Triple Talaq – Critical Analysis
What is triple talaq?
Triple talaq is also known as talaq-e-biddat is a centuries-old Islamic practice under Sharia law for instant divorce prevalent in India under which a Muslim man can divorce his wife by simply uttering talaq thrice in succession. In recent times such pronouncement is also being done by way of electronic means such as SMS, e-mail or even through social media platforms such as Whatsapp. Triple talaq in India is recognized and enforced under Shariat Act, 1937, a codification of Muslim Personal Laws.
Incidentally, this mode of divorce is not universal among Muslims across the world. Triple talaq is banned in most of the Islamic countries including Pakistan and Bangladesh. The practice of triple talaq has been subjected to many controversies and debates in India too. Some Muslim groups see the issue as a matter of religious right while those who oppose the practice have raised issues such as gender equality and justice as well as human right etc.
Why in news?
The issue has attracted considerable media attention in the past couple of years since an organisation, Bharatiya Muslim Mahila Andolan (BMMA), launched a campaign to ban triple talaq and "nikah halala". The debate was further ignited after BJP added it in its manifesto in 2014 general election. The issue has generated debates around rights of Muslim women, gender equality, human rights etc. and it is also connected to the issue of Uniform Civil Code and secularism.
Supreme Court s judgement
In a historic and landmark judgement on 22nd August, a five-judge bench of Supreme Court deemed triple talaq unconstitutional and struck it down by 3:2 majority. The apex court held that the practice is "manifestly arbitrary" and un-Islamic and does not form an integral part of religious practice under Islam. It also violates the fundamental right of Muslim women as it irrevocably ends the marriage without giving an opportunity for reconciliation.
Justice Kurian along with two other judges in their judgement held that merely because a practice has been around for 1400 years does not make it eligible for constitutional protection under article 25. He also observed, "What is banned in Quran cannot be good in Shariat. What is banned in theology cannot be good in law," i.e. triple talaq is not recognised by the Quran, the holy scripture of Muslims and hence it couldn't be protected under article 25 of constitution.
In a minority ruling of the then CJI justice Kehar and justice Nazeer, it was held that triple talaq constitutes a religious practice under Islam and hence enjoys constitutional protection. Also, it is beyond the judicial domain and scrutiny and it is for Parliament to come up with a law to deal with triple talaq.
Triple Talaq bill
During the proceedings of the case, the centre had told the bench that it will come out with a legislation to regulate the marriage and divorce among Muslims. As reported by various the newspapers, the centre is all set to table the bill in the Lok Sabha. The Muslim Women (Protection of Rights on Marriage) Bill 2017 seeks to criminalise instant triple talaq.
- The bill will make instant triple talaq a cognizable and non-bailable offence
- The bill seeks to impose a prison term of up to three years and fine for any Muslim man who divorces his wife through instant triple talaq
- It also makes a provision for alimony i.e. subsistence allowance for the Muslim women and also grants her the custody of minor children
What does the supporters of triple talaq say?
All India Muslim Personal Law Board (AIMPLB), a non-governmental body that supervises the application of Muslim personal law, in an affidavit before the court had maintained that courts could not decide matters of religious practices and it is for legislature to frame a law. AIMPLB is also of the opinion that the issue has been blown out of proportion by the media and the far rightist groups.
Many community leaders also see this as interference in what they call as religious rights of Muslims as India has a provision for personal laws for all religious communities. They have also claimed that practice will continue as before, irrespective of the legal opinion.
Some arguments placed by those who oppose the ban are as following:
- As per AIMPLB Triple talaq is an option for those who don t want to wait for three months . It is true that there are long delays in courts in divorce cases
- AIMPLB has also claimed that it had received forms from Muslim women across the country, supporting triple talaq
- AIMPLB had also prepared a Nikahnama under which women can set conditions for the husband that could safeguard their rights, at the time of the Nikah.
- As per the census data of 2011, the divorce rate among Muslims was 0.56 percent less than the Hindu community, which stood at 0.76 percent. The divorce rate among Muslims is very low compared to other communities
- Under Islamic law, the pronouncement of talaq is spread over three months instead of instant pronouncements in succession. During these three months, parties are given opportunity to reconcile
- As a matter of fact, no survey has been yet conducted by government agencies to measure the impact of triple talaq on the Muslim community
- Muslim legal experts have also questioned the premise of deeming the triple talaq unconstitutional while allowing the Jain traditions of Santhara i.e. practice of a ritualistic fast unto death
- Critics of government s move also claim that divorce is not the main issue concerning the Muslim community, majority of whom are close to the bottom of economic and educational indicators in India
Is the ban justified?
It is unfortunate that a Muslim girl in India grows with the consciousness that her husband will have an unrestrained right to divorce her. Such discrimination in the marital laws creates multiple problems for Muslim women as the laws are skewed in the favour of men.
According to the survey conducted by the Bharatiya Muslim Mahila Andolan (BMMA) in 2015, more than 90% of women respondents said they were opposed to triple talaq. This shows that there has been a strong undercurrent among Muslim women to ban the practice
- The practice of triple talaq is against the constitutional principle of right to equality as it amounts to discrimination based on gender
- The reports of men divorcing their wives on text and social media have created a serious concern in the community
- The practice not only has serious implications for gender equality and human rights but it is also against the dignity of women
- If the divorced couple wants to remarry the wife has to consummate a second marriage before remarrying the first husband. This practice is known as Nikah Halala
- Interestingly triple talaq does not find mention under Quran. It is also largely disapproved by Muslim legal scholars.
- Triple talaq is not an essential feature of Islamic practice and belief. It is only an innovation under Islamic jurisprudence. So the practice is not justified theologically
- Furthermore 22 Islamic countries including India s neighbours i.e. Pakistan and Bangladesh have banned triple talaq
As the government is moving ahead with tabling the bill in the Lok Sabha, this heated debate can finally come to an end. However there are other concerns regarding implementation of the law as despite banning of the practice by the Supreme Court it is still being continued in various parts of the country.
There is also need to promote alternate dispute resolution mechanism (ADR) among Muslim couples to amicably resolve the marital disputes.
Furthermore, banning of triple talaq is only a beginning in the reform of personal laws as there are other provisions of polygamy, inheritance, maintenance and custody of children that needs to be made gender neutral.
Many are also seeing the ending of triple talaq as a step in implementing uniform civil code. However any haste in this regard can create a sense of fear among the religious minorities so it is important to first build the consensus among all stakeholders before Uniform Civil Code can be given a go ahead.
Triple talaq has been one of the most debated issues in past couple of years in India as it is also connected with other issues such as secularism and uniform civil code etc. However it is important to keep in mind that what is at stake here is the dignity of women and their rights and any move to politicise the issue will undo the efforts and fight of Muslim women for equal rights.