions did not regard it as proper. Scholar Aparna Rao states that, in 2003, there was an active debate among the ulama.[15]

In traditional Islamic jurisprudence, triple talaq is considered to be a particularly disapproved, but legally valid, form of divorce.[25] Changing social conditions around the world have led to increasing dissatisfaction with traditional Islamic law of divorce since the early 20th century and various reforms have been undertaken in different countries.[26] Contrary to practices adopted in most Muslim-majority countries, Muslim couples in India are not required to register their marriage with civil authorities.[27] Muslim marriages in India are considered to be a private matter, unless the couple decided to register their marriage under the Special Marriage Act of 1954.[27] Owing to these historical factors, the checks that have been placed on the husband's unilateral right of divorce by governments of other countries and the prohibition of triple talaq were not implemented in India.[27]

Opposition

The practice faced opposition from Muslim women,[28] some of whom filed a public interest litigation in the Supreme Court against the practice, terming it "regressive".[29] The petitioners asked for section 2 of the Muslim Personal Law (Shariat) Application Act, 1937,[upper-alpha 1] to be scrapped, describing it as being against Article 14 of the Constitution (equality before law).[31]

On 13 May 2017, during the hearings before its final judgment, the Supreme Court described instant triple talaq as the "worst form of marriage dissolution". It noted that the custom is banned in the Muslim-majority countries of Saudi Arabia, Morocco, Afghanistan and Pakistan.[5][32]

On 8 December 2016, the Allahabad High Court observed in a ruling that the practice of instant triple talaq was unconstitutional and violated the rights of Muslim women.[33][34]

In March 2017, over 1 million Indian Muslims, a majority of whom were women, signed a petition to end instant triple talaq. The petition was started by the Muslim Rashtriya Manch, an Islamic organisation affiliated to the right wing Hindu nationalist organisation Rashtriya Swayamsevak Sangh.[35]

The petitioners against instant Triple talaq have given evidence showing how Instant Triple talaq is simply an innovation that does not have much to do with Quranic beliefs. This is supported by the interpretation of Quranic text by many Islamic scholars, historical evidence and legal precedent.[36]

On 10 May 2017, senior cleric Maulana Syed Shahabuddin Salafi Firdausi denounced triple talaq and nikah halala, calling them un-Islamic practices and instruments to oppress women.[37][38]

The practice was also opposed by Hindu nationalists and Muslim liberals.[39]

“Absence of consensus in Court makes it more difficult to forge consensus within communities. Glad that Court set aside a 'sinful' practice,” Congress leader Kapil Sibal tweeted. [40]

Support

Triple talaq has been supported by the All India Muslim Personal Law Board (AIMPLB), a non-governmental body that supervises the application of Muslim personal law. It propagates that the State does not have the right to intervene in religious matters. The AIMPLB’s lawyer Mr Kapil Sibal had said that though instant talaq can be thought of as a sin by some, but that "setting the validity of customs and practices of a community is a slippery slope". [41] Kapil Sibal cited Article 371A to state that even the Constitution does intend to protect matters of practice, tradition and customs of communities.[42]

The All India Muslim Personal Law Board (AIMPLB) defends the practice.[29] In April 2017, citing a report prepared by Muslim Mahila Research Kendra in co-ordination with Shariah Committee for Women, AIMPLB has claimed that Muslims have a lower rate of divorce compared to other religious communities, countering the argument that Muslims have the highest number of divorce in the country due to the practice of triple talaq. It also claimed that it had received forms from 35 million Muslim women across the country, supporting shariat and triple talaq.[43][44][45]

AIMPLB issued a code of conduct in April 2017 regarding talaq in response to the controversy over the practice of triple talaq. It also warned that those who divorce for reasons not prescribed under shariat will be socially boycotted in addition to calling for boycott of those who use triple talaq recklessly and without justification.[46] In addition, it also stated that it should be delivered in three sittings with a gap of at least one month each.[47]

Judgement

The case was called Shayara Bano v. Union of India & Others. [48] The bench that heard the controversial Triple talaq case in 2017 was made up of multifaith members. The five judges from five different communities are Chief Justice JS Khehar, a Sikh, Justices Kurian Joseph a Christian, RF Nariman a Parsi, UU Lalit a Hindu and Abdul Nazeer a Muslim. [49]

The Supreme Court has to examine whether Triple talaq has the protection of the constitution—if this practice is safeguarded by Article 25(1) in the constitution that guarantees all the fundamental right to “profess, practice and propagate religion”. The Court wants to establish whether or not Triple talaq is an essential feature of Islamic belief and practice. [50]

