LEGAL LITERACY

TRIPLE TALAQ

AMIT GROVER
A3221515130
BBA LLB(H)
SECTION B
SEMESTER 5
Triple Talaq

CONTEXT

Chapters Pages

Introduction

Source & Validity of Triple Talaq

Triple Talaq is against the progressive spirit of Quran

Triple Talaq is ultra vires to the Indian constitution

Islamic jurisprudence of other Islamic countries

Current Concerns

Case laws

Conclusion

Bibliography
INTRODUTION

“The relationship between husband and wife is always very deep but delicate. Trust is the
hallmark of maintaining relationship between husband & wife.”

Family is an integral part of human life. In a country like India where spirituality lives in air,
religion and beliefs are very sensitive issues. When India gained independence, the political
leadership and the framers of the constitution took note of the impeccable diversity of Indian
culture, and they deliberated on a framework that would provide for a unified but culturally
diverse nation, with harmonization of personal laws. The distinct personal laws that govern the
major religious groups are a major aspect of Indian multiculturalism and secularism, and support
specific gendered rights in family life. . The history of all matrimonial legislation will show that
at the outset conservative attitudes influenced the grounds on which separation or divorce could
be granted. Over the decades, a more liberal attitude has been adopted, fostered by recognition of
the need for the individual happiness of the adult parties directly involved. In Muslim
Community this liberal approach was from the very inset of the religious prologue. It
emphasized on individual freedom and provided for an honorable exit route to end painful
relationships through the introduction of TALAQ (or divorce). In a country like India where
Talaq is usually associated with an uncalled for social taboo, dissolution of marriage must be on
reasonable grounds and considering the socio-economic position of parties. This paper talks
about a peculiar customary practice of triple talaq where men enjoy unilateral right to pronounce
divorce to women without any chance of reconciliation or arbitration. All though there are clear

Qur’anic injunctions to the contrary, immediate triple divorce is permitted, destroying marital
life in one breath. The lives of Muslim women cannot be governed by archaic practices like
triple talaq. Muslim women should be governed by laws that treat them as equal citizens of
democratic India. Following case studies give us an insight of the misery and trauma which a
women faces when she is suddenly thrown to a world of socio- economic instability when her
husband pronounces unilateral, irrevocable Triple Talaq at his whims and fancies.
SOURCE AND VALIDITY OF TRIPLE TALAQ

The “practice of pronouncing unilateral irrevocable triple Talaq by Muslim husbands does not
keep up with the Quran’s progressive spirit, neither with the magnanimous ideals of equality and
justice of the Indian Constitution.” This practice is a particular confluence of Patriarchal
conservatism and ill-informed and shallow interpretation of religious text, that too to the
prejudice of women. When Talaq is said abruptly, then there is no possibility or scope for any
settlement, and any livelihood choices or options for women who, just are rendered alone and
single without any support system. It is a single right given to men, where men can decide,
choose and deliver at their own choice.

Triple Talaq Is Against The Progressive Spirit Of Quran

Quran gave rights to women 40,000 yrs ago. Spirit of Quran is about Justice and fairness (to all
including women). Yet the modernity of the Islamic jurisprudence falls prey to the stringent way
in which the rights of women are interpreted, though the interpretation may be opposed to logic
and principle.

Quranic validity of this practice: What is contested herein is a practice of Triple Talaq which
evolved in 2nd century during the period of Ommayed kings. Triple Talaq or Talaq ul biddat
applies to Muslim men by pronouncing their intention 3 times. According to Islam that should
happen over a period of 3 months, giving both the Parties time to think through the
consequences. Quran bears the credit of being one of the first holy texts to consider individual
freedom above community perceptions. Marriage in Islam is a civil contact and through divorce
(Talaq) it offers an honorable exist route from relations which no more fetch happiness.
Dissolution of Muslim marriages could be through two ways

Judicial Method {under Dissolution of Muslim Marriages Act, 1939}

Extra Judicial Method

Extra Judicial Method: This method of dissolution of marriage derives its basis from Chapter
II,Verse 229 which states : “Either retain them with humanity or dismiss them with kindness”

The two kinds of Talaq recognized by Hanafi sect of Muslims are :

Talaq-us-Sunnat

Talaq-ul-Bida

Talaq-us-Sunnat

Talaq-e-Ahsan Talaq-e-Hasan

one single pronouncement of divorce in period of

Talaq ul Bida/ Talaq ul Biddat If a man repeats the word Talaq thrice this is supposed to be
Talaq ul Biddat and hence instantly dissolving the marriage leaving no room either for
revocation of divorce during iddat or for renewal of marriage ever after that. Very unfortunately
Muslim men in India are blissfully unaware of the true Islamic law on divorce and believe the so
called Talaq-ul-Bidat to be the only Islamic way of divorcing their wives. This is indeed a
devastating state of affairs playing havoc with Muslim women. Abul -Ala- Maududi an eminent
Muslim theologise of the subcontinent has lamented

