Author: Bhumi Kamble, Dr D.Y. Patil College of Law, Navi Mumbai
INTRODUCTION
Human rights are basically about equality and non-discrimination, but that is not how they have always been applied. The idea that women are beneath males and will never be on par with them has been acknowledged, if not outright preached, throughout history. Women still do not have the status in society that they deserve, even in the modern day.
Even though girls have demonstrated their talent and brilliance in several domains, the belief that females are less valuable than men persist. Women’s rights problems are therefore becoming increasingly important. Within the realm of Muslim personal law, Muslim women have long been subjected to tyranny due to the practice of Talaq-e-biddat, often known as the triple Talaq.
This custom undermines the holy institution of marriage by caving in to a husband’s desires. The Indian Constitution provides freedom and equality regardless of a person’s gender or religion; however, this practice basically defies the letter of the constitution. However, the Supreme Court has categorically declared triple Talaq to be illegal in the Shayara Bano v. Union of India case. In response to this ruling, the Muslim Women (Protection of Rights on Marriage) Bill was presented in 2017, making the practice illegal and imposing a three-year jail penalty on those found guilty.
CONCEPT OF TRIPLE TALAQ
Since marriage is seen as an act of ibadat (worship), it has always been a devout and sacred institution in Muslim law. Because marriage is revered in society, it is not acceptable for it to fail.
According to Islamic law, one way a marriage might end is by the Talaq-e-biddat, also referred to as the “triple Talaq.” The way it happens is that the spouse pronounces the word Talaq three times in a row. The husband’s purpose to dissolve the marriage must be made apparent in the words for it to be considered a legitimate Talaq. Because triple talaq is irreversible, it has historically been a source of oppression for Muslim women.
The Muslim Women (Protection of Rights on Marriage) Bill, 2017, which was enacted by the Lok Sabha, deemed the custom illegal, and made it a crime. There was a lot of hostility to the Bill since it suggested that the simple act of saying “Talaq” three times would be considered a crime for which there would be no need for bail. The reason given for this objection was the risk of its misuse. In India, triple talaq was outlawed on August 1, 2019. On July 26, 2019, the Muslim Women (Protection of Rights on Marriage) Bill, 2019 was approved. It declared immediate triple talaq—whether spoken, written, or delivered electronically—to be illegal and imposed a maximum three-year jail sentence on anyone who practise it.
ORIGIN OF TRIPLE TALAQ
It was intended that the Arabian polity before to Islam would have been ignorant and disorderly. Man has never been able to live a real life here. Just the Prophet’s declaration brought about a shift in circumstances. A man and a woman may have as many spouses as they wanted at this time. The Prophet outlined the terms of separation and marriage. He stopped the instruction that was offered in the Arabian state prior to Islam. As thus, the irreversible act of triple Talaq could never be upheld by the Prophet. Since biddat denotes progress, it is now an improved kind of division that the Prophet did not establish. With the advancement of technology and the use of modern equipment for triple Talaq correspondence, the situation has become increasingly unfortunate.
With the Arab conquest of Syria, Egypt, and Persian regions, the triple Talaq began. The guys were drawn into the Syrian and Egyptian women’s networks. The women from Syria and Egypt were willing to accept them only if they spoke Talaq to their wives in three sittings at home. The Muslim males understood that this type of Talaq was invalid after learning about the practice. They anticipated being able to marry their spouses in this manner as well. They agreed to declare triple Talaq and split from their spouses since they anticipated this. This marks the beginning of the instruction. This took place under the reign of Caliph Umar the Second. As soon as he learnt that guys were abusing Talaq, he declared it to be official with the intention of making men hate both women. This was merely a temporary response to the guys who had misled their family.
THE LANDMARK JUDGEMENT
The whole right to practise and spread any religion is guaranteed by Article 25 of the Constitution. Like all other Fundamental Rights, it is subject to restrictions and does not guarantee stringent actions that would negatively affect citizens’ access to government aid. As a result, Article 14—which guarantees the Right to Equality—supplants Article 25 since triple talaq prevents a Muslim woman from being uniform under the law.
Article 15 (1), which states that the State will not persecute any resident based on only their race, religion, sex, or social status, also applies to Article 25. Triple Talaq violates Article 15 (1) of the Constitution since it does not benefit Muslim women. Nonetheless, triple talaq is regarded as a legal right under section 2 of the Muslim Personal Law (Shariat) Application Act of 1937, placing it inside the purview of Article 13 of the Constitution. Article 13 defines ‘law’ and states that no legislation passed before or after the Constitution’s adoption will violate any of the fundamental rights.
