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Shayara Bano v. Union of India & Others

Shayara Bano v. Union of India & Others

By T Tanya

Triple Talaq: Short Words, Massive Impact

Introduction

 A strong union of the married couple must be present for a successful family life. Islam favors subsistence of marriage and the breach of marriage must be avoided. However in some cases the marriage can be dissolved by various modes. Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. Talaq is also a mode of divorce. This article aims to study what exactly is triple talaq, the controversies surrounding the said concept and finally the ban of the said practice.

What is Talaq?

·      Talaaq in its literal sense means "setting free", "letting loose", or taking off any "ties or restraint". In Muslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate words.

·      Triple Talaq: Triple talaq is a mode of dissolution of marriage where a Muslim man can legally divorce his wife by pronouncing “talaq “three times. The pronouncement of the word could either be oral or written, or even, delivered by electronic means such as telephone, SMS, email or social media.

·      Not only that the man need not state his reasons for the cause of divorce. The word pronounced makes the divorce effective irrespective of the wife’s presence. After the period of iddat, during which it was ascertained whether the wife is pregnant, the divorce became irrevocable.

·      In a nutshell in order to divorce his wife, the husband must say the phrase "I divorce you" (in Arabic, talaq) to his wife, three times over a period of three consecutive months. The idea behind prescribing the course of the three month period is to check decisions based on impulse and give time for reconciliation.

In traditional Islamic jurisprudence, triple talaq is looked down, but is still considered to be legally valid, form of divorce. Changing social conditions around the world have led to increasing dissatisfaction with traditional Islamic law of divorce since the early 20th century and various reforms have been undertaken in different countries.

 

VIEWS ON TRIPLE TALAQ

SUPPORT:

 

The practice of triple talaq is being supported by the All India Muslim Personal Law Board (AIMPLB), a non-governmental body that supervises the application of Muslim personal law.

The AIMPLB contends that State does not have the right to intervene in matters regarding their religion. The All India Muslim Personal Law Board (AIMPLB) defends the practice. AIMPLB has claimed that Muslims have a lower rate of divorce compared to other religious communities, countering the argument that Muslims have the highest number of divorce in the country due to the practice of triple talaq. It also claimed that it had received forms from 35 million Muslim women across the country, supporting shariat and triple talaq.

 

OPPOSITION/CONTROVERSIES ON TRIPLE TALAQ

The said practice was opposed by women generally. The issue has garnered media when some of the women filed public interest litigation in the Supreme Court against the practice, terming it "regressive" The petitioners contended that Section 2 of the Muslim Personal Law (Shariat) Application Act is against Article 14 of the Constitution.

The case was called Shayara Bano v. Union of India & Others.[1] 

 

JUDICIAL INTERVENTION-Shayara Bano v. Union of India & Others

Date of the Ruling:  Aug 22 2017

Jurisdiction: Supreme Court of India

Bench: Chief Justice JS Khehar, a Sikh, Justices Kurian Joseph a Christian, RF Nariman a Parsi, UU Lalit a Hindu and Abdul Nazeer, a Muslim. 

 

Issue raised before the Court:

1.     Whether the practice of triple talaq valid?

2.     Whether triple talaq is being protected under Article 25(1) which guarantees the right to “profess, practice and propagate religion”?

3.     Whether or not Triple talaq is an essential feature of Islamic belief and practice? 

Judgment

The Supreme Court laid down this judgment on August 22, 2017 in 3:2 majority holding the practice of Triple Talaaq unconstitutional. The concurring opinion was that that Triple Talaq is not an essential religious practice while the dissenting opinion found this practice to be an essential religious practice.

Since the majority opinion was against the practice the court held that that triple talaq is not protected by the exception laid down in Article 25 and is violative of Article 14. The practice of triple talaq was banned.

Rationale adopted by the Court:

The Court justified its view by stating that Triple Talaq is against the basic tenets of Quran and whatever is against Quran is contrary to Shariat School.

The majority bench relied on its earlier decision Shamim Ara[2] which held that this practice of Triple Talaq is against theology as well as law. Mere usage of practice by large number of people does not uphold the practice and the said practice is unconstitutional and set aside.

