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Triple Talaq: A historical and legal analysis: The said and the unsaid

Laws are the rules and regulations strive for the conflict-free living and development of the human race within a society relevant in many forms viz. customs and norms observed in the community, religious laws followed by faithful followers, and statutes made by the sovereigns. The vast diversity of laws prevalent in different societies, religions, and countries makes it very likely that they conflict amongst themselves. The recent example is the triple talaq or talaq-ebiddat or talaq-e-bain criminalized by Muslim Women (Protection Of Rights On Marriage) Bill.

The contention between Muslim Personal Laws on triple talaq and the Constitution was pointed out in Shayara Bano and Others v. Union of India and Others, Writ Petition (C) No. 118 of 2016, where the practice of triple talaq was set aside by the constitutional bench with a majority of 3:2, which also directed the legislature to make a statute criminalizing it. Of the judges who voted against the practice, Justice Rohinton Nariman and Justice UU Lalit declared it unconstitutional while Justice Kurian Joseph relied on case precedents to reiterate that such practice was impermissible under the Islamic law.

The practice of triple-talaq does not have a reference in the holy Quran, and Prophet condemned this practice. After the death of Prophet; the Arabs conquered Egypt, Persia, Syria and other Middle East states; and they found women there more attractive than Arabian women. Women of the conquered states insisted that Arabian men should divorce their wives in a single sitting if they to have a relationship with them. The Arabian men heartily agreed to this because talaq in a single proceeding was revocable and inconsistent in Islam and thereby could retain their wives while having a relationship with other women as the talaq was void and thereby could be revoked anytime.

The second Caliph Umar upon seeing the gross abuse of religious fundamentals by such men to satiate their unjust ardour declared instant triple talaq irrevocable. Approbating the practice of triple talaq was a gubernatorial step taken to stop the iniquitous practices prevalent at the time. This practice was introduced as a social measure to protect the interests of the women, but the jurists of the Hanafi school of thought gave it a religious sanctity and projected it as an essential practice of Islam.

In the Shayara Bano case, it was argued that Talaq-e-Biddat is an essential practice as it has been in continuance by a major chunk of a prominent religion and hence, protected under Article 25 of the Indian constitution. The bench held that the essential practices under article 25 should be tested on the touchstone whether without such practice the existence of the religion is questioned and forms the basic principles of the religion. It does not come under the ambit of article 25 merely because it has been in practice for thousands of years or is widespread in a prominent section of the society.

Furthermore, it has been observed that instant talaq being an irrevocable form of divorce is criticized by Muhammad Prophet and not accepted in the Quran. Hence, it was articulated that triple talaq being bad in theology cannot be good in law and does not come under the ambit of article 25.

Right to live with human dignity and personal liberty is one of the indispensable human rights enshrined under Article 21 of the constitution, but triple talaq is in violation of it. Triple talaq gives a man arbitrarily unbridled power to divorce his better half leading to a state of disparity in the authority given and responsibility undertaken by the man. This whimsical power assists the man in making irrational and abrupt decisions, but the melancholy is that women have to suffer the repercussions of such arbitrariness.

Men tend to give divorce on trifling issues which could have been resolved using reconciliation and mutual talking, but triple talaq being an irrevocable form of separation does not leave any room for the resumption of marital rites. The fear of triple talaq is so embedded in the minds of Muslim women that it has snatched their liberty and forced them to live a life without dignity under the command of their husbands as robots.

Triple talaq is also used as a tool by men to show his power and exert supremacy on women. Nikah Halala is a rudimentary practice prevalent among Sunni Muslims preaching consummation of the marriage between a divorced woman and another man with the predetermined goal of divorce to remarry her former husband. They are forced to do Nikah Halala to retain their marriage, usually after triple talaq is given by husband on some petty issue, leaving scars in their memory and shredding
their dignity.

In India the Dissolution of Muslim Marriages Act, 1939 specifies the grounds of divorce upon which a Muslim woman can file a petition for divorce, on the contrary there, are no criteria specified or codified for men. The presence of triple talaq in the society transgress article 15(1) of the Indian constitution protecting women against discrimination based on gender. There are numerous ways in Islam for men to divorce his consort whereas women's right to separation has been delegated to her by her husband at the time of Nikah and can be temporary or permanent and can be further delegated to a third person on behalf of the bride. It gives the male, the sole and uninhibited sway over the relationship; giving rise to the inequality between the genders and repression of the class having fewer privileges, in the case at hand women.

In Shayara Bano's petition, it was pleaded that it is the duty of the court to intervene if an individual's fundamental right is being violated as contented in Kesavananda Bharti v. State of Kerala and the court should end the practice of triple talaq. Furthermore, article 15(3) arms the state to make special provisions, by law, such as Muslim Women (Protection of Rights on Marriage) Act, 2019 for protection and advancement of women's rights.

Testing the issue of triple talaq for manifest arbitrariness, it is clear that triple talaq does not have the mandate of the holy Quran and is an innovative and heretical form of Talaq. Fyzee's book on Hanafi School of law observes that even though it is permissible under law, it is a sin and brings the wrath of God. Muhammad Prophet reprimanded the man who gave divorce to his wife in a single sitting and made him accept her. He disgraces such form of annulments as it does not give room for reconciliation and is valid even without a reasonable cause and says its practice is playing with God's rule book. It portrays the arbitrary and whimsical power of the man exercised in sole authority deciding the fate of the woman. That being the exposition it is held in violation of article 14 in Indian Express Newspapers (Bombay) (p) Ltd. v. UOI, 1985 and affirmed in various other cases.

The denouncement of triple talaq fosters the fundamental duty to promote harmony and brotherhood by transgressing religious diversities and renouncing practices derogatory to women as incorporated under article 51A (e). The renouncement of such practices have normative and persuasive value in the interaction of law and society, and they tend to influence each other for idealistic functioning. It spreads a message in the society to stop various practices practiced in the name of religion derogatory to various classes.

After independence, the makers of the constitution recognized the personal laws and agreed to enforce them for regulating religious and family affairs. But at the same time, taking a cue from unifying secular impulse they declared the Uniform Civil Code as a directive principle of state policy under article 44 of the constitution.

However, being a DPSP, it is not enforceable by law and is upon the government to implement it. The denouncement of triple talaq is a step further in implementing the Uniform Civil Code (UCC) in a diverse country having different religions, cultures, traditions, and languages. It is a statement of the current government and portrays the ambitious goal of implementing UCC in the entire country, like Goa. It represents the idea of one law governing all the personal laws in India to foster unity, brotherhood, and above all equality before law while deciding religious issues in different religions, but having the same facts.

The view of triple talaq is in ultra vires to the basic idea of the preamble of our constitution, which gives us an introduction and fundamental morals to our constitution. The preamble preaches to ensure all the citizens of India social justice; liberty of thought, expression, belief, faith and worship; equality of status; and fraternity assuring the dignity of the individual. The practice of triple talaq jeopardizes the above fundamentals by denying women justice in the society; liberty to think, express, and put forth her views; and shredding her dignity by humiliating her in the society.

The practice of triple talaq as discussed above is in opposition to multiple articles and provisions of the constitution, fundamentals of humanity, and norms of the society. It defies the basic morals of human life and abases the position of women in society. It transgresses the preamble and numerous significant articles [14, 15(1), 21, 25, 14, 44, 51A (e)] of the constitution, the supreme law enforcing document of the country; and is rightly declared void by the Supreme Court, the top adjudicating court of the country; and criminalized by the parliament, the sovereign lawmaking body of the country.  

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