TRIPLE TALAQ: FROM DAWN TO DUSK

TRIPLE TALAQ: FROM DAWN TO DUSK

Introduction

In India, the concept of Triple Talaq has covered a long journey. It was on 30th July, 2019 when, finally, the Triple Talaq Bill was passed by NDA Government with 84 in favour out of 99 votes. The bill has followed the judgment of Supreme Court in August of 2017, wherein the Triple Talaq was declared unconstitutional. The Muslim Women (Protection of Rights on Marriage) Act, 2019, was passed to penalize the act of Triple Talaq.

Previously, the Landmark Shah Bano Case drew Judiciary’s attention towards status of Muslim Women in the country. After more than three decades of aforesaid judgment the Shayara Bano Case came before the Apex Court, wherein the rights of women pertaining to Talaq were finally decided.

From being a valid type of Talaq, to being raised to its highest level of controversy and at the end, declared by SC as illegal and a punishable offence. This Article will provide you all the information starting from the Dawn to Dusk of Triple Talaq in a brief format.

Marriage in Muslim Law

In Muslim Law, marriage is considered to be a Civil Contract and like a civil contract it can also be repudiated. So, in view of the same, divorce i.e. talaq should be considered practically, but in reality it is of high emotional and personal consideration. Talaq in Muslim Law means setting free from the bondage of marriage. In Muslim Law, divorce is considered as an evil and also an exception to marriage.

Men under Muslim Law have right to give divorce of different kinds, such as Talaq-ul-Sunnat, Talaq-ul-Biddat, Ila, Zihar and Khyal-ul-bulugh. Among these types of talaq, Talaq-ul-Biddat is commonly known as triple talaq which is irrevocable.

What does Triple Talaq exactly mean?

Triple Talaq or Talaq-ul-Biddat is a form of talaq where the husband makes 3 pronouncements to give talaq whether in 3 sentences or in 1 sentence only. The essential condition regarding this form of talaq is that it must be made in a single ‘tuhr’ which means ‘the state of being pure.’ The state of purity in Muslim Law regarding women is considered when the woman is not on her menstruation cycle. Therefore, if a husband pronounces talaq three times to his wife during the time when she was menstruating, the talaq will not be considered valid and will have no effect.

There are various schools of Muslim Law and all recognize Talaq-ul-Biddat as a kind of talaq. Though, it is considered as an immoral form of talaq. A phrase was also used in reference to this form of talaq; ‘legally valid but sinful’ and the reason behind this is due to the fact that opportunity for reconciliation is lost but the talaq was still considered valid.

But this was the scenario before the landmark judgment on Triple Talaq by Supreme Court and The Muslim Women (Protection of Rights on Marriage) Act, 2019.

Triple Talaq Judgment

The case of Shayara Bano v. Union of India & Ors. [(2017) 9 SCC 1] is commonly known as the Triple Talaq case. It was the most awaited judgment of the Hon’ble Supreme Court. On 22nd August, 2017, SC pronounced its one of the most remarkable judgment regarding the validity of Triple Talaq. With this decision all controversies pertaining to Triple Talaq ceased to exist.

Brief Facts – The Petitioner was the wife Smt. Shayara Bano, who was divorced by his husband Sh. Rizwan Ahmad by Triple Talaq. Shayara Bano challenged the said divorce by his husband in the Court of law to be declared void and also Section 2 of the Shariat Act be also declared unconstitutional.

Contentions – The wife contended that this is in violation of fundamental rights such as Article 14, 15, 21, 25(1), 26(b) and 29 of the Indian Constitution. Also, it was submitted that the practice of Triple Talaq has been banned in many countries already. Further, it was provided that the Triple Talaq is not approved by the Quran and neither by Hadith.

Whereas the contentions of the husband on the other side provided that Hanafi School of Sunni Muslims recognizes the Triple Talaq as a valid form of talaq and in India, almost all Muslims are Sunni and therefore, are followers of Hanafi School.

Held – The judgment was pronounced by the ratio of 3:2 by the Supreme Court. Chief Justice of India, J. S. Khehar and J. Abdul Nazeer were of the view that the practice of Triple Talaq is constitutional and should not be banned. Whereas, the majority including J. Kurian Joseph, J. Rohinton F. Nariman and J. U. U. Lalit opined contrary to the above view. The Bench issued directions under Article 142 to draft appropriate legislations within the time span of 6 months and till the time the legislation to govern the area is passed, there was an injunction on muslim males in pronouncing Triple Talaq.

The Bill, 2017

The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was passed by Lok Sabha on 28th December, 2017. The Objectives of the Bill was to declare the Triple Talaq void and illegal as ruled by the SC and to make it a punishable offence. Section 3 of the Lok Sabha 2017 Bill provided that Talaq to be void and illegal.

After the Bill was passed after amendments in Lok Sabha, it was presented before Rajya Sabha. The main features after amendment included the provision of FIR. It was provided that FIR could be filed either by the wife herself or her immediate blood relative. It was compoundable offence, and the husband against whom the FIR is filed can be granted bail at the discretion of Magistrate.

Ordinance, 2018 and Bill, 2018

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 was promulgated by the President of India, Mr. Ram Nath Kovind on 19th September, 2018.

The Muslim Women (Protection of Rights on Marriage) Bill, 2018 was introduced for the purpose of replacing the Ordinance of 2018. The Bill was passed by the Lok Sabha on 27th December, 2018.

Triple Talaq Law

Triple Talaq Law is also known as The Muslim Women (Protection of Rights on Marriage) Act, 2019. The Act was passed by the Rajya Sabha on 30th July, 2019. The Act is passed in view of the directions by the SC to ban the practice of Triple Talaq in the country.

The Act criminalized Triple Talaq by Section 3 which makes it void and illegal. Section 4 of the Act prescribes for punishment for pronouncing Triple Talaq, which is imprisonment which may extent to a term of 3 years and fine.

Conclusion

From the above detailed study it can be seen that the Triple Talaq was first a normal practice and then after years of battle it is made illegal and unconstitutional. It has been made an offence which is punishable with 3 years of imprisonment.

As stated in the very first line of this Article, ‘Marriage is a Civil Contract under Muslim Law’ but with this Law it is made punishable. The question arises that how can a person be punished under criminal law by breaching a civil contract? The another question arises that how the recent bill doing justice for women, as after pronouncing triple talaq the husband will be send to jail and the wife has to live without him, which is quite equivalent to talaq only? These questions remain unanswered in law.

References –

  • The Muslim Women (Protection of Rights on Marriage) Act, 2019.

  • Shayara Bano v. Union of India & Ors. [(2017) 9 SCC 1].

  • Traditional and Modern Forms of Talaq under Muslim Law, by Kuber Mahajan.

  • Government introduces triple talaq bill in Lok Sabha, The Economic Times.

  • The Concept of Divorce under Muslim Law, Legal Services India, By Setu Gupta.

  • Case Comment on Shayara Bano v. Union of India, by Adarsh Pandey and Arunaditya Singh Parihar.

  • Image Credits – www.indianlawjournals.com