In a 397-page ruling, though two judges upheld validity of Instant triple talaq (talaq-e-biddat), the three other judges held that it was unconstitutional, thus barring the practice by 3–2 majority.[51][50][52] One judge argued that instant triple talaq violated Islamic law.[51] The bench asked the central government to promulgate legislation within six months to govern marriage and divorce in the Muslim community.[53] The court said that until the government formulates a law regarding instant triple talaq, there would be an injunction against husbands pronouncing Instant triple talaq on their wives.[54][55]

According to The Economist, "Constitutional experts said [the judges] legal reasoning fell short of upholding personal rights over religious laws", whilst noting "The judgment did not ban other forms of Muslim divorce that favour men, only the instant kind."[39]

The Muslim Women (Protection of Rights on Marriage) Bill, 2017

The Modi Government formulated a bill and introduced it in the Parliament after 100 cases of instant triple talaq in the country since the Supreme Court judgement in August 2017.[56] On 28 December 2017, Lok Sabha passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017.[57] The bill make instant triple talaq (talaq-e-biddah) in any form — spoken, in writing or by electronic means such as email, SMS and WhatsApp illegal and void, with up to three years in jail for the husband. MPs from RJD, AIMIM, BJD, AIADMK and AIML opposed the bill, calling it arbitrary in nature and a faulty proposal, while Congress supported the Bill tabled in Lok Sabha by law minister Ravi Shankar Prasad.[58][59] 19 amendments were moved in Lok Sabha but all were rejected.

See also

Notes and references

Notes

  1. ↑ Section 2 in The Muslim Personal Law (Shariat) Application Act, 1937 states about Application of Personal law to Muslims, "Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."[30]

