Triple-Talaq theory:
There has just been a storm in the fight for equality. The storm of getting
divorced without even knowing the grounds—Triple talaq—for the divorce.
Islam views marriage, or nikkah, as a secular relationship rather than a religious
institution, hence talaq, or divorce, was something that was beyond the purview
of people since marriage is a contract that may be broken.
An Islamic man can dissolve his marriage by severing all links to his wife, a
process known as talaq, which is the word for divorce in the language of Islam.
According to Islamic law, a man can end his marriage by saying the word
“Talaq” three times in a row. Triple Talaq refers to this freedom from the
marriage partnership. Islamic Law recognizes three distinct types of talaq for
both men and women. Hasan, Ahsan, and Talaq-e-Biddat are available. While
Talaq-e-biddat is irrevocable, the first two are.
The term Triple Talaq, commonly referred to as Talaq-e-biddat, refers to a
quick divorce. Triple talaq is a 1400-year-old Sunni Muslim custom. Muslims
who follow the Hanafi School of Islamic law were the main perpetrators of this
rapid divorce in Muslim communities. The Muslim Personal Law Act of 1937
permitted Muslim men to have a particular privilege over their wives through
the Triple Talaq procedure. It gives a man the freedom to irrationally end his
marriage.
Women were not permitted to remarry their divorced husbands under triple
talaq. She was required to have Nikah Halala, or another man’s marriage, first.
She retained custody of the kids up until the point at which she got remarried.
Beyond this, the father will be granted custody of the kids.
Why was it necessary to outlaw triple talaq?
Islam’s law system, known as Triple Talaq, enables husbands to formally
dissolve their marriages by pronouncing talaq three times. Divorce has been
finalized. The Quran specifies that there should be a particular amount of time
between the three stages of talaq, however, this rule is gravely misapplied, and
some husbands instantly divorce their wives.
Some males now use electronic means, such as phones and SMS,
to give talaq. In this style of divorce, the wife is not permitted to inquire into
the rationale or intent behind the talaq, nor
is she permitted to demand an explanation of any kind. It was therefore regarded
as being against justice and equality.
This led to large protests against the restriction on triple talaq by Muslim
women and women’s organizations.
Rights to equality, non-discrimination, and the ability to live in dignity are
among the essential freedoms that are violated by triple talaq. The worry of their
husbands unilaterally divorcing them is something that women have to deal
with. Polygamy, mental instability, and threats of immediate divorce are all
promoted by this wicked culture. Men’s domination over women has been
interpreted as the cause.
As a result, it is in opposition to justice, human rights,
empowerment of women, gender equality, and any other related concepts.
Muslims will threaten their spouses with triple talaq in trivial matters. Women
and children suffer greatly because of this.
We are the country that boldly claims to be the world’s largest democracy and to
guarantee the equality of men and women while still identifying as a secular
state. Underneath all these charming assertions, however, are vile,
discriminatory regulations that endanger the lives of countless people who, in
the majority of situations, are unable to support themselves.
Triple talaq is a patriarchal practice that should be outlawed because it is first unconstitutional,
second leaves divorced and dependent women in real poverty, and third is un-
quanric. Different courts in India have made differing rulings in these cases.
According to the ruling in the case of A.S. Parveen Akhtar v. Union of India,
triple talaq is forbidden by the Holy Quran and is seen as evil by Muslims. The
fact that the Quran does not refer to triple talaq may be one of the explanations
for why some Islamic nations forbid this practice. In the Quran, both the
husband and the woman have the option to seek a divorce, albeit husbands are
not even permitted to do so immediately.
In the Saleem Basha v. Mumtaz Begam case from 1998, it was determined
that the correct talaq law as prescribed by the holy Quran requires that talaq be
for a justifiable reason and be preceded by attempts at reconciliation by two
relations, one for each of the parties. This is a necessary condition precedent to
talaq.
In which case was triple talaq banned?
Shayara Bano v. Union of India 2017
Bench
Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali
Nariman, Justice Uday Lalit, and Justice K.M. Joseph constituted the Bench.
Brief Facts
A Muslim woman named Shayara Bano spent 15 years with her husband
Rizwan Ahmed. However, he unilaterally divorced her in 2016 using triple
talaq. She responded by submitting a writ case to the Supreme Court in which
she contested the constitutionality of polygamy, nikah halala, and the talaq-e-
biddat because they violate the fundamental rights of women (Article 14, 15,
21, 25). Bebak Collective and Bhartiya Muslim Mahila Andolan, two
organizations that advocate for women’s rights, supported her.
