Author: Shubhangi Raj, Banasthali Vidyapith
DATE OF JUDGEMENT: August 22nd 2017
BENCH: Hon’ble Justice Jagdish Singh Khehar, Hon’ble Justice Kurian Joseph, Hon’ble Justice Rohinton Fali Nariman, Hon’ble Justice Uday Umesh Lalit, Hon’ble Justice S. Abdul Nazeer
INTRODUCTION: The following article will explain the many aspects of Triple Talaq, including its legal background in India, its importance under Muslim Personal Law, and its judicial history. In Shayara Bano & Ors. Vs. Union of India & Ors., the Hon. Supreme Court of India heard an extended oral argument on these matters. It was concluded that the process was null and void and that the conduct violated Article 14 of the Constitution.
Shayara Bano filed a legal action against the Ministry of Women and Child Development Secretary the Union of India and others. Shayara Bano is a member of the Muslim community and she is a woman. After 15 years of marriage to Rizwan Ahmed, the couple used talaq-e-bidat to get a divorce in 2016. In the Muslim community, one method of divorcing is by triple talaq. When a guy gives his wife the word “talaq” three times in a row, the couple gets divorced right away. The case’s central question was whether triple talaq should be outlawed.
UNDERSTANDING THE PRACTICE OF TRIPLE TALAQ
Triple Talaq, also known as Talaq-E-Biddat, is a type of divorce that is common in Islam. It allowed a Muslim man to immediately get a divorce from his wife by using the Arabic phrase for divorce three times. The announcement may be made verbally, in writing, or—in more modern times—through electronic channels like social media, email, SMS, and phone calls. It is one of the various divorce procedures allowed under Shariat law. The woman did not have to be present when the divorce became official, and the husband was not required to give a reason for the split. The divorce became final after the wife’s pregnancy during a period of “iddat,” which is the term for the waiting period a Muslim woman must observe following her husband’s death or divorce. During this time, she is not allowed to wed another man to determine the child’s father.
WHY DOES IT TRIGGER PROBLEMS IN INDIA?
Within the conventional Islamic legal system, triple talaq was seen as an especially unacceptable, yet lawfully recognized, divorce procedure. Since the early 20th century, however, there has been a growing unhappiness with the old Islamic rule of divorce due to shifting global social conditions, and some modifications have been implemented in nations other than India. In India, Muslim couples are exempt from the requirement to register their marriage, in contrast to most Muslim-majority nations. Unless the couple chooses to register their marriage under the Special Marriage Act of 1954, Muslim marriages in India are regarded as private affairs. These historical circumstances prevented India from enacting the laws that other nations have put in place to restrict a husband’s unilateral right to divorce and to outlaw triple talaq. That is the source of the triple talaq issue.
FACTS OF THE CASE
Like other women in the nation, Muslim women lag behind in terms of self-sufficiency and high-quality education. They are subject to limitations and are not permitted to work or study. As a result, the husband’s post-divorce obligations grow since he must continue to support his wife.
For fifteen years, Shayara Bano was married to Rizwan Ahmed. In 2016, her spouse obtained a divorce from her triple talaq, or talaq-e-bidat. Citing Articles 14, 15, 21, and 25 of the constitution, Bano has ruled that practices including polygamy, triple talaq, and nikah halala are unlawful.
ISSUE RAISED
Whether Triple Talaq’s continued use violates fundamental rights. Whether or not it is acceptable to perform talaq-e-bidat?
JUDGEMTENT
After six days of arguments and hearing from each side, the court ruled by 3.2 majority that the practice was illegal. The court mandated that legislation forbidding the practice of triple talaq be passed by Parliament. The five-judge Supreme Court bench ruled that triple talaq is not governed by the 1937 Shariat Act.
