In this article, Mansi Agnihotri discusses the current status of triple talaq and also resolves the doubts and frequently asked questions on the issue.
Triple talaq became a major concern in the recent year. The recent judgment though concreted that triple talaq is unconstitutional but raised a number of doubts in the minds of people. Before clearing the ambiguity lets understand talaq as per Shariat act.
Understanding the concept of talaq
Talaq is classified on the basis of pronouncement into two i.e
a) Talaq-ul-Sunnat (revocable) and;
b) Talaq-ul-Biddat (irrevocable) which is further subclassified in talaq Ahsan (most proper) and talaq Hasan (proper).
So as per Shariat act, the triple talaq doesn’t exist in the form as the usage was modified by the king Omayad in the second century as per the convenience. Thereafter the Muslim males started misusing it to prove their dominance over women.
It is the talaq-ul-Biddat which is in the canvass and it is regarded as the disapproved form of talaq. This form of talaq is in contrast to the ideology of the Prophet. Here the husbands could break the sacred relation merely by pronouncing talaq three times and there is no possibility of reconciliation. Prophet always opposed irrevocable talaq as he believed talaq is an evil and people must pursue the revocable one as there is an option of gaining back the pious relationship. Also, it is a unilateral divorce and is against the gender jurisprudence.
However, this modified version left women in the cage of insecurity as men started pronouncing talaq even on the trivial matters. This led to the campaign by the Muslim women to ban ‘triple talaq’ and ‘nikah Halala’ by the ‘Bhartiya Mahila Muslim Andolan’. But ‘All India Muslim Personal Board’ a Non-government organization which aims to educate Muslim retorted and claimed that this is a question of religion and it is unIslamic to distort anything which is enumerated in the Shariat. As per them, such a thing will injure Islam.
This dispute reached the platform of the court and thereafter the five judges bench examined whether the ‘islamic divorce practice’ is fundamental to religion or not and passed the judgment and held triple talaq as unconstitutional.
The Muslim religion got bifurcated into two major communities after the death of the prophet. This also led to the differentiation in various customs. It is material to mention that Shia laws don’t recognize talaq-ul-Biddat or the instantaneous talaq. Hence this judgment establishes no effect on Shia community. This talaq-ul-Biddat is followed only in the Sunni community of Hanafi school and Hanafi Sunnis comprise around 90% of the Muslim population in India.
Judgement is not Against Islamic Religion
This judgment is not against any institution, organization nor it is against the religion of Islam. Rather, the true meaning and spirit of the Quran have been outlined on the anvil of individualism, the rule of law and human rights enunciated in the constitution. It is a judgment in favor of justice based on women rights on humans right that has been denied to Muslim women for centuries despite Quranic provisions relating to gender and spousal equality in wedlock and beyond. The Quran does not sanction triple talaq in one go. According to Islamic scripture, the word talaq is spoken thrice over a period of three months. In such a manner, it demands time and patience in executing a divorce in the hope of making the union possible knowing that the couple is bound to have differences. This Quranic procedure has been laid down with a rationale to establish that marital coverture cannot be terminated in a state of sudden provocation, rage or whims.
Current status of Triple Talaq
Is Triple talaq still legally effective?
- The supreme court in the judgment paralyzed triple talaq by declaring it as unconstitutional. This means that no more these three words will be able to invalidate the marriage. Through this, an armament has been provided to the women to guard themselves against this barbaric law. The supreme court focuses on to liberate women from the coercive chains set by the males. But since the judgment is full of jargons and legal sections it is way beyond the understanding of the layman. since there is an extreme illiteracy among the Muslim women Muslim (around 42.7% according to the census of India 2011), we can imagine that almost half of the women are illiterate therefore women who have been the victim of it are in doubt as what should they do. Also because of the illiteracy, many of them are still unaware of the changed scenario.
Status before the judgment
- It is significant to state that the sketch before the passing of the judgment was very gloomy, the husbands were very inhuman against their wifes. In many cases husbands pronounced triple talaq for flimsy reasons and later regretted. Upon which they asked the wifes to go through ‘Nikah Halala’ so that they could remarry, because of illiteracy and social bounds women’s had no recourse available except to go through it. The custom of “nikah Halala” was so harsh that it ripped off the soul of the women. In many reported cases, the husband at first forced the wife to go through ‘nikah Halala’ and later refused to remarry. This left women in shock, but they were amputated by the custom to take any step.
Is the custom of ‘Nikah Halala’ still prevalent?
- It is crucial to enumerate that because the supreme court has solidified in his verdict that the talaq-ul-Biddat or the instantaneous form of talaq is invalid,it means that it cannot pose any effect over the marriage in any way, therefore the wifes cannot be forced to go through the process of nikah Halala, even if the husband pronounces triple talaq or talaq-ul-Biddat.
Has the practice discontinued?
- It would be impractical to state that after the release of the judgment the practice has ceased completely. As per the minister of law, Mr. Ravi Shankar Prasad, there has been around approximately 66 reported cases from various parts of the country after the release of the judgment on the 22nd of August 2017. It can be ascertained that there is a possibility of many cases which might have gone unreported. So it can be concluded that many might be practicing it in the dark. But after the release of the judgment, one thing is for sure that the women have got encouraged and have gained the strength of standing against this barbaric and inhuman act of the men.
