Introduction:
Triple Talaq or ‘Talaq-ul-Biddat’, the most controversial issue at hand was at the mercy of the Constitutional Bench of the Supreme Court comprising of 5 judges of different religions in Shayara Bano and Ors. vs. Union of India (UOI) and Ors.[1] On one hand, the challenge put forward was the jurisdiction of the Supreme Court itself, as to whether the courts of law can challenge the validity of a personal law, as the same has been answered in negative in State of Bombay v. Narasu Appa Mali[2].
The second most important defense being raised by the AIMPLB is that of Article 25, i.e. right to protect, profess and propagate one’s own religion, the Board seeks to extend the scope of Article 25 to include Triple talaq, as having it being recognized as an essential practice of Islam. On the other hand, that sect of the community which is against the practice of triple Talaq, raises the issues of violations of fundamental rights.
Historical Background
In order to answer these important questions, one needs to first trace the origin of talaq-ul biddat. The practice is said to have originated in pre-Islamic Arabia, which is also known as the Jahilliyha Period or the Time of Ignorance. With the advent of Islam and Prophet Muhammad in Arabia, the said practice was abolished. During the era of Prophet Muhammad, no one was allowed to pronounce triple talaq. In a case where a man named Rukanah pronounced triple talaq in one sitting to his wife. Prophet Muhammad himself interpreted it as one divorce and allowed Rukanah to take his wife back.[3]
Prophet was of the view that when divorce is pronounced in one sitting, be it thrice or a hundred times, it has to be treated as one. This tradition was followed during the time of first Caliph Abu Bakr and for about two years during the second Caliph Umar. During this period Arabs invaded many other countries, including Iraq, Syria, Egypt, and Persia. The Arabs thought that the women in these countries were more beautiful than their own women, so they offered to marry them. Ignorant of the fact that triple talaq was no longer valid in Arab, these women urged the Arab men to divorce their wives through triple talaq. The Arab men willingly did so because men knew that Islam had abolished triple talaq and that would not be effective, and even after marrying these women, they would validly retain their earlier wives as well. When these Syrian, Persian, and Egyptian women found that they were being cheated, they approached Caliph Umar to enforce Triple talaq again in order to stop its misuse by Arabs. The Caliph complied with their demands to meet an emergency situation, but without an intention to enforce it permanently, however it was not thereafter abolished.[4] Thus, today also triple talaq is being practiced, it is considered as sinful but nevertheless valid.
Quranic Injunctions
Throughout the history, Triple talaq was a custom in pre-Islamic Arabia, but abolished by Prophet Muhammad himself, but again innovated by the second caliph. Having traced its origin, we need to look at the Holy Quranic injunctions in order to know the value and sanctity of the practice. Prophet Muhammad was always against the notion of talaq, and if it, at all had to be given, it should be a reconcilable one. Quran mentions that there should be at least four serious attempts to reconcile the marriage through at least two Arbitrators, one from the side of the Husband and the other being from the side of the wife.
The Quran nowhere uses the term ‘Triple Talaq’ or ‘Talaq-ul-Biddat’. Quran under Chapter 2 Verse 229 231, recognizes the practice of talaq. Quran under 2:229 ordains that a divorce must be reconcilable one. Verse 230 of Chapter 2, states that “divorce be twice, and then either keep the wife in an acceptable manner or release her with kindness.” The verse uses the term ‘Twice’, which is significant to the issue at hand. Twice in itself carries the sense of a reasonable gap between the two pronouncements.
When we say “I went to the park twice, but the gardener was not there” cannot mean one went to the park twice in one go but definitely after some reasonable gap of time. Once he went, but the gardener was not there and then again he went, he was not there. Thus the act of going had to be accomplished in two different periods of time. Similar is the case with regard to divorce mentioned in the Quran, that two pronouncements of talaq have to be made at a reasonable gap, most appropriately at a gap of one month. This form of talaq is known as ‘talaq-ul-sunnat’, which is the approved form of talaq and is further divided into ‘talaq Ahasan’ and ‘Talaq Hasan’. Talaq Ahasan is the most proper form of divorce, wherein the husband pronounces talaq once during the period of purity and abstains from his wife for three consecutive months, during this period the divorce is revocable, which becomes irrevocable at the end of the third month. Talaq hasan, on the other hand, requires the husband to pronounce talaq three times during three consecutive months, the divorce is revocable till the husband pronounces talaq for the third time, which then makes divorce final and irrevocable. Thus the Quran recognizes only that form of divorce which gives time for reconciliation. Thus it nowhere justifies the practice of triple talaq, thus it should not be regarded as an essential practice of Islam.
