Triple Talaq is a form of divorce practiced in India, whereby a Muslim man can legally divorce his wife by pronouncing talaq (the Arabic word for divorce) three times. The pronouncement can be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or social media. The man need not cite any cause for the divorce and the wife need not be present at the time of pronouncement.
The custom of Triple Talaq followed by Muslims all over the world forces one to think if on humanitarian basis are the women really being treated equally?
The Muslim family affairs in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937 (Muslim Personal Law), one of the first acts to be passed after the Government of India Act, 1935 became operational. It replaced the so-called “Anglo-Mohammedan Law” previously operating for Muslims and became binding on all of India’s Muslims. Unlike the Indian constitution which provides a specific procedure for divorce, Muslims followed the Shariat. Marriages are personal affairs for the Muslim and until and unless the couple does want to get it registered, there is no compulsion for the Muslim married couples to get a marriage registered in the registrar’s office. Just as there is no rule for registering the marriage there is no rule to follow the constitutional way for getting a divorce also in Muslims.
According to the Shariat, the man need not cite any cause for the divorce and the wife need not be present at the time of pronouncement. A Muslim man can divorce his wife just by citing the word talaq three times, provided the pronouncement was made in front of Muslim witnesses and later confirmed by a Sharia court. After a period of iddat, during which it is ascertained whether the wife is pregnant with a child, the divorce becomes irrevocable. In the recommended practice, a waiting period is required before each pronouncement of talaq, during which reconciliation is attempted. However, it has become common to make all three pronouncements in one sitting. A divorced woman may not remarry her divorced husband unless she first marries another man, a practice called Nikah Halala.
The issue of triple talaq has been a major topic of discussion from a long time and the possibility of banning this practice was strongly debated upon. Many Muslim women who suffered the repercussions of this custom had filed PIL’s in courts seeking justice for themselves and fighting for the right of equality.
The practice of triple talaq first came into notice in 1986 in the case popularly known as the Shah Bano case. Shah Bano, a 62-year-old Muslim mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. She filed a criminal suit in the Supreme Court of India, in which she won the right to alimony from her husband. However, she was subsequently denied the alimony when the Indian Parliament reversed the judgment under pressure from Islamic orthodoxy.
In 1932, Shah Bano, a Muslim woman, was married to Mohammed Ahmad Khan, an affluent and well-known advocate in Indore, Madhya Pradesh, and had five children from the marriage. After 14 years, Khan took a younger woman as the second wife and after years of living with both wives, he threw Shah Bano, who was then aged 62 years, and her five children out. In April 1978, when Khan stopped giving her the ₹200 per month he had apparently promised, claiming that she had no means to support herself and her children, she filed a petition at a local court in Indore, against her husband under section 125 of the Code of Criminal Procedure, asking him for a maintenance amount of ₹500 for herself and her children. On November 1978 her husband gave an irrevocable talaq (divorce) to her which was his prerogative under Islamic law and took up the defence that hence Bano had ceased to be his wife and therefore he was under no obligation to provide maintenance for her as except prescribed under the Islamic law which was in total ₹5,400. On 1 July 1980, on a revisional application of Bano, the High Court of Madhya Pradesh enhanced the amount of maintenance to ₹179.20 per month. Khan then filed a petition to appeal before the Supreme Court claiming that Shah Bano is not his responsibility anymore because Mr. Khan had a second marriage which is also permitted under Islamic Law.
This matter had raised the question that time that are the Muslim women being treated equally? Bano was denied her right to alimony just because the Muslim law did not permit for it. She got divorced by her husband without any legal formalities practiced just by practicing triple talaq. Was justice done to Bano? All this had become a matter of debate not just among the Muslim community but all over India. It was not just one case of Bano but many Muslim women have faced the ill effects of triple talaq.
Recently the matter again became a matter of discussion when a triple talaq victim, Shayara Bano petitioned the Supreme Court, seeking a ban on the divorce form, polygamy and Nikah halala. A resident of Kashipur in Udham Singh Nagar district of Uttarakhand, she got married to Allahabad-based property dealer, Rizwan Ahmed, in 2002. Bano had to take a legal course to get triple talaq or talaq-e- bidat declared illegal after her husband Rizwan Ahmed posted a ‘talaqnama’ to her. She had said that she was forcibly given pills by her husband, which severely affected her health.
Another such case was that of a woman named Ishrat Jahan who challenged the Constitutional validity of triple talaq to end a marriage. She was forced to knock the doors of the court when suddenly one day her Dubai-based husband telephoned her and uttered talaq thrice. Ishrat the mother of 4 children had no option but seek justice against the practice of triple talaq (talaq-e-bidat) under the Muslim Personal Law. In her petition, Ishrat Jahan sought a declaration from the apex court that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 was unconstitutional, as it violated fundamental rights guaranteed under Articles 14 (equality), 15 (non-discrimination), 21 (life) and 25 (religion) of the Constitution.
