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TRIPLE TALAQ ISSUE

TRIPLE TALAQ ISSUE

 

“Women must not accept; she must challenge”

-By Margaret Sanger

Triple Talaq or Talaq- ul -Biddat has been a matter of debate for over 65 years for Muslim women, which contributes to around 8% of the population as indicated by the 2011 census. "Muslim women deserved and it is their right to have a life proportionate to that of other women, says a Christian or Hindu wife," this was argued by the union government in court. The union government contended that triple talaq isn't fundamental to Islam. Union government assured the court that it will enact a new divorce law in case the court strikes down the triple talaq. The Union government argued that Muslim marriage and separation is provided under Section 2 of the Shariat Act of 1937 and comes within the ambit of 'law' under Article 13 of the Constitution. Subsequently, they ought to maintain the standards of dignity and non-discrimination. Shariat are the Muslim Personal Laws.

Muslim Marriage (Niqah) is one of the few wedding ceremonies which is shorn of any religious prerequisite, and is in truth Muslim marriage is a contract. It would be extremely difficult to find some other union of a man and women that does not include or require any religious ceremony.

CONCEPT OF TALAQ

Talaq in the literal term refers to the right of a Muslim man to give divorce to his wife. Man can simply repudiate his wife and dissolve Marriage by announcing the same. It is a general perception that Muslim men had an undue advantage over Muslim female as they have this extra right to dissolve their Marriage. In justification to the advantage given to the Muslim men, it is believed that no man would give divorce to his wife without a good cause. Talaq is recognized under Shia and Sunni Law both with certain differences in the practicing of the same.

Before proceeding further, it is important to mention that Talaq only favours a man is a myth. A female can also give Talaq to her Husband. Different types of Talaq are mentioned below. 

TYPES OF TALAQ

Talaq can be categorized under three categories, i.e. Talaq by a Muslim Man, Talaq by Muslim Woman and Talaq by Mutual Consent. 

Talaq by Muslim Men 

  • Talaq-ul-Ahsan - The most approved form of Talaq. In this Talaq, man makes single pronouncement of Talaq to his wife during the Tuhr period (Purity period during menstruation cycles). After the pronouncement of Talaq, wife goes for Iddat period of 3 Months. During this Iddat period, husband can revoke Talaq expressly or impliedly by having sexual intercourse with his wife. Under Shia law witness to the pronouncement and Intention of husband are important, however under Sunni law No witness is required and even Talaq pronounced by Mistake is acceptable.
  • Talaq Hasan - A type of Talaq in which husband pronounce Talaq successively during a three Tuhr period of wife. There must be clear intention on the part of the husband. Husband is abstained to have sexual intercourse with wife during the Iddat period, practiced by wife during the Talaq period. 
  • Talaq- ul -Biddat - the most common type of Talaq which is also known as Triple Talaq. It must be noted that this form of Talaq was never approved by the Prophet. Muslims always believes in the concept of reconciliation, however Talaq ul Biddat is irrevocable and hence there is no chance of reconciliation. The entire three pronouncements are given at a single time and Marriage comes to an end without any period of cooling down. It is the reason that Triple Talaq was always condemned. Shia school does not even recognize this type of Talaq. It is only recognized under Sunni law and under which it is considered to be a ‘sin’.
  • Ila - is a type of Talaq in which a husband abstain himself from having sexual intercourse with his wife for the period of four months. It is believed that if a man is able to control is sexual urges against his wife for four months, he is entitled to have divorce with her. Marriage dissolves automatically at the completion of four months.
  • Zihar - a type of Talaq in which husband compares his wife with his mother or any female in prohibited degrees.

 

Ila and Zihar are not observed in India.

Talaq by Muslim Women

  • Talaq- e -Tafweez – It is also known as delegated Talaq, in which husband delegates his power to give Talaq to any third person or to his wife. Wife can give Talaq by herself whenever she wants to dissolve the Marriage.

Talaq by Mutual Consent

  • Khula- In this type of Talaq, Wife can get herself out of the Marriage, by making an offer to her husband with some consideration. If husband accepts the offer of the wife, he is bound to give Talaq to his wife.
  • Mubarat- in this type of Talaq, either husband or wife can make offer. By mutual agreement, Marriage can come to an end. There is no consideration involved in it.