Shayara Bano was married for fifteen years at the time of the historic case of Shayara Bano and Ors V. Union of India and Ors. Using triple Talaq, or Talaq-e-biddat, her husband divorced her in 2016. This is an Islamic custom that allows males to unilaterally and arbitrarily declare an immediate and final separation by saying the Arabic word for divorce, “Talaq,” three times in a row, either orally, in writing, or, more recently, electronically.
Before the Indian Supreme Court, Ms. Bano said that three customs were unconstitutional: polygamy, triple talaq, and nikah halala, which requires women to marry and divorce another man before being able to remarry after triple talaq.
Article 14 (equality before the law), Article 15(1) (prohibition of discrimination including on the ground of gender), Article 21 (right to life), and Article 25 (freedom of religion) are among the fundamental rights under the Indian Constitution that she specifically claimed they violated. Her appeal emphasised the serious implications of protecting against these acts for maintaining a life of dignity. It further stated that failure to end de jure (formal) and de facto (substantive) discrimination against women, including by non-State actors, breaches women’s civil, economic, social, and cultural rights as outlined in international treaties and covenants, in addition to violating the most fundamental human rights of women.
In the Triple Talaq case, the five-judge Supreme Court panel rendered a decision declaring the practice to be unconstitutional and unlawful. Five Muslim women submitted the petitions, which contested the legitimacy of triple talaq, or divorce, within the Muslim community.
ROLE OF LEGISLATURE
The Minister of Law and Justice, Mr. Ravi Shankar Prasad, introduced the Muslim Women (Protection of Rights on Marriage) Bill, 2019 in the Lok Sabha on June 21, 2019. The Bill declares all Talaq’s statements, whether they are made in writing or electronically, to be illegal and invalid. It describes Talaq as Talaq-e-biddat or another comparable form of Talaq expressed by a Muslim man that creates irreversible division. Talaq-e-biddat refers to the practice of applying certain Muslim rules, in which a Muslim man can instantly and irrevocably separate his better half by declaring “Talaq” three times at once. The Bill declares that talaq is a crime that can result in up to three years in jail and a fine.
Only if information pertaining to the offence is provided by the married woman (against whom Talaq has been declared) or by anybody connected to her via marriage or blood will the offence be considered cognisable. The Bill stipulates that the Magistrate may grant the accused person bail. Bail may be granted only after the woman against whom Talaq has been expressed is heard, and only if the magistrate determines that there are reasonable grounds to grant bail.
The Magistrate may choose to escalate the offence at the request of the woman who has been the target of the declared Talaq. Intensifying refers to the process by which the parties agree to end legal proceedings and resolve the dispute.
The Magistrate may choose to escalate the offence at the request of the woman who has been the target of the declared Talaq. Intensifying refers to the process by which the parties agree to end legal proceedings and resolve the dispute. The Magistrate will determine the conditions and circumstances surrounding the aggravation of the offence.
A Muslim woman who has been accused of talaq is eligible to ask her spouse for resource remittances for both herself and her dependent children. The Magistrate will determine the extent of the compensation. A Muslim lady who has been the target of such a declaration of Talaq has the right to guard her small children. The Magistrate will oversee how such detention is conducted.
CONCLUSION
Therefore, it is generally assumed that the governing body and legal executive took a significant step when they declared Triple Talaq to be illegal or invalid. For all the women who were subjected to its abuse, it was like the fulfilment of their greatest fantasy. People used it as a plaything, and the word “talaq” was frequently used in written, spoken, or electronic forms. This led to a transformation of norms that did not compromise the rights of Muslim women. According to Hindu law, talaq, or separation, must be the last resort and cannot be carried out only on a minor point in the marriage.
FAQ’S
What is the punishment of Triple Talaq in India?
The maximum sentence for instant triple talaq is three years in jail and a fine. The spouse or a blood relative’s complaint to the police will be the only one taken seriously. In matters of triple talaq bail cannot be granted or if granted such power rests in the hands of a magistrate and not of police.
When was Triple Talaq banned in India?
On August 22, 2017 the Supreme Court banned the practice of Triple Talaq declaring it as unconstitutional and void.
What is the name of Triple Talaq case of 2017?
Sharaya Bano v. Union of India
