Author: AAROHI JAIN, RENASSIANCE LAW COLLEGE
ABSTRACT The Triple Talaq Bill is not about politics but empowerment and justice for women. It is not about any specific religion or community. It is about humanity and justice. – Union Law Minister Ravi Shankar Prasad. The struggle for women’s rights in a country like India is a huge challenge as seen in the case of Shayra Bano vs the Union of India, known as triple talaq or talaq-e-Biddat where a husband was allowed to unilaterally divorce his wife by uttering the word talaq three times in one sitting, often without the wife’s consent. And does not access any such right. This case questions the essential element of divorce mentioned in the Quran and also the scope of Article 25, which safeguards the religious rights. This case highlights the unconstitutional activities such as polygamy, nikah halala, triple talaq malice practised under the Muslim Personal Law. Later, the Parliament enacted the Muslim Women Protection Act in 2019 for the protection of women’s rights in marriage. This was the landmark judgment of the Supreme Court which safeguards the fundamental rights such as Article 14, 15 and 21.
INTRODUCTION
The triple talaq case was the landmark judgement by the Supreme Court. This issue elementary emerged when the Bhartiya Muslim Mahila Andolan launched a campaign on a ban on the triple talaq system, following which the case of Shayra Bano and other petitions before the Supreme Court of India was considered regarding certain aspects of Muslim personal law to be gender biased and they violate the fundamental rights of women. This case highlights the worrisome and malicious practices performed by a husband arbitrarily and without his wife’s consent.
Citation – AIR 2017 9 SCC 1 (SC)
BACKGROUND
A Muslim woman survivor of dowry harassment was divorced by her husband through triple talaq. She then filed a petition before the apex court against triple talaq, nikah halal, polygamy and unconstitutional behaviour against women as Muslim personal law violates Article 14, 15, 21. It is supported and criticized by many organization. Triple talaq was already declared illegal by a previous judgment of the apex court. The court accepted the petition by Shayara Bano and formed a five-judge constitutional bench in 2017. The first hearing was held on May 11 2017, and August 22 of the same year, which gave the decision on the case.
ISSUE OF THE CASE
Is the practice of triple talaq constitutional?
Is the practice of triple-e-biddat (instantaneous triple talaq) in Muslim personal law protected under Article 25 of the Constitution?
Does the Shariat Act give triple talaq Applicability?
ARGUMENT SUPPORTING SHAYARA BANO
Mr Amit Chandan made an advert argument by arguing that Muslim personal law doesn’t recognize a form of divorce, talaq-e-biddat. Divorce in Muslim law requires reasonable cause and a precedent attempt at reconciliation. He also made an argument by saying that in the Quran, after the failed attempt of reconciliation, they declared the divorced couple also; it is mentioned in the Quran that with each pronouncement of talaq, a period of three months waiting period for reconciliation is mandatory for divorce. He mentioned the case Shamim Ara vs State of Uttar Pradesh (2002), where the court gave the guidelines for the validity of talaq. He urged the court to ban this form of divorce because it violates articles 14, 15, and if banned, the Dissolution of Muslim Marriage Act, 1939 would apply equally to all other communities. Mr Salman Khurisd also argued about the petition. He made an argument by pointing out that 90% of the Muslim community is Sunni and they are not practising this form of talaq. Also claim the Quran mentions the period of reconciliation during the divorce period.
RESPONDENT ARGUMENT
The respondent initially argued that Muslim marriages are contract-based and that judicial reviews are not acknowledged within these unions. He further stated that Muslim women do not face discrimination, as there are alternative remedies accessible to them, such as the Special Marriage Act 1954. insisting higher Mehar amount, by delegating divorce rights to himself. He also argues that Article 13 does not include personal laws and can only be accessed when parliament make changes in secular activities under Article 25 (2). They made an argument by declaring the constitutionality of three-ground triple talaq, polygamy, and nikah halala. He also argues based on the case of Narasa Appa Mali and the Masilamani case. He made a statement that triple talaq was protected by Articles 14, 15 and 21. Also, argue about the scope of Article 25 of the Constitution. He argues that Shariat law does not codify Muslim personal law but lays down the rules of decision in matters of custom or usage to the contrary. He pointed out the definition of law in a constitution that does not cover personal law at all.
