Divorce and Gender Justice Under Muslim Law in India

Introduction:

Following the path of secular approach in a pluralistic society, the constitution of India grants enough liberty to every religion for practicing and promoting their own personal laws without any obstruction by the government or any other religion.

In Islam, one of such personal law includes “Talaq”, an Arabic word which means “to release or to set free by undoing the knot”. In legal terms, it signifies the dissolution of Marriage or Divorce between the husband and wife who were lawfully married under Muslim Personal Law. As per ancient history, prophet Mohammad did not really encourage the practice of talaq and recommended to use it only under exceptional circumstances.

Prior to 1939 (before the enactment of Muslim Marriage Act, 1939), it was considered as extremely impossible for a Muslim wife to divorce her husband, as earlier under Muslim personal laws only husbands were allowed to repudiate the marriage by merely pronouncing the word “talaq” thrice and thereafter the marriage was taken as legally annulled. Moreover, Muslim law gives such immense power to men to renounce the marriage without even specifying the cause/reason for such an act.

Holy Quran and Status of Muslim Women

The holy Quran reserves a great significance in the Muslim religion as it is considered to be a revelation from God. It is a central religious text of Islam and not practicing it is recognized as a sin among the Muslim community. Though Quran teaches immensely as to how a person should keep faith within almighty and how to live life the right way, etc. it somewhere shows a gender biasness as to the status of women in some of its verses.

For instance – Verse 2:23 “Your wives are as a tilth unto you so approach your tilth when or how ye will;……”( The Holy Quran, IFTA, p.96). in this verse, women are considered as a land for the purpose of cultivation and males as the owner of that land in a way as if men has complete authority over women.

Further verse 4:3 “If you fear that ye shall not be able to deal justly with the orphans, Marry women of your choice, two, or three, or four;…” (the holy Quran, IFTA p.206), through this verse the Holy Quran permits men to commit polygamy by allowing them to marry four wives.

Additionally, verse 2:228 exhorts men to control women by stating that men have a degree over women.

All these verses provoke and encourage men to assume that they are supreme and they have complete authority over women which further stimulate them to exploit and harass women in the name of the Holy Quran. 

However, verses such as – Verse 4:34 “Give her food when you take food, clothe her when you clothe yourself, do not revile her face, and do not beat her” and Verse 2:231 “….do not retain them (i.e. your wives) to harm them …” clearly prohibits Muslim men to physically harm/harass their wives or punish them by beating.

Dissolution of Marriage under Muslim law

However, the Islamic law provides sufficient scope for reconciliation and settlement between the husband and wife before the divorce becomes permanently irrevocable.

The dissolution of marriage under Muslim personal law is broadly divided into two categories namely –

1. Extra- judicial manner

Extra-judicial forms divorce includes those practices which are traditionally prescribed under Muslim personal laws as a mode of dissolution of marriage. It was further divided into subcategories depending upon which of the parties to marriage initiates the divorce.

i) Talaq by Husband

As per Sheriat law, a Muslim husband of sound mind has the right to divorce his wife without assigning any reason and by merely pronouncing the word “talaq”. The presence of wife during such pronouncement is irrelevant as to the validity of talaq i.e. the husband may communicate his intention through any mode (oral/written) including – a letter, by words, through the mail, whatsapp, social media platforms, etc.

Essentials regarding the competency of a husband in order to pronounce a valid talaq under Shia law are as follows- 

• The husband must be major
• The husband must be of sound mind
• The husband should not act under influence i.e. free will is required
• The intention to dissolve such marriage must be absolutely clear

As per Shia law, dissolution of marriage by the husband under the state of intoxication is invalid however, Sunni law recognizes the same as a valid divorce.

Under Mohammedan law, the husband can dissolute the marriage through the following ways –

a) Talaq-e-Sunnat/ Talak-ul-Sunnat (Revocable)

Sunna or Sunnat is an Arabic word which means traditional customs and practices. Therefore, talak-e-sunnat can be described as a traditional form of divorce based on the prophet’s dictate and considered as the most approved form of talaq under Muslim personal law.

