Triple Talaq Detailed Discussion
Post on 15,September 2019   11:57 PM
By - Miss. Vibha Yadav
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‘Triple Talaq’ or ‘Oral talaq’ is a procedure of divorce mentioned under the Sharia Law which is a body of the Islamic law. Under this, a husband can divorce his wife by pronouncing ‘Talaq’ thrice. There are three forms of talaq (divorce) in Islam: Ahsan, Hasan, and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable but talaq-e-Biddat is irrevocable.

Is come under personal law or not?
In the practice of talaq-e-biddat, when a man pronounces talaq thrice in a sitting, or through phone, or writes in a talaq-nama or a text message, the divorce is considered immediate and irrevocable, even if the man later wishes to re-conciliate. However, Women cannot pronounce triple talaq and are required to move a court for getting the divorce under the Sharia Act, 1937. Thus, since Shariat Act had recognised triple talaq, it was no longer a personal law but a statutory law which comes under the ambit of Article 13(1) of the Constitution.

Background:
  • In the Shah Bano case in 1985, the SC granted Shah Bano, a 62-year old woman the right to alimony(subsistence allowance)  from her husband. But in 1986, the government passed the Muslim Women (Protection of Rights on Divorce) Act which diluted the positive impact created by the Shah Bano case.
  • In 2001, in the Danial Latifi & Anr versus Union of India case, the SC upheld the validity of the Shah Bano judgement.
  • In August 2017, a five-judge bench of the SC declared the triple talaq as unconstitutional in a majority 3:2 judgement in the petition of Shayara Bano.

The Muslim Women (Protection of Rights on Marriage) Bill, 2019
The Bill makes all declaration of talaq, including in written or electronic form, to be void and illegal.
  • The Bill makes declaration of talaq a cognizable offence(arrest without warrant), attracting up to three years’ imprisonment with a fine. This event of triple talaq is considered a cognizable offence only when the married women herself or person related by blood provide information regarding offense.
  • There is also a provision of bail only after hearing the woman and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
  • The offence may be compounded (two sides agree to stop legal proceedings, and settle the dispute) by the Magistrate upon the request of the woman. But for this purpose all terms and conditions determined by magistrate only.
  • A Muslim woman against whom talaq has been declared is entitled to seek custody of her minor children and seek subsistence allowance from her husband for herself and for her dependent children.

Arguments in favour of the Act
  • Supreme Court judgment of 2017 had recognised the discriminatory nature of triple talaq and also need of strong law to ensure gender justice for Muslim women.
  • The legislation brings India at par with other Muslim majority states including Pakistan and Bangladesh and this type of arbitrary practice is very disappointing in the country which has strong foundation of secularism, democracy, and equality. And also Triple talaq has never been sanctioned even in Islamic scriptures.
Arguments against the Act
  • This act is criminalizing the civil wrong for first time in Indian history.
  • The Act violates constitutional rights as it stipulates three-year jail term for guilty Muslim men while non-Muslim men get only one year of jail term for a similar offence.
  • Issues remain as no husband on his return from jail is likely to retain the wife on whose complaint he had gone to prison.


Way forward The government should ask the Law Commission to review all personal/civil laws to address the gender inequities that persist in civil and personal laws across the board as India needs a non-sectarian, gender-neutral law that addresses desertion of spouses. The passage of the Muslim Women (Protection of Rights on Marriage) Act, 2019 criminalising triple talaq is a moment of great importance for gender equality and justice and for India’s legislative history.

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