“Due to ignorance Muslims generally believe that divorce can be given only through triple
divorce formula, although it is an innovation and a sin leading to terrible consequences. If
people knew that triple divorce is unnecessary and even a single talaq would dissolve the
marriage leaving room for reconsideration, innumerable families could have been saved from
4
destruction.
The true Islamic law is in conformity with the breakdown theory of divorce. The Quran did not
specify any matrimonial offences. The prophet of Islam laid down no bars to matrimonial relief.
The lawgiver of Islam did not want the matter to be taken to the court at all, unless it became
unavoidable for the wife due to the age old predominance of man. Unequivocally declaring
divorce to be abghad al- mubaahaat (most detestable of all legally permissible things). The
following verses in Quran which reflects the progressive spirit of the holy text.

Sura No.2. Aayat No. 227/228- If their intention is firm for divorce (give them). The divorced
women shall wait for three monthly periods concerning them. Their husbands have the better
right to take them back in that period, if they wish for reconciliation. The women shall have
rights similar to the rights against them, according to what is equitable

Sura 4 Aayat no. 15- If you fear a break between them then appoint two Arbitrators, one from

his family and other from her family. If they seek to set things right, Allah will cause their

reconciliation.

In the case of Dagdu Chhotu Pathan v. Rahimbi Dagdu Pathan, a full bench of Bombay High
court took the view that a Muslim can give Talaq:

For reasonable cause/grounds , &

He has to follow the provision of arbitration for reconciliation.

In the case of Saleem Basha vs. Mumtaz Begam , it was, held that “ It is fallacy that a Muslim
male enjoys, under the Quranic law, unbridled authority to liquidate the marriage." Following
Quranic Aayats point towards the indomitable spirit it holds in respect to the dignity and grace of
women.

Sura 65 Aayat No. 1- If you divorce women, divorce them at their prescribed period and count
(accurately) their prescribed periods and fear Allah and turn them not out from their houses
nor shall they (themselves) leave, in case, they are guilty of some open lewdness. Sura 65
Aayat No: 2- Thus when they fulfill their term appointed, either take them back on equitable

terms or part with them on equitable terms and take witness- two persons among you,
endued with justice and establish the evidence for the sake of Allah. Islamic personal laws are
evolving within themselves, thus issues like triple Talaq are debated within the community. 93%
Islamic countries have banned the use of oral and triple Talaq. Professor Tahir Mahmood after
observing that the Hanafi rule is recognising and giving effect to improper Talaq which is not a
part of the original Islamic law, has stated “As this was never the intention of the jurists of the
past, a large number of Muslim countries have enacted laws
to outlaw all forms of Talaq-e-bidat. " A report by Syeda Saiyidain Hameed, a member of the
National Commission for Women refers to Muslim women as the weakest link in the generally
 Disempowered chain of Indian womanhood. In India we have arrived at this commonsense that
women in marriage have less rights then men. Article 25 and 26 of are equally meant for men
and women, whatever be the denomination.

Triple Talaq Is Ultra Vires To The Indian Constitution

The practice of triple Talaq is grossly injurious to the human rights of the Muslim women. This
form of Talaq is infested with the malady of inequality which goes against equality which is
enshrined in Article 14 of the Indian Constitution. Talaq-ul-biddat distorts the fundamental right
against any form of discrimination enshrined in Article 15 of the Indian Constitution. Lastly,
turning aside, from normal format of divorce, Talaq-ul-biddat mars the essence of Article 21, the
right to life and personal liberty.