Further, Based on the revocability of divorce, duration of pronouncement and iddat period, talaq-e-sunnat is further sub-categorized into two categories –

  – Talak-e-ahsan (Most-proper)

• Under talaq-e-ahsan, the Muslim husband has to pronounce the word “talaq” thrice in a single sentence, such pronouncement should be made during the period of “thur” or “purity” i.e. the period during which the wife is not menstruating. From the time of such pronouncement, the iddat initiates for 9o days during which the husband and wife shall have to abstain from cohabitation or sexual intercourse.
• Scope of reconciliation – Talaq-e-ahsan is considered as the most approved form of divorce as it allows sufficient amount of time to both the parties (i.e. husband and wife) to reconcile and settle their differences (if possible) through arbitration, conciliation and settlement. If, before the completion of iddat period the spouses settled their issues, they can either expressly or impliedly revoke their divorce. However, on the expiration of such period, the divorce becomes final and permanently irrevocable.
• If the husband uttered the word ‘talaq’ at the time when his wife was undergoing through her menstruation, such pronouncement shall be considered as invalid.
• If the husband and wife are cohabitating together or consummate during the iddat period, such an act will be taken as an implied revocation of divorce.

– Talak-e-hasan (Proper)

• Talak-e-Hasan is also known as the approved or proper form of divorce as it is too contains the provision for revocation of divorce. In this form talaq, the husband has to make three successive pronouncements of the word “talaq” during three consecutive periods of Thur (period of purity between two menstrual cycles).
• In case the wife has crossed the age of menstruation (or attains menopause), three pronouncements shall be made during successive intervals of 30days.
• The spouses must have to abstain from any conjugal relations or sexual intercourse until the third pronouncement.
• The husband and wife have the time to revoke the divorce (either expressly or impliedly) until the third pronouncement as once the third pronouncement is made, the talaq becomes final and irrevocable.
• If the spouses resumed their conjugal relations between the iddat period, the divorce shall automatically be revoked and talaq becomes ineffective.

b) Talaq-e-biddat  [instant triple talaq] (disapproved)

• The term biddat signifies “innovation” that means this mode of divorce was invented during the modern era and not originally supported by the traditions of the prophet.
• Talaq-e-biddat or talaq-e-bain is considered as sinful and the most disapproved mode of talaq as it allows no opportunity to husband and wife to reconcile or settle their differences.
• [1]In this form of divorce, the husband has to pronounce the word ‘talaq’ thrice in a single sentence during the period of ‘thur’ and from that moment onwards their marriage was instantly considered as legally annulled although the wife has to observe the required iddat period. That is why it is also known as instant triple talaq.
• In several Islamic countries including Pakistan, Sri Lanka, Bangladesh, Turkey, Malaysia, Egypt, Iran, Jordan, Saudi Arabia, etc., the practice of instant triple talaq was prohibited and completely banned.
• Before 2017, instant triple talaq was widely prevailing in India but after the landmark judgement in case of Shayara Bano v. Union of India, the supreme court banned this practice as being violative of the fundament right to equality under Article 14 of the Indian constitution.

c) Ila

In this form of talaq, the husband does not pronounce talaq expressly but abstains from any doing sexual intercourse with her wife. Thus, in ila, the husband takes an oath to abstain from consummation for 4 months (i.e iddat period) and after the completion of four months, the marriage dissolves irrevocably.

d) Zihar

In this form of divorce, the husband compares his wife with the females within the prohibited degrees of his relations i.e. his biological mother, blood-related sister, etc. after such comparison, the husband has to abstain from cohabiting with his wife for four months and upon the expiration of such period zihar completed. After such completion, the wife may either opt for a judicial decree for dissolution of marriage or may apply for restitution of conjugal rights.

ii) Talaq by Wife

Talak-e-tafweez (Delegated Divorce)

• Mohammedan law does not confer any specific/special right onto Muslim women as to repudiate her marriage through divorce. However, a Muslim husband has a right to delegate his power to pronounce divorce to any third person including his wife.
• He may delegate this power absolutely, conditionally, temporarily or permanently to the wife or any other person.
•  Generally, the delegated power of divorce is granted to the wife through a pre or post- marriage agreement. Through this delegated power, a Muslim wife may pronounce divorce on herself (on behalf of her husband) but only under happening of specific events mentioned in the agreement itself.
• For instance – if the husband has performed Nikah for the second time with some other person or if he has treated her (first wife) with cruelty, etc. Further, it should be noted that happening of contingency does not result in an automatic divorce, the wife still has the option to choose whether she wants to exercise her delegated right or not.
• Finally, ones the wife has pronounced talaq through the right delegated by her husband, it becomes final and irrevocable.