Talaq-e-biddat is provided for in Muslim Law Proposal (Shariat) 8 of 1937, according to Justices Rohinton Nariman and Uday Lalit. They maintained that it was obvious that the act was arbitrary and unconstitutional. Triple talaqs have no legal standing because they are forbidden by the Qur’an, according to Judge Kurian Joseph’s unanimous ruling. He stated, “What is considered wrong in the Holy Quran is not good in Shariat, and what is bad in theology is bad in law.” Specifically, during their discussions on Articles 25 and 44 of the Constituent Assembly, Chief Justice Khehar and Justice Abdul Nazeer, in their minority dissents, connected the status of fundamental rights to the advancement of the law of the person, or the statute of law. Claimed to be a special feature. Thus, he is protected under Article 25. Furthermore, the Act is a remedy for gender discrimination in talaq-e-biddat, even though it does not question the validity of such practices.
GOVERNMENT INITIATIVES
To curtail the practice and minimise cases of triple talaq in the country, the Parliament of India resolved to make triple talaq a punishable behaviour and approved the Muslim Women (Protection of Rights on Marriage) Act, 2019, following the Court’s decision in 2017. Section 3 of Chapter 2 of the Act proclaims Talaq-e-Biddat invalid and illegitimate. Section 4 specifies the punishment that must be imposed on a guy who attempts to divorce his wife using talaq-e-bidat or triple talaq. The punishment might include up to three years in prison and a fine. The wife is also entitled to an amount or allowance from her husband for herself and her children, as specified in Section 5 of the Act. Section 7 makes the pronouncement of triple talaq a cognizable and compoundable offense, and the husband is not allowed to be released on bail unless the court finds substantial grounds to do so.
CONCLUSION
The Triple Talaq decision was unquestionably a historic turning point in this country’s legal history, particularly in the field of private and personal laws. It has given us several options for dealing with them, the most notable of which is Judge Joseph’s “culture-based” ruling. This ruling demonstrates that the Supreme Court has learned from its blunders in the sphere of personal law.
Despite the lack of clarity about gender equity and inequality in personal law, and how to solve them, this was a positive move. Husbands could no longer abandon their wives based on whims or vanity, thereby ending the union. The courts determined that equality, particularly gender equality, is more than just a theoretical concept. Meanwhile, the public is concerned about the state of minority banks. In conclusion, the gender gap in Muslim divorce rates is a stronger reason for removing the triple talak than the difference between Muslim and Hindu women. This, coupled with the viewpoint of the Bharatiya Muslim Mahila Andolan and 1,000 registered Shayara Bano followers, should be considered while reaching a decision. This law strengthens human rights and promotes gender equality. upon the enactment of this law, women and their children will get an allowance, or a defined sum, upon divorce.
It’s time to look into those activities as well to see if they’re harming society, and if so, they should be abolished. One of the most effective approaches to eliminate these is to implement a ‘UNIFORM CIVIL CODE’. A Uniform Civil Code will not only keep them in control, but will also eliminate some of the harmful practices. It will be a positive step towards the integrity of the nation. There has been much debate over its establishment, but it should now be implemented rather than argued. People must understand that it will not cause disorder, nor will it attack any specific religion or group, but rather will promote harmony through shared codified law in which every faith, its core customs, and community will have an equal position. The sooner the authorities and government recognize this, the faster the task will be completed and society will become a better place to live.
FAQs:
What does it mean by triple talaq?
Triple talaq, also known as instantaneous talaq or Talaq-e-biddat, is a type of talaq in which the marriage is terminated as soon as the husband says the word “talaq” three times in a single sentence. It is regarded the most forbidden form of talaq because it is irreversible as soon as it is declared.
Do Muslim women have a claim to maintenance after divorce?
Yes, a Muslim woman is entitled to maintenance once she divorces her husband. According to Section 125 of the Criminal Procedure Code of 1973, a husband must support his wife after a divorce until she remarries. Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, also address the maintenance of a wife upon divorce.
What specifically does the term Halala mean?
Nikah halala (also known as tahleel marriage) is a practice in which a woman marries another man, consummates the marriage, and then divorces him again in order to remarry her former husband.
What is the Iddat period?
In a Muslim marriage, the Iddat period after divorce means that during that period, the wife is not permitted to marry or have sexual relations with anyone else. Only women are required to observe the Iddat period under Muslim law.