Farah Faiz was another petitioner against the practice of triple talaq. Farah her self a Supreme Court lawyer contended in her plea that “talaq-e-bidat (triple talaq) is not a form of divorce recognised in the Quran. She unveiled the reality of AIMPLB (All India Muslim Personal Law Board) said that the organisation is not even a legal body, it is just an NGO who is forcibly issuing laws for Muslims. She said “Muslim women definitely are secure under Sharia law but what the Personal Law Board is doing (is) giving significance to triple talaq and nikah halala which are not written in the Quran. The AIMPLB is not even a legal entity, it is just an NGO. They have a misleading name which has for years misguided both the Muslims and the Indian government.”
Gulshan Parveen of Rampur in UP another victim filed the case against the practice. She was married in April 2013. Her husband had sent the talaqnama on a Rs 10 stamp paper when she was with her parents, however, when she refused to accept it following which her husband took her to Rampur family court asking for dissolution of marriage based on the talaqnama.
A resident of Jaipur 25-year-old Afreen Rehman also filed a petition with the apex court after receiving a divorce letter through speed post seeking intervention into the matter. She was married in August 2014 and on January 27, 2016, Afreen received the talaqnaama via a speed post. After filing the petition seeking justice she claimed that her in-laws had mentally harassed her, demanding for dowry. “The Muslim Personal Law Board needs to move with the times. I am not opposing them; I just want them to change,” she pleaded.
Taking into account all these cases and several other petitions, the Supreme Court bench asked the Chief Justice of India on Oct 16, 2015, to set up a bench to examine if Muslim women face gender discrimination in cases of divorce while dealing with a case of Hindu succession.
On February 5, 2016, the SC asked attorney general Mukul Rohatgi to assist it on the pleas challenging the constitutional validity of ‘triple talaq, Nikah halala and polygamy.
Then on March 28, 2016, the SC asked the Centre to file a copy of the report of a high-level panel on ‘women and the law: An assessment of family laws with the focus on laws relating to marriage, divorce, custody, inheritance and succession’.
On June 29, 2016, The Supreme Court stated that triple talaq among the Muslims will be tested on “touchstone of constitutional framework”.
For the first in the history of Indian Constitution, the Centre opposed the practice of triple talaq, nikah halala and polygamy in the Supreme Court on 7 Oct 2016.
As the case lingered on and the SC getting the pressure to reach a verdict soon on 16 Feb 2016, it announced that a bench of five judges will be set up to hear and reach a decision regarding the validity of these practices.
On March 27, 2017, All India Muslim Personal Law Board told the SC that these pleas were not maintainable as the issues fall outside judiciary’s realm. Following which the court announced that the case is very sensitive and involve sentiments hence a constitution bench would start hearing from May 11, 2016.
Following the announcement of the Supreme Court the case received many opinions across the nation. BSP chief Mayawati said that SC should decide the issue of triple talaq as per the Constitution to ensure justice for Muslim women. PM Narendra Modi said justice should be done to Muslim women. AIMPLB said that the board has decided to issue a code of conduct and warned that those who give talaq (divorce) without Sharia (Islamic law) reasons will face social boycott. Uttar Pradesh chief minister Yogi Adityanath said that the politicians maintaining silence on the issue of triple talaq were equally responsible as those practicing it as he linked the Muslim practice of divorce to the disrobing of Draupadi in the Mahabharata. Attorney general Mukul Rohatgi said the practice of triple talaq should not be allowed as women have as much right as men and cannot be treated on a lower pedestal.
Further, as the case progressed the bench of five judges on May 11, 2016, said that it would determine if the Muslim practice of triple talaq is in line with the Constitution and fundamental to Islam. “We will only look at triple talaq and whether it is constitutional and not go into issues such as polygamy.” OnMay 15 2017 Attorney General Mukul Rohatgi told the Supreme Court that the Centre will bring in a new law to regulate and marriage divorce among Muslims if the practice of triple talaq is declared unconstitutional. The SC also refused to hear all the three cases of Polygamy, Nikah and Halala at once, saying it will focus on one matter at a time. While the AIMPLB argued that triple talaq is a 1,400-year-old practice, and constitutional morality and equity cannot arise when a matter of faith is concerned.
The debate further continued when SC asked the AIMPLB whether a woman can be given an option of saying ‘no’ to triple talaq at the time of execution of nikahnama (Islamic marriage contract). A five-judge Constitution bench headed by Chief Justice JS Khehar also said if all Qazis can be asked to include this condition at the time of marriage.
The final verdict on the case was announced on 22 Aug 2017 when, The Supreme Court by a majority verdict set aside the practice of divorce through triple talaq among Muslims, saying the practice was void, illegal and unconstitutional. The Supreme Court banned the evil custom of triple talaq for six months and has asked the government to form a new constitution to permanently abduct this custom.
The decision is being appreciated by everyone across the nation and especially the Muslim women, who now can enjoy equality. Prime Minister Narendra Modi also hailed the decision and tweeted “Judgement of the Hon’ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment.”