iii) Talaq by Mutual consent

Talaq by mutual consent involves the dissolution of marriage by mutual consent of both husband and wife. It is of two kinds, namely –

Khula – This form of divorce initiates by a Muslim wife whereby she purchases the right to divorce from her husband in lieu of some consideration. In other words, in order to obtain the consent of her husband for divorce, the Muslim wife offers something valuable in return. Such consideration may include the dower presented to the wife at the time of Nikah or any property or monetary consideration.

Mubarat – Mubarat involves talaq by mutual consent therefore, when both the spouses mutually agree to dissolve the marriage they make take talaq. In this form of talaq, the offer may be initiated by either of the parties but once the offer got accepted, the divorce becomes irrevocable.

2. Judicial manner (Dissolution of Muslim Marriage Act, 1939)

Talaq by judicial process includes formal separation of husband and wife through a decree issued by the court of law. A woman married under Muslim law is entitled to obtain a decree for dissolution of her marriage under section 2 of the dissolution of the Muslim marriage act, 1939. Section 2 of the act[2] specifies nine grounds over which a Muslim wife may obtain such decree from the court, the grounds are as follows-

• When the whereabouts of the husband has been unknown for the period of 4 years[3].
• When the husband has neglected or has failed to provide for maintenance[4] of her wife for a period of 2 years.
• When the husband has been sentenced for imprisonment for the period of 7 years[5] or more.
• When the husband has failed to perform any martial obligations (without any reasonable cause) for the period of 3 years[6].
• When the husband was impotent[7] at the time of marriage and continued to be so.
• [8]when the husband has insane for the period of 2 years, or when the husband is suffering from leprosy or any venereal disease.
• When the wife, before attaining the age of 15, has been put into marriage by her father or any other guardian and repudiated the marriage before attaining the age of 18.

Provided that she did not consummate the marriage[9].

• When the husband treats the wife with cruelty[10] (either mental or physical)
• Any other ground[11] which is recognized as valid under Muslim law for dissolution of marriage.

Islam and International Humanitarian Laws Regarding the Protection of Women Against Discrimination

On December 18, 1979, the united nations general assembly adopted the women’s convention [convention on the eliminating all forms of discrimination against women (CEDAW)][12] in 1979 after being ratified by 189 member states including India[13], Afghanistan, Saudi Arabia, Iraq, Pakistan, Oman.

The CEDAW or international bill of rights for women was adopted with the primary vision of ending discrimination against women in all forms. For achieving this objective, it aims at –

• Abolishing all discriminatory laws and to adopt appropriate ones prohibiting discrimination against women.
• Establishing tribunals and other public institutions to ensure the effective protection of women against such inequalities
• Ensuring elimination of all acts by persons, organization or enterprise that are discriminatory against women.

CEDAW is the only women’s right treaty which affirms the reproductive rights of women and targets cultures and traditions as an influential force in shaping gender roles and family relations. The nations who have ratified/acceded to the convention are legally bound to adopt its provisions into practice in their respective countries.

Gender Disparity (Injustice) under Muslim Law

Among various other socio-religious communities, the Muslim community is subjectively ill-famed for its oppressive and autocratic customs and laws when it comes to a woman. The segregation as to the status of male and female among Muslims is extremely discriminated and unjust to the interest and well-being of women.

It is significant to note that majority of practices discriminating Muslim women were not originally laid down by the holy Quran but erroneously framed to serve the patriarchal mindsets.

Certain customary laws and practices which explicitly depicts the gender-prejudice includes –

• Male privilege of unilateral divorce,
• Ubiquitous veil,
• Women’s right of inheriting personal property,
• Instant triple talaq,
• Practice of polygamy,
• Nikah Halala  

As a result of such practices, Muslim women are subjected to rampant inequalities

Men having Unilateral power of Divorce

In Muslim personal law, the rights of women are highly undermined as it confers an unlimited power over Muslim men to terminate the contract of marriage without even considering the will of the wife. Such power possessed by Muslim husbands is so wide that it seems clearly prejudiced to the interest of wives to such an extent that during the pronunciation of the word talaq, the wives are not even entitled to know the reasons for their divorce as the husband are not legally bound to specify it.

