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Criminalisation of Triple Talaq in India

Human rights essentially indicates equality and no discrimination, but truth be told, it has not been exactly implemented in that manner. It has been recognized and in fact, preached all throughout that women are inferior to men and can never be equal to them. Even in present times and to this day, women are not given their deserved position in society.

They may have shown their excellence and caliber in various fields but the mindset that they are inferior to men still prevails. Hence, issues on women rights are gaining a lot of importance. In the field of Muslim personal law, the practice of Talaq-e-biddat or the triple Talaq has been a reason for oppression of Muslim women for ages.

This practice breaks down the sacred institution of marriage based on the whims of a husband. The Constitution of India guarantees freedom and equality based on gender and religion, but this practice effectively violates the constitutional norms. However, with the case of Shayara Bano v. Union of India, the Supreme Court has conclusively struck off the practice of triple Talaq as unconstitutional.

Following such a judgment, the Muslim Women (Protection of Rights on Marriage) Bill was introduced in 2017 which makes the practice a cognizable and a non-bailable offence and shall also sentence any such perpetrator to three years of imprisonment. This project seeks to throw light on the practice of triple Talaq and how the rights of Muslim women have been enhanced and given importance through the annulment of the practice.

Introduction:
Marriage under the Muslim law is an institution which has always been pious and sacred since it is considered to be an act of ibadat (worship). Since marriage is considered to be sacred, its breakdown is not accepted in the society.

The Talaq-e-biddat, also known as the ‘triple Talaq’ is one of the modes of breakdown of a marriage under the Muslim law. It takes place through the pronunciation of the word Talaq three times consecutively by the husband. In order to constitute a valid Talaq, the words must clearly indicate the intention of the husband to breakdown the marriage.

Triple Talaq has always been a source of oppression for the Muslim women mainly because of its irrevocable nature. The Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2017 [1]which declared the practice as null and void and made it a punishable offence. As the Bill proposed that the mere pronouncement of Talaq thrice would be a cognizable and non-bailable offence, there was widespread opposition regarding the same on the ground that there would be a possibility of its misuse.

Triple Talaq became illegal in India on 1 August 2019. The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was passed on 26 July 2019 which made instant triple Talaq in any form such as spoken, written, or by electronic means void, with an imprisonment for up to three years for any such perpetrator. Since ages, Muslim women have been fighting for gender equality under the Islamic law that governs the right related to marriage, divorce and property rights. Since the Quran does not support a patriarchal system, this has encouraged Muslim women to actively fight for their rights relating to marriage, divorce and inheritance.

Different Forms Of Talaq

  1. Ahasan Talaq:
    It consists of a single pronouncement of divorce made in the period of tuhr, or at any time, if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period of iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to Talaq in writing. Similarly, this requirement 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 is that divorce can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may be expressly or impliedly. Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says I have retained thee the divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also results in the revocation of divorce.[2
     
  2. Hasan Talaq:
    In this the husband is required to pronounce the formula of Talaq three times during three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement is made, the Talaq, becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr.
     
  3. Talaq-ul-Biddat:
    It came into vogue during the second century of Islam. It has two forms:
    1. The triple declaration of Talaq made in a period of purity, either in one sentence or in three;
    2. The other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise. This type of Talaq is not recognized by the Shias.
      This form of divorce is condemned. It is considered heretical, because of its irrevocability. In India, this type of Talaq is prohibited in India due to various judicial pronouncements.[3]
       
  4. Ila:
    In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.
     
  5. Zihar:
    In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the given period Zihar is complete. According to Shia law, Zihar must be performed in the presence of two witnesses.

    After the expiry of fourth month, the wife has following rights:
    1. She may go to the court to get a decree of judicial divorce;
    2. She may ask the court to grant the decree of restitution of conjugal rights.
    Where the husband wants to revoke Zihar by resuming cohabitation within the mentioned period, the wife cannot seek judicial divorce.

    It can be revoked if:
    1. The husband observes fast for a period of two months, or;
    2. He provides food at least sixty people, or;
    3. He frees a slave.
       
  6. Divorce by mutual agreement
    Khula and Mubarat:
    They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. The word khula, in its original sense means to draw such as taking off one’s clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce.

    The husband has no power of cancelling the ‘khula’ on the ground that the consideration has not been paid. The consideration can be anything; usually it is mahr, the whole or part of it. But it may be any property though not illusory. In Mubarat, the outstanding feature is that both the parties desire divorce.

    Thus, the proposal may emanate from either side. In Mubarat both, the husband and the wife, are happy to get rid of each other. Among the Sunnis when the parties to marriage enter into a Mubarat all mutual rights and obligations come to an end. The Shias insist that the word mubarat should be followed by the word talaaq, otherwise no divorce would result.

    They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.
     
  7. Divorce by wife:
    The divorce by wife can be categorized under three categories:
    1. Talaaq-i-tafweez:
      Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently. A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated.
       
    2. Lian:
      If the husband levels false charges of adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on this grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian.
       