CASE OF TRIPLE TALAQ

Shayara Bano Vs. Union of India

The current debate around triple talaq is centred on the Shayara Bano and several batches of petitions as well as Supreme courts own Suo Moto PIL to consider whether certain aspects of Islamic personal laws amount to gender discrimination and hence violates the constitution. The petition hence challenges the validity of triple talaq on the touchstone of article 14, article 15, article 21 and article 25 of Constitution of India.

Shayara Bano was married for 15 years. In 2016, her husband divorced her through talaq–e-biddat (triple talaq). This is an Islamic practice that permits men to arbitrarily and unilaterally effect instant and irrevocable divorce by pronouncing the word ‘talaq’ (Arabic for divorce) three times at once in oral, written or, more recently, electronic form. Ms Bano argued before the Supreme Court of India that three practices – triple talaq, polygamy, and Nikah Halala (the practice requiring women to marry and divorce another man so that her previous husband can re-marry her after triple talaq) –were unconstitutional. Specifically, she claimed that they violated several fundamental rights under the Constitution of India namely, Articles 14 (equality before the law), 15(1) (prohibition of discrimination including on the ground of gender), 21 (right to life) and 25 (freedom of religion). Her petition underscored how protection against these practices has profound consequences for ensuring a life of dignity. Further, it asserted that failure to eliminate de jure (formal) and de facto (substantive) discrimination against women including by non-State actors, either directly or indirectly, violates not only the most basic human rights of women but also violates their civil, economic, social and cultural rights as envisaged in international treaties and covenants.

The majority judgment held triple talaq to be unconstitutional under Article 14 read with Article 13(1). In this regard, the Court held that the practice had been sanctioned as a matter of personal law by the Muslim Personal Law (Shariat) Application Act, 1937. The Court clarified that “…an action that is arbitrary, must necessarily involve negation of equality” and determined, as triple talaq provides that “…the marital tie can be broken capriciously without any attempt at reconciliation so as to save it”, this arbitrariness violates Article 14. The Court concluded that the 1937 Act is void to the extent that it recognizes and enforces triple talaq, on the basis that as per Article 13(1) all laws in force immediately before the commencement of the present Constitution (which includes the 1937 Act) shall be void in so far as they are inconsistent with the fundamental rights set out in the Constitution. The Court also considered whether triple talaq is protected under Article 25 but, following a review of relevant precedents and Islamic scholarship, concluded that it is not essential to the practice of Islam.

The Supreme Court judgment of 2017 is a triumph for Muslim ladies and their associations. The ladies who have battled this case needed organized support system but still they endured and took the battle to its legitimate conclusion. 

This was a noteworthy judgment that will make the way for new era in this nation. The 2017 Supreme Court judgment won't just have a positive impact on Muslim women — the threat of triple talaq that hung over their heads has been removed — yet it additionally conveys a solid message of gender equality. It is a huge source of motivation also for non-Muslim women. If these poor Muslim women with no help or resources can battle their fight effectively, then why can't others too? 

In this case, the Court focused solely on the practice of triple talaq. In August 2017, the Court, by a majority of 3:2, set aside the practice of triple talaq. Of the justices who voted against the practice, two held it to be unconstitutional while the third relied on case precedents to reiterate that such practice was impermissible under Islamic law.

 

 

Conclusion

All human beings have equal rights and freedoms given by the constitution irrespective of their caste, religion, gender. No one can infringe the right of another person with a view to destroy the life of the other person. According to Hindu law, marriage is a kind of sacrament one has to follow but Muslims feel that it is a kind of contract they are entering which can be breached anytime by pronouncing the word talaq three times. Now be it any religion Muslim or Hindu the rights are equal to all and every woman has the half of the right over his husband’s property. The husband cannot leave his wife, if his wife is totally dependent on him. Husband can leave his wife by the legal procedure established by law. If a person pronounces divorce to his wife on spot and does not provide the maintenance to the wife who was totally dependent on him will have to fight hard for the survival. Here her rights are infringed because she will not be left with any source of income and also her reputation in the society will shadowed. This practice is misused by the husbands of Muslim women as first they marry them and then after using all the resources that she had from his parents, leave them and go for the other woman to gain the profit from the other women.

Every person has the right to enjoy his or her life but such type of practices put a sudden stop of happiness in the lives of the women. Hence its practice has been declared void and the people should be aware that nobody practices it in the society. Also, the practiced of talaq-e-biddat is denounced internationally and many of the Islamic countries have forbidden this practice too so why should we follow it. After this judgement the Muslim women were finally happy as their personal rights were protected by the constitution.   

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