This article is written by Ayushi Dubey.

Abstract

The essay discusses the position of women in society and how they have been struggling for their rights since time immemorial. Further it explains India’s stand on divorce and its position and meaning in personal laws of all religion and then specifically in Islam. The essay then focuses on Talaq-ul-Biddat i.e. instant Triple Talaq and explains its importance in Islam and how it is equally condemned by the Quran as well. It further tries to bring the global perspective of instant Triple Talaq and put forward the point that how major Islamic countries have also abolished it on the ground of it being discriminatory on the part of the woman. In India, instant Triple Talaq has been held unconstitutional in a recent judgment and also an ordinance had been passed for the same. The author studied the recent bill on the same, which was passed by the Lok Sabha but could not pass through Rajya Sabha and hence lapsed on the dissolution of Lok Sabha and is of the view that the practice of instant Triple Talaq is arbitrary in nature is against the fundamental right to equality of women and therefore, the legislature should make mandatory provisions for the same so that no more injustice could take place. 

Introduction

The title of the paper raises, the unanswered question of all the time, “where is a woman’s right to equality?” Even today, to many the word woman and right in the same sentence might not digest, because since ages women have to fight for something that they deserved as a human being i.e. their fundamental right of being treated equally, but they never got that, on the ground of being a part of a gender, which the so-called society considers as inferior and undeserving. The fight for equality has seen a recent storm, the storm of being divorced without even being informed about the reasons for the same i.e. the issue of instant Triple Talaq. Before we discuss the recent aspects of this issue, we shall look briefly towards the historical background of divorce in India. 

Talaq or divorce is a way of dissolution of marriage. It is a natural marital right which both spouses have. Divorce these days is acceptable in almost all forms of society and religion and the law has also given its due recognition. But still, in many religions it is amongst the most hateful thing permitted, the reason being that marriage is considered to be the holiest ties among the human race, especially in countries like ours. Divorce laws vary in every religion, in some religions, the legal procedures are used and some have their own religious customs and traditions to dissolve the matrimonial bonds. 

In India, Hindus never really had the concept of divorce because marriage was considered to be sacrosanct. It is considered that the marriage ties between two people are decided and created by God and hence humans don’t have the right to dissolve it. It was in 1955 when the Hindu Marriage Act was passed and divorce was recognized. But in Islam the case is different, they regard marriage or Nikkah not as a religious sacrament but as a secular bond, therefore, divorce/Talaq was something in the ambit of humans because it is a contract which can be dissolved. According to Quran, the relationship among spouses should ideally be based upon love and if marital harmony cannot be achieved then, the Quran allows the couple to put an end to it. But also, the prophets of Islam is reported to have said “with Allah, the most detestable of all things permitted is divorce”, and towards the end of his life he practically forbade its exercise by men without the intervention of an arbiter or judge. Hence, the provisions for divorce were always there, but it was advised to use it as the last resort. For a better understanding of the position of divorce laws in Islam we shall look upon the Classification of divorce in Islam: 

There are majorly two ways by which marriage in Islam can be dissolved: 

1. By the death of a party to the marriage
2. By divorce

Divorce further is classified into four categories: 

1. By husband: Talaq, Ila, Zihar
2. By wife: Talaq tafweez
3. By mutual consent: Khula and Mubarat
4. By judicial decree under the dissolution of Muslim Marriage Act, 1939: Lian and Fask.

Here we are concerned with Talaq which is further divided into three categories:

1.  Talaq-ul-Hasan
2.  Talaq-ul-Ahsan
3.  Talaq-ul-Biddat [Triple Talaq] 

Talaq-ul-biddat or instant triple talaq

It is an irrevocable and instant form of divorce in which the husband pronounces the word “Talaq” repeatedly three times and hence dissolves the marriage. In this type of divorce, the wife has no right to question the reason or motive behind the Talaq and nor she is entitled to be given any kind of explanation. Therefore, it is considered against equality and justice. Women are left with broken ties and are given no explanations. The question of maintenance is not even raised in this type of Talaq. 

“It is a sinful form of divorce. It is an irregular mode of Talaq introduced by Omeyyads in order to escape the strictness of the law. In Sarabhai v. Rabia Bai, it was said that Talaq-ul-Biddat is theologically improper. It has been maintained that this form of Talaq is improper from the moral point of view.”

Even the prophets and Quran argues that Talaq-ul-Biddat is a sinful form of divorce but, still it is being practiced from ages merely because it exists. Something that was relevant 1400 years ago not necessarily needs to be continued. With changing times things have to amend for the betterment of society and instant Triple Talaq is something that was not relevant even then, so, how would it work now? It is sinful since the time of origin, so there is no point in continuing its practice.