Shayara Bano and Ors. Vs. Union of India (UOI) And Ors
It is important to note that most of the hard-line Islamic countries like Pakistan, Bangladesh, Sri-Lanka, etc. have imposed a complete ban on triple talaq, and only a very small sect of Muslims i.e. Hanafi Schools of Sunni Muslims recognize this practice of Triple Talaq, however, the problem in abolishing this practice in India is that this Hanafi sect is in majority amongst Indian Muslims. However, merely because a practice is permitted and not prohibited by the religion, cannot be regarded as a positive tenet of that religion, as has also been held by the Supreme Court in Khursheed Ahmed Khan v. Union of India[5].
The issue in Shayara Bano v. UOI that the Supreme Court cannot challenge personal laws even if violative of Fundamental Rights, is mainly based on the wording of Article 13 of the COI, which does not enlist ‘personal law’ as one of the laws. Here it is pertinent to mention Muslim Personal Law (Shariat) Application Act, 1937, which aims to give precedence to the Muslim personal law i.e. “Shariat” over any custom or usage. The Act was enacted to ensure that any custom or usage, relating to certain subjects mentioned in the Act, which also includes Talaq, in violation of Shariat shall be discontinued and the rules regarding that particular subject mentioned in Shariat (Quran) shall be followed. So the main issue before the apex court was whether such an Act is challenged on the touchstone of the Fundamental rights even though it does not mention the practice of Talaq-ul-Biddat expressly. The issue of triple talaq placed an unprecedented burden on the shoulders of the judiciary, and while discharging this burden the apex court struck down the practice triple talaq on 22.08.2017 by 3:2 Majority.
Dissenting View
The then Chief Justice of India, J.S. Khehar, and also S. Abdul Nazeer, J. held in their dissenting views that the aim of the Muslim Personal Law (Shariat) Application Act, 1937 was to preserve Muslim personal law-Shariat, as it existed from time immemorial. The Act recognizes the Muslim personal law as the rule of decision.[6] Addressing the first question that whether personal laws come within the ambit of Article 13 of the Constitution of India the Hon’ble judges observed that Shariat as a body of law, was perpetrated by the Shariat Act, and what had become ambiguous due to inundations through customs and usages was clarified and crystallized, and therefore Muslim personal law – Shariat could not be considered as a State enactment.[7] The fundamental rights enshrined in Articles 14, 15, and 21 are available against State. A challenge under these provisions could be invoked only against the State. It was essential to keep in mind, that Article 14 requires the State to ensure equality before the law and equal protection of the laws. Likewise, Article 15 prohibits the State from taking discriminatory action on the grounds of religion, race, caste, sex or place of birth, or any of them and Article 21 is a protection from State action, inasmuch as, it prohibits the State from depriving anyone of the rights ensuring to them, as a matter of life and liberty, except by procedure established by law.
Muslim personal law-Shariat, could not be tested on the touchstone of being a State action, as its origin can be traced from four sources, namely, the Quran, the Hadith, the Ijma, and the Qiyas. None of these could be attributed to any State action. Talaq-e-biddat is a practice amongst Sunni Muslims of the Hanafi school and was a component of the faith of those belonging to that school. Personal law, being a matter of religious faith, and not being State action, there was no question of its being violative of the provisions of the Constitution, more particularly, Articles 14, 15, and 21 of the Constitution.[8] In their dissenting opinion, the Hon’ble judges did not strike down the practice of triple talaq as being bound by the legal provisions, however, they were of the view that such a practice is discriminatory and abominable and therefore they suggested a way out. They observed that any such practice can be and should be made illegal only through a statutory legislative provision and till such a legislation is framed the Muslim husbands are injuncted from pronouncing Talaq-e-biddat. Such an instant injunction shall be operative for a period of six months.