Nikah Halala

In Islamic law, Nikah signifies marriage and halala means lawful or permissible. It is a practice whereby a Muslim woman marries someone else, consummate that marriage and than dissolute (divorce)it with the sole purpose of remarrying her former husband who previously divorced her by way of triple talaq. This practice was considered as ‘haram’(forbidden) according to hadith but was still widely practiced in countries recognizing triple talaq.

The way the Quran speaks it was meant to curb incidences of divorce. It was originated to put an end to the endless cycle of marriage and divorce where temperamental husbands in a fit of anger pronounce divorce to their wives, then took it back and then divorce again, leaving wife completely vulnerable. The law was supposed to protect women so that they will not be treated merely as an object of pleasure only but now it turned into an exploitative law which adversely degrades the dignity of Muslim women.

Landmark Judgement of Supreme Court Promoting Gender Justice under Muslim Law                       

Shayara Bano v. Union of India, 2017 [Triple talaq case]

Petitioner – Shayara Bano

Respondent – Rizwan Ahmed, Union of India, Ministry of law and justice, Ministry of women and child development, Ministry of minority affairs, National commission for women and All India Muslim personal law board

Constitutional Bench – CJI Jagdish Khehar, J. Abdul Nazeer, J. Kurian Joseph, J. Rohinton Nariman and J. U L alit

Brief Facts and arguments – In this case, the petitioner Shayara Bano was married to Rizwan Ahmed for almost 15 years. Later on in the year 2016, her husband pronounced Triple Talaq through a letter when she was staying at her maternal home. Due to this, she filed a writ petition in the supreme court of India challenging the validity of three Muslim practices including –

• Instant triple talaq [talaq-e-biddat]
• Nikah Halala
• Polygamy

The apex court asked all the respondents to submit a written statement over which the All India Muslim personal law board submitted that- since all these practices are part of Muslim personal law, it is outside the jurisdiction of supreme court i.e. the apex court should not have the jurisdiction to interfere in the religious/ personal law matters.

Eventually, the apex court framed two major issues, namely –

1. Whether Instant triple talaq is an essential religious practice of Islam
2. Whether the practice of triple talaq is violative of Fundamental right

Judgement – CJI Jagdish Khehar and J. Abdul Nazeer observed –

1. Instant Triple talaq is a part of Muslim personal law and therefore, it is protected under Article 25 (right to religion) of the constitution of India i.e. Freedom of conscience and free profession, practice and propagation of religion.
2. As per Article 13[14] of the India constitution, SC cannot interfere in personal law matters of any religion.
3. In such matters, only the parliament can decide whether the law is valid or not and not the judiciary. Therefore, it is better to put up a stay on this practice for 6 months until the parliament decides whether it is necessary to ban it.

On the other hand, J. Kurian Joseph, J. Rohinton Nariman and J. UU Lalit held a contrasting view.

J. Kurian Joseph observed that-

1. In Instant triple talaq is an Un-Islamic practice as it is not a traditionally approved form of talaq, therefore it is not an essential element of the Muslim personal law.
2. Additionally, this form of divorce lacked the two major pre-requisites of divorce i.e. arbitration and conciliation.

J. Rohinton Nariman and J. UU Lalit has held a similar view that –

1. All the laws (including personal laws) whether enacted before or after the constitution of India, needs to be consistent with the fundamental rights. Though as per Article 13, the supreme court cannot interfere in the matters regarding personal laws but in this case, Instant triple talaq was challenged under Article 14, 15, 21, 25 of the India Constitution.
2. Therefore, as per Article 14, the supreme court has the power to declare any law unconstitutional which is arbitrary and violative of the fundamental right. The court held that Instant triple talaq is arbitrary and violates the right the of women under article 14 of the India constitution.

Finally, by a majority, the apex court declares the practice of instant triple talaq unconstitutional as being violative of women’s fundamental right guaranteed under the constitution of India.