“Talaq-ul-Biddat, that is giving an irrevocable divorce at once or at one sitting or by pronouncing it in a tuhr once in an irrevocable manner without allowing the period of waiting for reconciliation or without allowing the will of Allah to bring about reunion, by removing differences or cause, of differences and helping the two in solving their differences, runs counter to the mandate of Holy Quran and has been regarded as, by all under Islam-Sunnat, to be sinful. 

We are living in the 21st century and we still have to argue for such basic rights when it comes to women. A woman who has been living with her husband for years is suddenly thrown out of her husband’ life, her home and was not even informed why? Taking consent is a far away thing! The patriarchal setup of the society has always treated women as chattels and therefore to them, there is no need to take consents and neither their opinions matter for them. And instant Triple Talaq is only one example, we have a list of so many issues where women have been treated unequally, be it be the Haji Ali Dargah issue or the Sabrimala Temple case, where arbitrary provisions restricted women to enter inside the sanctum sanctorum of Dargah and temple respectively. Here again, the Hon’ble Supreme Court has to interfere for the rights of women. The court, clearly in both the judgments removed the restrictions, made access of women in the places of their worship easy and held that equality shall prevail in all circumstances and even, if you talk about the right to religion, then what about a woman’s right to religion, unnecessary restrictions on their entry hamper their right to worship as well. 

Talaq-ul-biddat: and India’s current situation 

22 countries including Pakistan and Iran have abolished Triple Talaq either explicitly or implicitly. It is usually believed that religious minorities in a country are reluctant to changes, maybe because they feel that change in their personal laws might push their religion to a place where their religious identity would be at stake. In India, this can be clearly seen and hence it has always been difficult to change personal laws especially when it comes to religious minorities. But taking the example of Sri Lanka here, only 10% of its population is Muslim still, it struck down instant Triple Talaq in 2006 through an amendment to Sri Lanka’s Marriage and Divorce (Muslim) Act, 1951. 

“In this paper, Reforms in Triple Talaq in the personal laws of Muslim states and the Pakistani legal system: Continuity versus change, Dr Muhammad Munir, Professor of law and Director of the Shariah Academy, International Islamic University, Islamabad, rates the Lankan law as the “most ideal legislation on Triple Talaq.”

The other countries which have abolished Instant Triple Talaq include Cyprus and Turkey because they have adopted secular family laws. Some countries have abolished instant Triple Talaq because they do not recognize divorce outside the court such as Tunisia and Algeria. Iran has also abolished Instant Triple Talaq as it follows Shia Law and Instant Triple Talaq is a practice under the Sunni Law. 

The scenario, in India, is a bit different though, religious sentiments play a great role in decision making here and the absence of a Uniform Civil Code is one of the major disadvantages in the way of striking out certain practices that are a part of the system from time immemorial but nobody feels it correct to question the logic or legal reasoning behind that particular practice and instant Triple Talaq is one such example. 

In the recent judgment of Shayara Bano v. Union of India, a five-judge bench of the Hon’ble Supreme Court, by the majority of 3:2 has set aside the practice of Talaq-ul-biddat. The Coram consisted of Justice Jagdish Khehar (then CJI), Justice Kurian Joseph, Justice R F Nariman, Justice U U Lalit and Justice S Abdul Nazeer. 

The minority opinion i.e. the then Chief Justice and Justice S Abdul Nazeer, unanimously considered Talaq-ul-biddat as an essential religious practice under Article 25, under the Shariat Law and therefore, held that the court cannot interfere in the same. However, they agreed that the practice is discriminatory on the part of women but the fact that it is a part of the Hanafi School since 1400 years is something which the court cannot overlook and therefore, it is the legislature who can interfere in this by making proper laws in this regard and not the court. The right under Article 25, cannot be infringed by the court. They agreed to the fact that Talaq-ul-biddat is bad in theology but argued that it is accepted as valid law everywhere and merely because it is considered bad in theology they cannot strike it down.

To go from “all persons are equally entitled to freely practice religion” to “Article 25 protects personal laws” is to put language into a rack and torture it into a shapeless mass. What might have the Justice Khehar been thinking? Perhaps he was thinking this: personal law falls within religion. Article 25(1) protects religion. Therefore, Article 25(1) protects personal laws. That train of thought, however, misses the fact that Article 25(1) does not protect religion per se, but protects an individual’s freedom to practice her religion; in other words, it does not protect religious norms, rules, or institutions, but individual rights. Now, it might be argued that, potentially, a Muslim man could approach the Court and argue that by denying him the option of instant Triple Talaq, his Article 25(1) right was being violated; such a case, however (apart from being decided on separate grounds altogether), is conceptually different from conferring the “stature” of fundamental rights upon an entire system of (personal law) rules, and the distinction is crucial.