Article 13 is a key provision in the protection of fundamental rights, as it makes all laws, before
the existence of the constitution as well as new laws formulated by the Legislature, void insofar
as they violate any of the Fundamental rights guaranteed under Part III of the Constitution . This
provision makes the Courts the guardian and protectors of the Fundamental rights. Article 13 has
only one ground of unconstitutionality, namely the violation of any provision in Part III of the
Constitution. It however requires the particular law to fall within the definition given in article
13(3) (a). Article 13 states that law “includes any ordinance, order by-law, rule, regulation,
notification, custom or usage having in the territory of India the force of law” It further states
that ‘law in force’ “includes laws passed made by a legislature or other competent authority in
the territory of India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such laws or any part therefore may not be then in operation either at all
or in particular area” In State of Bombay v. Narasu Appa Mali , The Court held that Personal
Laws did not come within the ambit of law in Article 13(3)(a). This was later affirmed in Madhu
Kishwar and Ors. V. State of Bihar and Krishna Singh v. Mathura Ahir , where the court
upheld the same and further urged them to enforce the law from recognized and authoritative
sources of Hindu Law. Later in Maharishi Avdhesh v. Union of India, a challenge on the
Muslim Women (Protection of Women on Divorce) Act, 1986 had been denied stating that even
codified personal law cannot be tested on the touchstone of fundamental rights. In Ahmedabad
Women’s Action Group v. Union of India as well, the court held that it cannot interfere with
personal laws as they are a matter of state policy
Courts in India have generally steered clear of adjudicating on matters relating to Personal Laws.
However, the reasoning given in the above mentioned cases have been fallacious. Justice Chagla
and Gajendragadkar J. in the Narasu appa Malli case laid emphasis on omission of the term
personal law in Art. 13 and restricted the interpretation of the phrase 'custom or usage' in Art. 13.
In the case of A.S Parveen Aaktar v. Union of India, it was submitted -“that the assumptions
and beliefs upon which such a form of divorce is recognised are factually false, scientifically
untenable and contrary to the spirit and provisions of the Constitution . Apart from fundamental
rights, various directives of the state policy such as

Article 44 which guarantees continuous endeavors by the state to achieve a uniform civil code;

Article 38 which promises that the state shall strive to secure social order and promote welfare

of people;

Article 39 which points to the principle of policy of the state to make progressive laws Article
39-A which guarantees equal justice to all are grossly led down as Indian Muslim women fell
prey to such unjust practices They hardly have any access to justice as law hides behind the
elevated wall of Article 25 and 26 which hardly considers women grievances subjugated to their
misinterpreted personal laws.

As regards practice of religion, the courts have ruled in many cases that only those practices, of
whichever religion, as are its essential parts must be legally protected. In other words, protection
of non-essential religious practices would be the discretion of the state and cannot be claimed to
be protected as fundamental rights. Destitution, vagrancy, trafficking of neglected women does
not vary with region, religion, caste or creed. The response to the basic right to life based on
religion, with which the issue of maintenance of woman is linked, is unconstitutional and
unethical.

Falling Back To The Progressive Islamic Jurisprudence Of Other Islamic Countries

An article in Indian Express dated December 08, 2004 stated that National Commission for Women
is of the view that Muslim personal law in India is particularly backwards and creating awareness
about other Islamic societies would help fight the propaganda that the Shariat laws could not be
interpreted or changed.

In Pakistan, "triple Talaq," or instantaneous verbal divorce, has been illegal since 1961. In countries
like Indonesia, Malaysia and Brunei, even a second marriage is banned. However, in countries like

Iran, Iraq, Syria and Bangladesh, second marriages are discouraged through a strict legal and
administrative mechanism. [In India, polygamy is still legal under Muslim personal law. -AS]

Turkey and Iran, both husband and wife enjoy equal rights for seeking divorce. Turkey,
Indonesia, Iraq, Iran and Bangladesh have legally banned one-sided divorces, which gave men
arbitrary powers to break marriages, while countries like Egypt, Sudan, Jordan, Tunisia, Morocco,
Pakistan and Bangladesh had banned the practice of triple Talaq long ago.
CURRENT CONERNS

The National Commission of Women (NCW) has held that triple talaq was a “highly misused”
custom and Government should scrap it to protect the rights of Muslim women. NCW clearly
mentioned that the traditional custom of triple talaq should be banned in an effort to protect the
rights of Muslim women and it cannot be linked to the Uniform Civil Code. According to the
commission, a Muslim woman feels disempowered because of the practice of

Triple talaq.

Why triple talaq should be abolished?

The practice of ‘triple talaq’ has enabled husbands to divorce their wives arbitrarily, devoid of
any substantiation. It impact adversely on the right of women to a life of dignity. The ‘triple
talaq’ has been abolished in 21 Islamic theocratic countries including Pakistan. It is also against
constitutional principles such as gender equality, secularism, international laws etc.

What is Government’s position?

Recently Central Government in affidavit submitted to Supreme Court held that the practice of
Triple talaq is against the principles of gender justice, gender equality and dignity enshrined in
the Constitution. This pernicious practice is not integral to the right to freedom of religion. Triple
talaq is not an essential religious practice in Islam and violates right to equality, non-
discrimination on the grounds of sex and the right to live with dignity to women in par with men
guaranteed in the Constitution.