If the legislative process commences before the expiry of the period of six months and if it was decided that the practice of Talaq-e-biddat be done away with altogether, the injunction would continue, till legislation is finally enacted. However, if no such legislative process begins with, the injunction shall cease to operate.[9] The judges in their dissenting view did not strike down triple talaq, however, agreed that the practice should be made illegal through legislation.
Concurring views
Kurian Joseph, J. held that merely because a practice had continued for long, this itself could not make it valid if it had been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 of the Act which includes talaq. Therefore after the introduction of the 1937 Act, no practice against the tenets of the Quran was permissible. Hence, there could not be any Constitutional protection to such a practice.[10] Moreover in Shamim Ara v. State of UP & and[11] it was held that triple talaq lacks legal sanctity. Therefore, in terms of Article 141, Shamim Ara is the law that is applicable in India. Therefore triple talaq lacks legal sanctity in India. Rohinton Fali Nariman, J. and U.U. Lalit J. also in their concurring views struck down the practice of Talaq-e-biddat. While doing so they quoted the historical evolution of this practice and mentioned that after the advent of Islam, divorce was permitted to a man if his wife by her indocility or bad character renders marital life impossible.
In the absence of good reason, no man could justify a divorce for he then draws upon himself the curse of God.[12] The fact that Triple Talaq is instant and irrevocable, it was obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which was essential to save the marital tie, could not ever take place. This being the case, it was clear that this form of Talaq was manifestly arbitrary in the sense that the marital tie could be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation. This form of Talaq must, therefore, be held to be violative of the fundamental right contained Under Article 14 of the Constitution.
The 1937 Act is a law made by the legislature before the Constitution came into force, therefore it would fall squarely within the expression “laws in force” in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency.[13] The 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, was within the meaning of the expression laws in force in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Thus the practice of talaq-e-biddat was set aside.[14]
Triple Talaq Act
In order to give the decision of the Supreme Court a legislative mandate, Legislature enacted The Muslim Women (Protection of Rights on Marriage) Act, 2019, and criminalized triple talaq. Section 3 of the Act makes triple talaq void and illegal. It makes Triple talaq a cognizable and non-bailable offense, however the bail can be granted only upon the application of the accused and after hearing the married woman. The Act also provides for a jail term of three years for a Muslim man who commits the offense under the Act, i.e. pronounces triple talaq to his wife.
Conclusion
Being attached to one’s own roots is an age-old Indian practice, however with the passage of time we learn that certain of these customs are for the benefit of the mankind, however few of them turn out to be discriminatory against either the entire mankind or again certain sections of the society. Such practices should not be carried all along and should be given up voluntarily by those who preached it. If these practices are not given up voluntarily, the legal and judicial system of the country should stand together in order to abolish them through appropriate precedents or laws. In this particular case, the practice of talaq ae biddat has been carried on all along through the history of Islam. However the practice lacks any Quranic validity, also it is regarded as impermissible by the very sect who preaches it, yet they practice it. Also in the light of the international conventions and treaties like the Universal Declaration of Human Rights, to which India is a signatory, asserts that there should not be any discrimination on the basis of sex.[15]
Also, Article 5(a) of The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) eliminate customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. In order to ensure gender equality, to meet the demands of international conventions, and to ensure justice to every Muslim woman, the decision of the Supreme court and the Act enacted by the legislature was a need of the hour. This step ensures one step forward in the fight to achieve gender equality, and many more steps have to be taken.
References:
[1] (2017) 9 SCC 1
[2] AIR 1952 Bom 84
[3] Islam Does Not Sanction Triple Talaq in One Sitting, available at: https://thewire.in/law/islam-triple-talaq-one-sitting(last visited on August 20, 2020)
[4] Triple Talaq: A Critical Analysis, available at: http://racolblegal.com/triple-talaq-a-critical-analysis/ (last visited on August 18, 2020)
[5] (2015) 8 SCC 439
[6] Shayara Bano and Ors. vs. Union of India (UOI) and Ors, (2017) 9 SCC 1, Para.156
[7] Supra Note 6, Para. 157
[8] Supra Note 6, Para. 165
[9] Supra Note 6, Para. 200
[10] Supra Note 6, Para. 224
[11] (2002) 7 SCC 518
[12] Supra Note 6, Para. 234
[13] Supra Note 6, Para. 246
[14] Supra Note 6, Para. 283
[15] Universal Declaration of Human Rights, Art 2
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