All India Muslim Personal Law, the opposition, made the case that divorce is a religious practice
under Article 25 of the Constitution and is therefore protected. Muslim law is
not codified; hence it is not susceptible to judicial examination.
Shayara Bano’s petition was approved by the court, and a five-judge
constitutional bench was established in 2017. On May 11, 2017, the first
hearing took place, and on August 22, 2017, the court issued its ruling.
Issues
● Is immediate triple talaq (talaq-e-biddat), a fundamental practice in
Muslim personal law, guaranteed under Article 25 of the Indian
Constitution?
● Whether triple talaq unlawful and violates the fundamental rights
protected by the Constitution?
Arguments between the parties
The parties to this lawsuit have debated numerous legal issues and Indian
Constitutional provisions. These include the rights to equality, religious liberty,
and to life and personal freedom.
Judgment of the court
The Supreme Court’s five-judge panel ruled in favor of Shayara Bano and
others. By a 3:2 margin, it ruled the Triple Talaq custom unlawful and
instructed the legislature to take action to end the mistreatment of women.
The court in this case emphasized that even though the Hanafi School primarily
practices triple talaq, it is immoral.
The Court stated in its ruling that many other Muslim nations have already done
away with this practice since it is not permitted by the Quran and was not
promoted nor practiced by the Prophet. According to the Court, the practice
violates Part III of the Constitution’s fundamental rights.
On July 30, 2019, the Rajya Sabha enacted the Triple Talaq Bill, also known as
the Muslim Women (Protection of Rights on Marriage) Ordinance, 2019. It
is one of the hot-button issues of today that is transforming. The Triple Talaq
Bill was introduced in the Lok Sabha on July 25, 2019, by Union Minister
Ravi Shankar Prasad. The government claims that the bill is a step in the
direction of gender equality and justice.
Also Read
Muslim nations that forbid triple talaq
- Pakistan
It was repealed in 1956 as a result of the recommendations of a 7-member panel
on marriage and family laws, which had designed the legislation for marriage
and divorce like Egypt’s requirement that the husband says Talaq three times in
succession. - Egypt
As interpreted by the Quran, it was the first nation to modify its divorce laws in
1929. - Tunisia
According to the 1956 Tunisian Code of Personal Status, the institution of
marriage is governed by the state and the legal system, and neither can let a
husband verbally divorce his wife without providing a valid reason. - Sri Lanka
Even though it does not have a majority of Muslims, some Islamic experts deem
Sri Lanka’s 1951 Marriage and Divorce (Muslim) Act to be the “most
appropriate legislation on divorce (Triple Talaq)”. This law stipulates that if a
husband wants to divorce his wife, he must notify the Qazi (Muslim Judge), as
well as the couple’s family, elders, and other prominent Muslims in the
neighborhood, to try and reach a reconciliation. - Bangladesh
Bangladesh has a fairly straightforward divorce procedure that only requires
three stages for a husband and wife who want to separate (where the Kabin has
been given the authority to grant the divorce):
● Give written notice;
● appear before the arbitration board (whether you appear or not is
immaterial); and,
● when 90 days have passed, obtain a registration certificate from a Nikah
Registrar who is registered (Kaji).
- Turkey
Only a marriage that has been officially registered with the Vital Statistics
Office in Turkey is eligible to start the Talaq process. The Talaq process will
then be completed in civil court. - Iraq
It was the first Arab nation to replace the government-run personal status court
with a Sharia court. - Indonesia
Only a court order can carry out a divorce. Only a court order can result in a
divorce; a husband and wife’s consent to divorce will not. It is governed by Law
No. 1 of 1974 Concerning Marriage (“Marriage Law”), which is further
governed by Government Regulation No. 9 of 1975 Concerning The
Implementation of Law No. 1 of 1974 Concerning Marriage (“Marriage
Regulation”).
Conclusion
An essential right of every person is to be respected. The fact that no Muslim
would ever again experience such prejudice and unfairness in their life is among
the most significant conclusions to be reached from the repeal of the Triple
Talaq bill. The cultures, religions, and practices in India are extremely diverse.
Each religious community in India has its own set of regulations governing the
family that is based on their respective religious texts. But there is a conflict
between social justice and the freedom to practice any religion. It is the proper
move to provide social justice for Muslim women for the parliament to approve
the Triple Talaq bill. In India, the campaign for women’s emancipation is being
positively impacted by the most recent rule. The court has advanced ideas of
personal law in society. The elimination of Triple Talaq will prevent future
prejudice and injustice against Muslim women. To end this practice, society should also speak out against this societal injustice. Because women’s - empowerment is necessary for the advancement of the country.
By Kanika Intern at Fastrack Legal Solutions
