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Triple Talaq or Talaq-e-Biddat

On 22 August 2017 the honourable supreme court of India in Shayara Bano vs Union of India, with the majority of 3:2 declared Triple Talaq or Talaq- e- bidat as unconstitutional.

Introduction
In Islam the marriage is considered as a contract between the husband and wife. Accordingly, this contract may be dissolved at any time. It is like partnership "at will". As partners are free to dissolve the partnership at any time, same way, either of the spouses is free to decide for dissolution of marriage. Therefore, the Muslim marriage can be dissolved either at the instance of husband, with or without intervention of court (called talaq), or at the instance of wife, with the consent of husband or with the intervention of court (called Khula or Judicial Divorce) or at the instance and desire of both spouses, without intervention of court.

The modes of divorce in Islam
Divorce (talaq) by husband:
  1. Talaq-ul-sunat
    1. Talaq-e-Ahsan:
      Talaq-e-Ahsan is a single pronouncement in the period of Tuhr, (that is, purity, when the woman is free from her menstrual courses), followed by abstinence from sexual intercourse during that period of purity as well as during the whole period of Iddat. The requirement of purity is not applicable when the wife has passed the age of menstruation, or the parties have been away from each other for a long time or when the marriage has not been consummated. The advantage of this form of talaq is that it can be revoked at any time before the completion of the period of Iddat and thus hasty and thoughtless divorces can be prevented. The period of Iddat is three months from the date of declaration or if the woman is pregnant until delivery. The revocation may be by express words or by conduct.
       
    2. Talaq-e-Hasan:
      This is also an approved form but less approved than Ahsan form. It consists of three successive pronouncements during three consecutive periods of purity (Tuhr). If the wife has crossed the age of menstruation, then the pronouncement of talaq may be made after the interval of 30 days between the successive pronouncements. When the third pronouncement is made, the talaq becomes final and irrevocable. In Talaq-e-Hasan when husband declares talaq third time the marriage stands dissolved irrevocably and the remarriage becomes impossible unless wife lawfully marries another husband and that other husband lawfully divorces her after the marriage has been actually consummated.
       
  2. Talaq-e-biddat:
    In this form three pronouncements are made in a single Tuhr, either in one sentence, or in three sentences, where pronouncement of the word ‘talaq’ thrice in one sitting by a man to his wife results in an instant and irrevocable divorce. The moment the pronouncement is made the marriage stands dissolved irrevocably.

Divorce by common consent
It has two forms:
  1. Khula (Redemption)
  2. Mubara’at (Mutual freeing)

A. Khula - The word Khula literally means to put off.
The essential conditions of Khula are:
  1. Common consent of Husband and Wife;
  2. some return or consideration from the wife to husband, if she desires to separate her husband through such divorce.
B. Mubara'a (Mutual Freeing) The word mubara denotes the act of freeing each other by mutual consent. The offer in a mubara'a divorce may proceed from the wife, or it may proceed from the husband but once it is accepted, the dissolution is complete and it operates as a single irrevocable divorce.

Among the Sunnis when the parties to marriage enter into mubara’a, all mutual rights and obligations come to an end. The Shia law is stringent. It requires that both the parties must find the marital relationship to be irksome in a bonafide manner.

The main distinction between a Khula and mubara’a is that in the former the aversion is on the side of the wife and she desires a separation but in the later the aversion is mutual and both sides desire separation.

Secondly, in a divorce by Khula some consideration must be given by the wife to the husband for her release from the marital tie. It is in effect an offer from the wife for her release on payment of a compensation. On the other hand, in a divorce by mubara’a no compensation is given by the wife to the husband for her release from the marital tie because both are happy at the prospect of getting rid of each other.

Supreme court judgement (Shayara Bano vs Union of India)
The Hon'ble Supreme Court through a Constitution bench comprising of 5 Judges from different religions - Justice Kurian Joseph, a catholic, Justice UU Lalit, a Hindu and Justice RF Nariman, a Parsi, Chief Justice Khehar, a Sikh and Justice Abdul Nazeer, a Muslim, declared Triple Talaq or Talaq-e Biddat as unconstitutional by a 3:2 majority. Justices Kurian, Lalit and Nariman delivered the majority judgement while Chief Justice Khehar and Justice Nazeer dissented with the majority.

Chief Justice Khehar And Justice Abdul Nazeer; (Minority Judgment)
The minority bench observed that:
we are satisfied, that this is a case which presents a situation where this Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to Talaq-e-Biddat.

We hope and expect that the contemplated legislation will also take into consideration advances in Muslim personal law - Shariat, as have been corrected by legislation the world over, even by theocratic Islamic States. When the British rulers in India provided succor to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind.

While dissenting the majority view the Minority bench observed as following;
The bench held that the practice of Triple talaq is arbitrary in nature by observing the following: "It is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the 393 fundamental right contained under Article 14 of the Constitution of India.

In our opinion, therefore, the 1937 Act (Muslim Personal Law Shariat Application Act), insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq Since we have declared Section 2 of the 1937 Act to be void.

The Muslim Women (protection of rights on marriage) Act, 2019.

The act makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.

Offence and penalty:
The act makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine.
(A cognizable offence is one for which a police officer may arrest an accused person without warrant)

The offence will be cognizable only if information relating to the offence is given by:
  1. the married woman (against whom talaq has been declared), or
  2. any person related to her by blood or marriage.

It provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman, and if the Magistrate is satisfied that there are reasonable grounds for granting bail.

The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared).The terms and conditions of the compounding of the offence will be determined by the Magistrate.

Allowance:
A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the allowance will be determined by the Magistrate.

Custody:
A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.

Conclusion
Triple talaq is a violation of the Sharia and so it is forbidden and innovation by all the jurists and school of jurisprudence in Islam. Islam prohibits dowry. People demand it and it is paid. Islam puts the entire responsibility of incurring all expenses for the marriage on the men but people insist on dumping them on the woman and she and her family accept this. the above judgement provide grant some kind of relief for muslim women and is quite in keeping with holy Quran pronouncements on talaq. Quran emphasis on justice, not on arbitrariness.

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