JUDGEMENT
The decision was given in favour of Shayara Bano and others. It declared the practice of triple talaq unconstitutional with a majority of 3:2 and all directed the legislature to take measures to stop the abuse against women. The court emphasized that the practice of triple talaq is only followed by the Hanafi school, which is nearly 10% of the Muslim population and considered sinful by others. The practice is neither encouraged by the Prophet nor does the Quran mention the practice of divorce. The court held that this practice violates the fundamental right under articles 14 and 15. The Justice Nariman, Justice Lalit, and Justice Joshep viewed the Shayara Bano case as triple talaq arbitrary and a violation of gender equality. Following the judgement, the government of India enacted the Muslim Women Protection of Rights on Marriage Act 2019, which criminalize the practice with the imprisonment of 3 years.
VIOLATION OF ARTICLES 14&15
The practice of triple talaq was violating the right of equality and any form of discrimination based on sex, gender, creed, or religion. The right of instant talaq is only provided to the husband, and arbitrary practice without any restriction. According to the doctrine of eclipse and severability, if any law contradicts a fundamental right, then the law is struck down. The petition in this case questioned the discrimination in terms of divorce, as other women enjoy the maintenance and divorce rights.
VIOLATION OF ARTICLE 25
Article 25 guarantees the citizen the right to practice and the right to choose a religion. In this case argument relies on whether it is an essential practice of religion or not. This article is not absolute and is subject to numerous restrictions. During the case, the court observed that this form of talaq lacks sanction in the Quran and it is not an essential practice of Muslim personal law. The court states that what is evil in theology cannot be virtuous in the eye of the law and should be protected under the shelter of legislation.
VIOLATION OF ARTICLE 21
This article guarantees the right to dignity and personal liberty, and with the practice of instant divorce, deprives her of the opportunity of reconciliation and explanation.
CASE LAW
1.MOHD RASHID AHMAD VS THE STATE OF UTTAR PRADESH – This case was used as a legal precedent in the Shayara Bano case. In this case court concluded that triple talaq is not an essential practice of Muslim personal law, and the validity of triple talaq is nothing that a practice was not recognized as under Muslim law.
2. SARLA MUDGAL VS UNION OF INDIA (1995) – In this case, the court addressed the issue related to bigamy and the conflict between personal law and the need for a uniform civil code, also underscoring the importance of legal uniformity in marriage and divorce matter.
3. MOHD AHMED KHAN VS SHAH BANO BEGUM – In this case court emphasized the need for maintenance for divorced Muslim women under Article 125 of the Civil Procedure Code.
CONCLUSION
Triple talaq is a form of divorce where, within a minute, marriage is broken without going back, and all the rights are only entitled to the husband. If, after some time husband realizes his mistake, then the wife has to go through the atrocities of nikah halal, which is unconstitutional in itself. It took many years for the court to realize that these practices violate the fundamental right, but also are against human rights and are bad for society. They should now realize the need for a uniform civil code, as under the Hindu Marriage Act, women have equal divorce rights just like men. It is high time to check on the worrisome practice which is affecting society, and to get rid of it, the UNIFORM CIVIL CODE will not only keep a check on the rooted evil practice but neutrality it. Triple talaq is just one example of such practice, but there are penalty for other practices and lots of malicious activities are already banned.
FAQs
1. DO MUSLIM WOMEN GET MAINTENANCE AFTER DIVORCE?
Yes, a Muslim women are entitled to be maintained by her husband. According to Article 125 of the Criminal Procedure Code, the Muslim woman should be maintained by her husband until she remarries.
2. WHAT DO YOU MEAN BY NIKHA HALALA?
Nikah halal is an evil practice followed in Muslim personal law, especially under the Hanafi school. If the husband divorces the wife and wants to remarry her, she has to perform this worrisome practice to marry another man and complete the duties of marriage.
3. DO MUSLIM WOMEN ALSO HAVE THE RIGHT TO POLYGAMY?
No, Muslim women are not allowed to perform the practice of polygamy as Muslim law is governed by the Qur’an, and this is considered a sinful activity in the Quran.
