TRIPLE TALAQ->
INTRODUCTION-Among almost all the nations of antiquity, divorce was regarded as a natural corollary or martial rights. Islam is perhaps the first religion in the world which has expressly recognised the termination of marriage by way of divorce.
Under the Muslim Law, a marriage is dissolved either by the death of the husband or wife, or by divorce. In which Talaq-ul-biddat (Disapproved mode of talaq) is a sinful form of divorce. It is the irregular mode of talaq introduced by Omayyad’s to escape the strictness of law.
Triple talaq is the three pronouncements made during a single tuhr either in one sentence or in separate sentence. It is also known as oral talaq. This is an irrevocable form of divorce in Muslim law. In this law, wife cannot divorce husband by means of triple talaq. Women had to plead Infront of court for divorcing her husband under Muslim Personal Law Application Act, 1937.
Under the talaq-ul-biddat, once definite complete separation has taken place parties so-separated cannot remarry without the formality of the women marrying another man and being divorced from him.
HISTORY AND ORIGIN-Triple talaq is a recognised but disapproved form of divorce and it is considered by the Islamic jurist as an innovation within the fold of Shariat. It commands neither the sanction of Holy Quran nor the approval of Holy Prophet. It was also not in practice during the lifetime of first Caliph Abu Bakar and for more than two years during the second Caliph Umars time. Later, Hazarat Umar permitted it on account of certain peculiar situation.
When the Arabs conquered Syria, Egypt, Persia, etc. They found woman there much better in appearance as compared to Arabian women and hence they wanted to marry them. But the Egyptian and Syrian woman insisted that to marry them, they should divorce to their existing wives instantaneously by pronouncing three divorces in one setting. The condition was readily acceptable to the Arabs because they knew that in Islam divorce is permissible only twice in two separate period of tuhar and its reptation at one setting is unislamic, void and shall not be effective. In this way, they could not only marry these women, but also retain their existing wives.
This fact was reported to the second Caliph Hazrat Umar. The Caliph Umar then to prevent the misuse of the religion by the unscrupulous husbands decreed that even repetition of the word talaq, talaq, talaq at one sitting would dissolve the marriage irrevocably. It was an administrative measure of Caliph Umar to meet an emergency and not to make it a law permanently. But unfortunately, the Hanafi Jurists later at the strength of this instant administrative order of second Caliph declared this form of divorce valid and pave religious sanction to it.
Holy Quran, the paramount source of Islamic jurisprudence has not obtained at the three divorces pronounced in a single breath would have the effect of three separate divorces. To this effect the relevant verse of the Quran can be relied upon.” A divorce is only permissible twice; after that, the parties should either hold together on equitable terms or separate with kindness.”
Judicial pronouncements, on the subject of talaq-e-biddat also taken into consideration –
> Rashid Ahmad vs. Anisa khatun,
>Jiauddin Ahmed vs. Anwara Begum,
>Rukia khatun vs. Abdul Khalique Laskar,
> Masroor Ahmed vs. State (NCT OF DELHI),
> Nazeer vs. Shameema.
LATEST JUDICIAL TREND- The Hon. Supreme Court of India passed a landmark judgment on August 22, 2017. In which it was held that the practice of Triple Talaq as unconstitutional and the practice of this be void. This was held in the case of Shayara Bano vs union of India and Ors, (2017)9 SCC 1, and presided over by the Justice Jagdish Singh Kehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Nariman, Justice Uday Lalit, Justice K.M. Joseph.
FACTS OF THE CASE- Shayara Bano and her husband, Rizwan Ahmed, married in April 2002 in the state of Uttar Pradesh. According to Shayara Bano her husband’s family compelled her to give dowry for the marriage. After that her husband and her in-laws allegedly drugged, abused, and eventually abandoned her when she was ill.
In October 2015, Ahmed divorced Bano using talaq-e-biddat, called as instantaneous triple talaq.
Shayara Bano filed a petitioned before the Hon. Supreme Court for a declaration about the practice of talaq-e-biddat, polygamy, and nikah-halala, are unconstitutional because they violate the Fundamental Rights of Muslim women provided in the Article 14, 15, 21, and 25 of the constitution of India.
This contention of petitioner was supported by the Union of India, as were as by the women’s rights organisations such as Bebak collective and Bhartiya Muslim Mahila Andolan.
In consequences, the constitutionality of Triple Talaq was called into question in front of the Supreme Court constitution bench of five judges and formulated the following issues:
> Is talaq-e-biddat is essential Islamic practice and an issue of faith?
> Is talaq-e-biddat is sinful, sanction of law?
> Is triple talaq a violation of any fundamental rights?
> Constitutionality morality and talaq-e-biddat?
Other issues also raised in the connected writ petitions; they are polygamy and halala.
During the hearing. References of the holy Quran were also made. And submitted that talaq-e-biddat did not recognize in the holy Quran.
JUDGMENT- The constitutional Bench of the Hon. Supreme Court, by 3:2 decision, put aside and proclaimed the act of triple talaq is to be unconstitutional under the Article 14 of the constitution of India.
The hon. Supreme Court held that the act of talaq-e-biddat does not safeguard the special case in Article 25 which is subjected to the PART III of the Indian constitution, and it violates constitutional morality.
Triple talaq is not considered by the Muslim personal law (Shariat law) and this is totally against the Quranic principle, hence receiving no legal sanctity. Triple talaq is not followed by in a majority. So, not and important religious practice.
If the breach of any religious practice causes any interference to the state, then that right is violated under the Article 25 of the Indian constitution.
Parliament was guided by the court to bring legislative changes against the practice of triple talaq.
By the unreasonableness, triple talaq was held unconstitutional, and unislamic by the jury member namely, J. Nariman, Lalit, and Joseph.
CONCLUSION- Triple talaq was not only an aspect of Islamic tradition but its practice infringed the rights of Muslim Women. This ruling leads towards the Muslim Women Empowerment and towards safeguarding the rights of Muslim Women provided in the Indian Constitution.
Hence, triple talaq goes against the right of equality of Muslim women and indicates dominance of men over women. It gave men the right of arbitrarily divorce against the will of women and without a valid reason.
The Muslim Women (PROTECTION OF RIGHTS ON MARRIAGE) Act, 2019 was enacted on 30 July 2019.By this Act Triple Talaq was held illegal in India from the date 1-August-2019 and any other form of Triple Talaq, orally or in written, via electronic form or communicated through SMS, email will be void and unlawful. Penalties and imprisonment for above three years also included in the provision of this Act.
AUTHOR: ANJANA ARYA,
ST. WILFREDS COLLEGE OF LAW, JAIPUR