“We are satisfied, that the practice of ‘Talaq-e-biddat’ has to be considered integral to the religious denomination in question – Sunnis belonging to the Hanafi school. There is not the slightest reason for us to record otherwise. We are of the view, that the practice of ‘Talaq-e-biddat’, has had the sanction and approval of the religious denomination which practiced it, and as such, there can be no doubt that the practice, is a part of their personal law.”

Justice Kurian Joseph (majority opinion) by respectfully disagreeing to the then CJI denied agreeing that merely because Talaq-ul-biddat is an age-old practice, it can be considered as an essential religious practice of the Muslim law. He held that the Act of 1937 declared Shariat as law and hence “What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

Justice R F Nariman and Justice U U Lalit together agreed to that fact that “this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.” They also held that the practice is violating Article 14 of the constitution as the Muslim man holds the ultimate power in this regard whereas the woman has no say in it. The court also struck down the relevant part of Section 2 of 1937 Act under Article 13(1).

Hence, the practice by a majority opinion has been set aside on the grounds that the practice of instant Triple Talaq is discriminatory, against the dignity of women, against the principle of gender equality as well as gender equity and constitutional morality. And it was suggested that the legislature should make proper laws with regard to this. 

Legislature on the issue

After the judgment in 2017, the NDA government considering the seriousness of the situation proposed a bill in the parliament called the Muslim Women (Protection of Rights on Marriage) Bill, 2018 which held the declaration of Talaq as in Talaq-ul-biddat as void and illegal under its section 3. The Bill grants punishment for Muslim men falling under section 3 of the Bill, which may extend to 3 years and fine as well. 

“Law Minister Ravi Shankar Prasad, in the statement of objects and reasons attached to the Bill says that this legislation will, “help in ensuring the larger Constitutional goals of gender justice and gender equality of married Muslim women and help subserve their fundamental rights of non-discrimination and empowerment.”

The Act was passed through Lok Sabha but could not pass through Rajya Sabha and then due to the end of parliament session and consecutively the end of the tenure of the government, the bill has lapsed. Though the bill seeks for the betterment of Muslim women who suffered due to the age-old practice of Talaq-u-biddat but the way it seeks betterment, it faced a lot of criticism. Talaq-ul-biddat was an accepted practice till now and people were following it for various reasons. In the current scenario, all of a sudden, the state cannot hold this practice criminally liable. However, civil liability can be a solution for the time being but criminal liability would not help the situation in any way. How would sending the husband behind bars, for divorcing his wife through Talaq-ul-biddat, will help the wife who filed a complaint about the same. A Legislation surely needs to be enacted against the practice of instant Triple Talaq but considering the need of the society as well as the situation prevailing in the society, stringent actions in matrimonial issues will not help, but a solution which could help in making the situation better and prosper the family ties would help. 

Conclusion

Considering the social and historical background of India, a bitter truth to be accepted is that women are always considered as the inferior gender. The society has always and possibly even today is discriminating women. A woman’s opinion, beliefs, rights, choices were never given importance and instant Triple Talaq is an example of one such practice. Divorce, in the author’s opinion, is amongst the most important decision of a person’s life and it affects the lives of both spouses equally, then also, the so-called inferior gender has no say in it. 

We live in India, a patriarchal society in which women are brought up with the fact that their main goal in life is to be a good wife and imagine a situation in which your whole world breaks down in front of you just by saying a word repeatedly 3 times, you are left with god knows how many children, no education, no choices, no future, no maintenance, and eventually no means to live. We talk about equality, we talk about women empowerment, we say that women are no less than a man but is it actually a reality? It may be a bit easy for people who are well educated, who know their rights and remedies, if not given fair chances but what about those women who never went to school, who were married at the age of, maybe 13, who is a mother of 2 kids at the age of just 18 and now her only dream in life is to live happily with her family and then suddenly she has no clue of what wrong she did and been thrown out of the house to face a more difficult world. This is not a universal reality there are exceptions, it is not the man who is always on the wrong side but all that we are asking for is equality, whatever the situation may be equality is the basis of all. At least one deserves a reason; everyone has a chance to know- the right to be answered. 

Triple Talaq is in practice from centuries but injustice from centuries can never become a justice. A full stop is always required; there is always a need for amendment. We are talking about it, this is the first step, the apex court by setting aside the practice has taken the second step and did provide justice to all those who have been suffering from so long. However, there are still a number of women who are suffering. Even after the apex court passed this judgment the All India Muslim Personal Law Board has confirmed cases of instant Triple Talaq. This is because of the lack of proper execution and legal knowledge. Maintenance rights and all other rights should be given to the Muslim women as well and one day these little steps will take us to our destination of a Uniform Civil Code. 

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