The Muslim Women (Protection of Right on Marriage) Act, 2019 – A Step Towards Gender Justice under Muslim Law

Even after the highest court of India abrogated and banned the practice of instant triple talaq in 2017, repeated instances of triple talaq was reported in various parts of India. Therefore, in December 2017, the Lok Sabha passed the Triple talaq bill in order to criminalize the practice of instant triple talaq but it lapsed in Rajya Sabha. Finally, in July 2019, the bill was passed by both the houses and received the assent of the president. The act received immense appreciation from all over the nation as a significant step in protecting the interest of Muslim women against arbitrary and inhuman personal law.

Highlights of the Muslim Women (protection of rights on marriage) Act, 2019

1. As per the act, any pronouncement of talaq (instant triple talaq) by a Muslim husband upon his wife, by words (written or spoken) or in any electronic form shall be void and illegal[15].
2. The act criminalizes the act of triple talaq and imposed the punishment[16] of imprisonment up to three years and fine. 
3. The act categorized the offence of pronouncing instant triple talaq as a cognizable offence[17] whereby the police may arrest the husband without any warrant on the complaint of the wife.
4. The husband (accused) cannot be released on bail unless the wife is heard[18].
5. In the event of pronouncement of talaq by her husband, the wife shall be entitled to the custody of minor[19] child/children.

Conclusion

It is an unfortunate truth that Muslim women were subjected to gender injustice and inhuman treatment for several decades. Due to the absence any formal of legislations until 1939 (including central and personal laws), it was considered as almost impossible for a Muslim woman to obtain a divorce from her husband except for the delegated right to divorce which was again granted as per the will of the husband.

But fortunately, after the enactment of the dissolution of Muslim Marriage Act, 1939, the Muslim women came across as slight equals but still, the arbitrary practice of talak-e-biddat (instant triple talaq) continued to be a matter of fear among Muslim women that someday in heat of passion over petty quarrel, their husband might pronounce the divorce. Eventually, in 2017 the apex court banned the practice of instant triple talaq and the parliament came with a progressive and deterrent law in the shape of Muslim Women (protection of right on marriage) Act, 2019 to protect the interest of women against such arbitrary and discriminatory practices.

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References:

• The Muslim personal (Shariat) Application Act, 1937
• The constitution of India
• The Muslim Women (protection of right on marriage) Act, 2019
• http://chdslsa.gov.in/right_menu/act/pdf/muslim.pdf
• Indian constitutional law (by M P Jain) [8^th edition vol. 1]
• Principles of Mahomedan Law (by Mulla) [22^nd edition]
• https://www.un.org/womenwatch/daw/cedaw/
• https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en

[1] The Muslim personal (Shariat) Application Act, 1937

[2] Section 2 of the dissolution of the Muslim Marriage Act,1939

[3] Section 2(i) of the dissolution of the Muslim Marriage Act,1939

[4] Section 2(ii) of the dissolution of the Muslim Marriage Act,1939

[5] Section 2(iii) of the dissolution of the Muslim Marriage Act,1939

[6] Section 2(iv) of the dissolution of the Muslim Marriage Act,1939

[7] Section 2(v) of the dissolution of the Muslim Marriage Act,1939

[8] Section 2(vi) of the dissolution of the Muslim Marriage Act,1939

[9] Section 2(vii) of the dissolution of the Muslim Marriage Act,1939

[10] Section 2(viii) of the dissolution of the Muslim Marriage Act,1939

[11] Section 2(ix) of the dissolution of the Muslim Marriage Act,1939

[12] https://www.un.org/womenwatch/daw/cedaw/

[13] https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en

[14] Article 13 – Laws inconsistent with or in derogation of the fundamental rights [constitution of India]

[15] Section 3 of the Muslim Women (protection of right on marriage) Act, 2019

[16] Section 4 of the Muslim Women (protection of right on marriage) Act, 2019

[17] Section 7 (a) of the Muslim Women (protection of right on marriage) Act, 2019

[18] Section 7 (c) of the Muslim Women (protection of right on marriage) Act, 2019

[19] Section 6 of the Muslim Women (protection of right on marriage) Act, 2019