Although the said practice has no relevance to the first three exceptions in Article 25 but the said practice is directly violative of Article 14. The said practice is in violation of the Fundamental Right of equality since it is against the rights of women as they have no say in the declaration of divorce unlike in other religions.

 

The majority judgment held triple Talaq to be unconstitutional under Article 14 read with Article 13(1). In this regard, the Court held that the practice had been sanctioned as a matter of personal law by the Muslim Personal Law (Shariat) Application Act, 1937. The Court clarified that “an action that is arbitrary, must necessarily involve negation of equality” and as triple talaq provides that “the marital tie can be broken capriciously without any attempt at reconciliation so as to save it”, this arbitrariness violates Article 14. The Court concluded that the 1937 Act is void to the extent that it recognizes and enforces Triple Talaq, on the basis that as per Article 13(1) all laws in force immediately before the commencement of the present Constitution (which includes the 1937 Act) shall be void in so far as they are inconsistent with the fundamental rights set out in the Constitution.

Legislations relating to ban of Triple Talaq:

Ø  The Muslim Women (Protection of Rights on Marriage) Bill, 2017

The Government formulated a bill and introduced it in the Parliament after 100 cases of instant triple talaq in the country since the Supreme Court judgment in August 2017.On 28 December 2017, the Lok Sabha passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017.The bill made instant triple talaq (talaq-e-biddah) in any form — spoken, in writing or by electronic means such as email, SMS and WhatsApp illegal and void, with up to three years in jail for the husband.

Ø  The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018

 Since the practice of instant triple talaq was continuing despite the Supreme Court striking it, the government issued an ordinance to make the practice illegal and void. 

The provisions of the ordinance are as follows:

·       Instant triple talaq remains cognizable with a maximum of three years imprisonment and a fine.

·       Only complaint with the police by the wife or her blood relative will be recognized.

·       The offence is non-bailable i.e. only a Magistrate and not the police can grant bail. Bail can be granted only after hearing the wife.

·       Custody of the minor children from the marriage will go to mother.

·       Maintenance allowance to the wife is decided by the magistrate. The ordinance was cleared by the President on 19th September 2018. 

Ø  The Muslim Women (Protection of Rights on Marriage) Bill, 2018 was passed by Lok Sabha but remained stuck in the Rajya Sabha due to the opposition's demand to send it to a select committee

Ø  As the triple talaq ordinance of 2018 was to expire on 22nd January 2019 and also because the triple talaq bill of 2018 could not be passed in the parliament session, the government has repromulgated the ordinance The Muslim Women(Protection of Rights on Marriage) Ordinance, 2019 on 10th January 2019. On 12th January 2019, the president of the India Ram Nath Kovind approved the ordinance of 2019.

Conclusion:

Generally in a country where there is codified law and where the case is such that the personal laws are inconsistent with the supreme law of the land, the latter shall prevail not the religious laws. Gender equality is the part and parcel of the Constitution and one cannot shield their practices in the name of religion. After so many abortive attempts finally, a petition filed by Shayara Bano, Ishrat Jahan, Aafreen Rehman, and Gulshan Parveen was successful in bringing justice to many unheard voices of India. The judgment given in Shayara Bano case was a turning point as the Court not only banned the practice but also penalized the offenders. Just because the practice has been followed for a long period of time, the practice cannot be made valid.

The majority decision restored the faith on the judicial system. The courts finally brought justice to those women who have been a victim of Triple Talaq. No husband can now abandon his wife by ending marital tie on his whims and fancies. However, the opinion of minority is not satisfactory. Overall, this judgment was indeed a step in the right direction. But it was only one step and more steps need to follow.

Inspite of the judgment or the various bills and ordinances that have been passed regarding triple talaq the practice is still being continued in some places. For instance recently a man divorced his wife by saying talaq over the phone. In order to make the ban more effective, the government must educate the people in rural years about the judgment and the consequences of following the practice.


[1] (2017) 9 SCC 1

[2] Shamim Ara v. State of U.P. (2002) 7 S.C.C. 518

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