- The practice of triple talaq is heavily assimilated in the Muslim culture, and it is difficult to immediately wipe it. As the abovementioned para states that statistics of the reported cases after the release of the judgment. So there is a need of educating the Muslim women in this regard so that they can speak against it. It is suggestive that the victim must build the courage and must either contact the police or some women-oriented NGO, but she must not suffer it silently.
What about the validity of ‘other’ form of talaq such as talaq-e-Sunnat, khula, etc?
- It is pertinent to mention that it is ONLY ‘talaq-ul-Biddat’ which has been declared as unconstitutional and not any other form talaq. As there are numerous forms of talaq which the Shariat law has defined, and no other except for talaq-ul-Biddat or instantaneous talaq has got nullified by the court. It means that the rest of the practices such as khula, talaq-e-Sunnat is still constitutional and therefore if the husband or the wife practices any other form of talaq which the Shariat enumerates then it shall affect the marriage.
What about the other barbarous practices such as ‘nikah Halala’?
- Although it is a strong step taken by the court to take away the force of law from the practice of talaq-ul-Biddat, the holistic approach is still lacking as a lot of problems still needs the judicial address. Customs such as nikah Halala, have not yet received any address from the court of law. It is needed that other practices such as polygamy, minors marriage or marriage with huge age gap must also be looked up by the court.
Does DAR-UL-QAZA stand with this verdict?
- DAR-UL-QAZA refers to the Islamic family courts. It is a forum of mediation. If the parties agree then the forum can act for arbitration as referred in the Shamim ara and the recent judgment. After the release of the landmark judgment, the DAR-UL-QAZA is not entitled to validate the instantaneous or unilateral talaq. Although the Islamic court is empowered to facilitate the amicable settlement of khula. However, the recent judgment falls short of devising a mechanism which the other Muslim countries have implemented for declaring the divorce. Therefore it is suggestive that the dar-ul-Qaza must be empowered to allow divorces of irrevocable nature.
- The supreme court in Shamim Ara case (2002), the talaq must be for reasonable cause and attempts of reconciliation must be taken by the families of the husband and wife. And because the instant talaq doesn’t offer the conciliation, it shall not be appropriate.
Is pronouncing triple talaq an offence?
- It is fundamental to mention that the judiciary has only the role of reviewing the law but the law is primarily made by the legislature. Therefore until unless the government doesn’t support and brings amendments in the personal law, nothing much will change. It is required that the government must frame the laws to eliminate the practice and it seems that the government is quite interested in eradicating the cruel practice as the Lok Sabha on the 28th of December is all set to propose a bill on triple talaq based on the supreme court judgment. The bill focuses to make the husband liable for the criminal offence if he utters talaq three times at one time with the intention to invalidate the marriage. Law minister has confirmed that Muslim women (protection of rights of marriage) bill, is listed for introduction on the 28th December. The bill has been prepared by inter-ministerial headed by Rajnath Singh to make triple talaq or talaq-ul-Biddat invalid instantly in any form whether written, spoken or electronic communicated shall be punishable with the imprisoned up to three years.
- It further enunciates that the husband could also be fined and quantum of fine would be decided by the magistrate hearing the case. The proposed law not just offers to the victim to approach the magistrate against the husband but also to seek “subsistence allowance” for herself and minor children.
NOTE – Subsistence allowance means the women may seek the action for the maintenance of herself and her ‘minor children’ from the husband. The women may also seek the custody of the minor children from the magistrate. The magistrate shall take a final call and his decision shall be final.
Is the bill comprehensive?
- Though the government has exhibited the intolerant approach towards this taboo by making it a NON-BAILABLE and COGNIZABLE OFFENCE and attaching a penalty and imprisonment up to three years. But it fails to submit alternative methods to it. The bill must provide the procedure of divorce which is not cruel to either party. They must adopt talaq-e-Ahsan which is regarded as the most proper method of divorce and was also professed by the Prophet. Further, it must also involve reconciliation and mediation between husband and wife lasting for minimum 90 days.
- Bhartiya Muslim Mahila associations the forefront association to battle against triple talaq has developed a method of divorce based on Quran. The proposal has been prepared and has been sent to the government. Now the rest lies with the parliament to accept it or reject it, whatever they opt it must be hard enough to eliminate it from Indian society.
- The government has shown a stern and an uncompromising attitude towards felonious practice involving extreme harassment onto the women. However, it is required that the government must bring into limelight the policies curbing this menace as soon as possible. Apart from this looking at the illiteracy level and the dominance over the women, it is required that the government must allocate the responsibility over to some organisations which must work to educate the women about various laws that have been enacted to protect their rights and to encourage them to speak against the undue behaviour of the husbands.
- The government must try to incorporate various other practices which harm the respect of the women. Practices such as ‘nikah Halala’ one of the most outrageous practices involving the illicit desire of the religious leaders must be amputated as soon as possible. Other practices such as polygamy, minors marriage, mental and physical harassment of the wife, forced sex by the husband, marriage with huge age gap must be curbed.
This was all about the Current status of Triple Talaq. Comment below and let us know your views on the current status of Triple Talaq