All India Muslim Personal Law Board Intervention in triple Talaq

The Supreme Court bench comprising the Chief Justice of India, Justice TS Thakur and Justice
UU Lalit, will hear as item 8 the case of suo motu writ petition, In Re; Muslim Women’s Quest
for Equality. Along with this, the bench will also hear Shayara Bano vs Union of India and
others. Bano is represented by well-known advocate, Balaji Srinivasan, pro-bono. Bano seeks
mandamus declaring the practices of Talaq-E-Bidat, Nikah-Halala and polygamy under Muslim
Personal laws as illegal, unconstitutional for being violative of Articles 14, 15, 21 and 25 of the
Constitution, and to pass such further orders to provide a life of dignity unmarred by any
discrimination to Muslim women. The suo motu writ petition has been registered by the Supreme
Court for considering the rights of Muslim women in issues concerning marriage, divorce and
maintenance and whether the current practices under Muslim Personal Law regarding marriage,
divorce and maintenance are violative of Part III of the Constitution. The All India Muslim
Personal Law Board has filed an Interlocutory Application in the case. The AIMPLB has
submitted that the issue of Muslim Personal Law is cultural issue, and it is inextricably
interwoven with Islam. It has argued that it is the issue of freedom of conscience, guaranteed
under Article 25 and 26 read with Article 29 of the Constitution. The AIMPLB has contended
that the questions being examined by the Supreme Court in the present case has already been
dealt with by the Court in Ahmedabad Women Action Group v Union of India. In this case,
the Supreme Court held that these were matters wholly involving issues of state policies, with
which the Court has no concern, and therefore, to be dealt with by the legislature. The AIMPLB
has also submitted that the Part III of the Constitution does not touch upon the personal laws of
the parties, and therefore, the Supreme Court cannot examine the question of constitutional
validity of the practices of marriage, divorce and maintenance in Muslim personal law. The
AIMPLB has argued that the framers of the Constitution were fully conscious of the difficulties
in enforcing a Uniform Civil Code and thus they deliberately refrained from interfering with the
provisions of the personal laws and laid down only a directive principle. The AIMPLB has also
cautioned the court that if lays down special rules for Muslim women in marriage, divorce and
maintenance, it would amount to judicial legislation. The AIMPLB has further argued that the
rights of Muslim Women are already protected by virtue of Muslim Women (Protection of
Rights on Divorce) Act, 1986, whose constitutional validity has been upheld by the Supreme
Court. Prescribing other parameters to govern the rights of Muslim women, would amount to
judicial legislation, which is

not permissible, the AIMPLB has said.

Considering the facts that triple talaq is un-Islamic, negated by highly regarded Islamic scholars,
that such a practice has been invalidated in many Muslim-majority nations and that it blatantly
violates provisions of Constitution of India, the practice of triple talaq must be pronounced as
unconstitutional. The rights of more than 170 million Muslim women of India are at stake. Triple
talaq is an inhuman practice that violates rights and dignity of women. The Constitution of India
under Article 25 confers Right to freedom of conscience and free profession, practice and
propagation of religion. The protection under Articles 25 and 26 extend guarantee to rituals,
observances, ceremonies, modes of worship etc. which are integral to the religion. But for such
practices to be considered as a part of the religion, it is necessary that such practices be regarded
by the said religion as essential and integral parts suffice it to say, “Triple talaq” at the same
instance is not an essential practice of Islam and hence must be done away with as much haste as
possible.

Thus we come at a point where we realize that gross injustice has been done to a section of humanity
which has more often than not paid obedience to the religious texts to which she was bound, had
always remained silent even when world has thrown her to the mercy of destiny, with no livelihood
choices, effective maintenance schemes and continuously pestered her to be an acquired personality
under the unquestioning regime of men. We have moved away from the clutches of orthodoxy and
fanaticism, this era is an era of empowerment, literacy and freedom, then why not give women her
due. Triple Talaq is a customary practice which has evolved through shallow interpretation of a great
text like Quran. Triple Talaq is a weapon of victimisation of women in the hands of Muslim men.
Triple Talaq destroys a woman emotionally, socially and economically. Despite the fact, Islam is the
first religion that recognised and legitimised the indivisibility of individuality of a woman. Triple
Talaq symbolises the subordination, subjugation and suppression of human rights of women, which
have already been made available to them by the Holy Quran. Moreover, Islam treated rights of
women as human rights. Triple Talaq is a recognised form of divorce in the contemporary legal
regime in India or Muslim Law as administered in many Muslim countries. Time now is to move
forward in our endeavors to form a “real welfare state” where the 1 st three words of our Constitution

“We the People” finally have some real meaning. The hegemony of personal laws should not
supersede the promises guaranteed by our Constitution.
In promotion of Uniform Civil Code, one of the cherished dreams of B.R.Ambedkar, he said:-“I
personally do not understand why religion should be given this vast expansive jurisdiction so as to
cover the whole of the life and to cover the legislature from encroaching upon them. After all what
are we having this Liberty for? We are having this liberty in order to reform our social system. We
are having this Liberty to bring about a cessation in the inequalities, discriminations and other
things which conflict with our fundamental rights.”