References

  1. ↑ "Triple Talaq verdict: What exactly is instant divorce practice banned by court?". Hindustan Times. 2017-08-22. Retrieved 2017-09-18.
  2. ↑ Mohammed Siddique Patel. "The different methods of Islamic separation – Part 2: The different types of Talaq". www.familylaw.co.uk. Retrieved 2017-05-29.
  3. ↑ "Hanafi jurisprudence sanctions triple talaq".
  4. ↑ "Law, morality, triple talaq".
  5. 1 2 "Triple Talaq". The Times of India. 13 May 2017. Retrieved 2017-05-13.
  6. ↑ "The Triple Talaq Case - Supreme Court Observer". Supreme Court Observer. Retrieved 2018-02-27.
  7. ↑ "Supreme Court scraps instant triple talaq: Here's what you should know about the practice". Hindustan Times. 2017-08-22. Retrieved 2017-09-18.
  8. ↑ Pratap Bhanu Mehta (2017-08-23). "Small step, no giant leap". The Indian Express. Retrieved 2017-09-18.
  9. ↑ "Triple Talaq: Ban this un-Islamic practice and bring in a uniform civil code".
  10. ↑ "Triple talaq verdict LIVE updates: Jaitley says SC judgment a great victory and welcome step". The Indian Express.
  11. ↑ "Lok Sabha passes triple talaq bill".
  12. ↑ "Congress' backing of triple talaq bill indicates it's gradually withdrawing from Muslim appeasement politics".
  13. ↑ "Congress backs triple talaq bill, Khurshid strikes discordant note".
  14. ↑ Choudhury, (Mis)Appropriated Liberty (2008), pp. 72–73.
  15. 1 2 3 Rao, Kinship, Descent Systems and State – South Asia (2003), p. 341.
  16. ↑ Choudhury, (Mis)Appropriated Liberty (2008), p. 95.
  17. ↑ "SC strikes down 1400-year-old Islamic practice of Triple talaq". Outlook. 22 August 2017.
  18. ↑ "'Not part of Islam': 5 quotes from verdict banning Triple talaq". NDTV.
  19. ↑ "What is Triple talaq divorce? India rules against instant termination of marriage in win for women's rights". Newsweek.
  20. ↑ "Women can say triple talaq, Muslim law board tells Supreme Court". The Times of India. 17 May 2017.
  21. ↑ Stacey, Kiran (22 August 2017). "India supreme court bans Islamic 'instant divorce'". Financial Times.
  22. ↑ "Women can say Triple talaq, Muslim law board tells Supreme Court". Times of India. 17 May 2017.
  23. ↑ Mukhopadhyay, Construction of Gender Identity (1994), p. 61.
  24. ↑ Murshid, Inheritance: Contemporary Practice – South Asia (2003), p. 304.
  25. ↑ Esposito & Delong-Bas, Women in Muslim Family Law (2001), pp. 30–31.
  26. ↑ Schacht, J., and Layish, A. (2000). "Ṭalāḳ". In P. Bearman, Th. Bianquis, C. E. Bosworth, E. van Donzel, W. P. Heinrichs. Encyclopaedia of Islam. 10 (2nd ed.). Brill. p. 155.
  27. 1 2 3 Esposito & Delong-Bas, Women in Muslim Family Law (2001), pp. 111–112.
  28. ↑ "What India's liberals get wrong about women and sharia law".
  29. 1 2 "Muslim Personal Law Board to discuss Ayodhya dispute, triple talaq on Saturday", Hindustan Times, 14 April 2017
  30. ↑ "Section 2 in The Muslim Personal Law (Shariat) Application Act, 1937". Indian Kanoon. Retrieved 2017-08-23. This article incorporates text from this source, which is in the public domain.
  31. ↑ "Triple Talaq: Law panel studies practices of Muslim nations", The Times of India, 24 January 2017
  32. ↑ "Triple talaq undesirable, worst form of dissolution of marriage among Muslims: Supreme Court". India Today. Retrieved 2017-05-13.
  33. ↑ "Allahabad High Court calls triple talaq unconstitutional, says no personal law board is above Constitution". India Today. Retrieved 2017-04-21.
  34. ↑ Rashid, Omar. "'Triple talaq' a cruel and most demeaning form of divorce practised by Muslim community: HC". The Hindu. Retrieved 2017-04-21.
  35. ↑ CNN, Manveena Suri. "Triple talaq: 1 million Indian Muslims sign petition against divorce practice". CNN. Retrieved 2017-05-22.
  36. ↑ "The case against Triple talaq".
  37. ↑ "Muslim scholars support ban on triple talaq, polygamy". DNA. 10 May 2017. Retrieved 2017-06-06.
  38. ↑ "Cleric: Triple talaq is a mockery of Islam". The Times of India. 10 May 2017. Retrieved 2017-06-06.
  39. 1 2 "India bans a Muslim practice of instant divorce". 26 August 2017 – via The Economist.
  40. ↑ "Kapil Sibal epitomises oppositions dilemma on Triple talaq verdict". News18.
  41. ↑ "Kapil Sibal in court opposed ending Triple Talaq. His reaction to the ban". NDTV.
  42. ↑ "Women can say Triple talaq, Muslim law board tells Supreme Court". Times of India.
  43. ↑ "Muslims have lower divorce rate than other groups". The Times of India. Retrieved 2017-04-21.
  44. ↑ PTI. "Muslim community has a low rate of divorce". The Hindu. Retrieved 2017-04-21.
  45. ↑ "Divorce rate among Muslims low compared to other communities". India Today. Retrieved 2017-04-21.
  46. ↑ "Triple Talaq: All India Muslim Personal Law Board issues code of conduct; here's what it says". Penske Media Corporation.
  47. ↑ "All India Muslim Personal Law Board announces code of conduct for triple talaq". The New Indian Express.
  48. ↑ https://indiankanoon.org/doc/115701246/
  49. ↑ "Triple talaq validity case: All you need to know". The Times of India.
  50. 1 2 "Triple talaq verdict has not gone the entire distance". Livemint.
  51. 1 2 "Recent court rulings in India suggest justice is improving". The Economist. 31 Aug 2017.
  52. ↑ "Triple Talaq declared invalid by Supreme Court – Lexspeak". Lexspeak. 23 August 2017. Retrieved 2017-08-23.
  53. ↑ "Supreme Court declares triple talaq unconstitutional, strikes it down by 3:2 majority". The Times of India.
  54. ↑ "Injunction on husbands pronouncing triple talaq until law is made: SC advocate". Business Standard.
  55. ↑ "This Is What Supreme Court Said in Triple Talaq Judgment". /www.livelaw.in.
  56. ↑ "'100 cases of instant triple talaq in the country since the SC judgement'".
  57. ↑ "Lok Sabha passes triple talaq bill".
  58. ↑ "Congress' backing of triple talaq bill indicates it's gradually withdrawing from Muslim appeasement politics".
  59. ↑ "Congress backs triple talaq bill, Khurshid strikes discordant note".

Bibliography

  • Choudhury, Cyra Akila (2008), "(Mis)Appropriated Liberty: Identity, Gender Justice and Muslim Personal Law Reform in India", Columbia Journal of Gender & Law, 17 (1): 45–110
  • Esposito, John L.; DeLong-Bas, Natana J. (2001). Women in Muslim Family Law (2nd ed.). Syracuse University Press.
  • Joseph, Suad; Naǧmābādī, Afsāna (2003), Encyclopedia of Women and Islamic Cultures: Family, Law and Politics, BRILL, p. 341, ISBN 90-04-12818-2
    • Murshid, Tazeen Mahnaz (2003), "Inheritance: Contemporary Practice – South Asia", Ibid, p. 304
    • Rao, Aparna (2003), "Kinship, Descent Systems and State – South Asia", Ibid, p. 341
  • Mukhopadhyay, Maitrayee (August 1994), Construction of Gender Identity: Women, the State and Personal Laws in India, University of Sussex
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