    3. By Dissolution of Muslim Marriages Act 1939
      Section 2 of the Act runs there under:
      A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds, as analyzed:
      That the whereabouts of the husband have not been known for a period of four years: If the husband is missing for a period of four years the wife may file a petition for the dissolution of her marriage. The husband is deemed to be missing if the wife or any such person, who is expected to have knowledge of the husband, is unable to locate the husband.

      Section 3 provides that where a wife files petition for divorce under this ground, she is required to give the names and addresses of all such persons who would have been the legal heirs of the husband upon his death. The court issues notices to all such persons appear before it and to state if they have any knowledge about the missing husband. If nobody knows then the court passes a decree to this effect which becomes effective only after the expiry of six months. If before the expiry, the husband reappears, the court shall set aside the decree and the marriage is not dissolved.

      That the husband has neglected or has failed to provide for her maintenance for a period of two years: It is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek divorce on this ground. A husband may not maintain his wife either because he neglects her or because he has no means to provide her maintenance. In both the cases the result would be the same.

      The husband’s obligation to maintain his wife is subject to wife’s own performance of matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband’s failure to maintain her because her own conduct disentitles her from maintenance under Muslim law.

      That the husband has been sentenced to imprisonment for a period of seven years or upwards:
      The wife’s right of judicial divorce on this ground begins from the date on which the sentence becomes final. Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by the husband or after the appeal by the husband has been dismissed by the final court.

      That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years:
      The Act does define marital obligations of the husband. There are several marital obligations of the husband under Muslim law. But for the purpose of this clause husband’s failure to perform only those conjugal obligations may be taken into account which is not included in any of the clauses of Section 2 of this Act.

      That the husband was impotent at the time of the marriage and continues to be so:
      For getting a decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and continues to be impotent till the filing of the suit. Before passing a decree of divorce of divorce on this ground, the court is bound to give to the husband one year to improve his potency provided he makes an application for it. If the husband does not give such application, the court shall pass the decree without delay.

      If the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease:
      The husband’s insanity must be for two or more years immediately preceding the presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or incurable. The Act provides that this disease must be of incurable nature. It may be of any duration.

      Moreover even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce on this ground. That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated;

      That the husband treats her with cruelty:
      1. Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
      2. Associates with women of ill-repute or leads an infamous life, or
      3. Attempts to force her to lead an immoral life, or
      4. Disposes of her property or prevents her exercising her legal rights over it, or
      5. Obstructs her in the observance of her religious profession or practice, or
      6. If he has more than one wife, does not treat her equitably in accordance with the injunctions of the Holy Quran.

       
  8. Irretrievable Breakdown of Marriage:
    Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law. In 1945, in Umar Bibi vs. Muhammad Din[4], it was argued that the wife hated her husband so much that she could not possibly live with him and there was total incompatibility of temperaments. On these grounds the court refused to grant a decree of divorce. But twenty five years later, in Neorbibi vs. Pir Bux[5], the court granted the divorce.

Origin Of Talaq-E-Biddat Or Triple Talaq:

The pre-Islamic Arabian state was supposed to be a time of obliviousness and disarray. This is where man never carried on with a legitimate life. It is just with the proclamation of the Prophet that the circumstances changed. In this period, a man and a woman could marry any number of spouses. The Prophet set out the arrangement of marriage and separation. He halted the training that existed in pre-Islamic Arabian state. Consequently, the Prophet could never uphold this act of triple Talaq which is irreversible. Biddat implies development and henceforth, it is an enhanced type of separation which was not laid down by the Prophet.

Today with innovation, current devices being utilized for the correspondence of triple Talaq, the circumstance has gotten more regrettable. This act of triple Talaq started with the Arabs when they vanquished Syria, Egypt and Persian districts. The men got pulled in to female network of the Syrian and Egyptian district. The Syrian and Egyptian ladies were prepared to acknowledge them just in the event that they articulated Talaq in three sittings to their spouses at home.

The Muslim men knew about the act of Talaq and realized that this sort of Talaq was void. In this way, they expected that they could marry their spouses moreover. Expecting this, they consented to separate from their spouses with proclamation of triple Talaq.

This is the inception of the training.[6] This occurred during second Caliph Umar's period. At the point when he got the updates on the abuse of Talaq by the men, he proclaimed such Talaq to be official, with the goal that men despise both the ladies. This was only a brief measure received to rebuff the men who deceived their family.

Triple Talaq From The View Of The Indian Constitution:

Article 25 of the Constitution ensures complete freedom to practice and propagate any religion. Like all other Fundamental Rights, it is dependent upon limitations and does not ensure strict practices that can adversely influence the government assistance of residents. Hence, Article 25 is superseded by Article 14, which ensures the Right to Equality as triple Talaq denies a Muslim woman’s uniformity under the watchful eye of the law.

Article 25 is additionally liable to Article 15 (1) which expresses that the State will not victimize any resident on grounds just of religion, race, standing, sex. Since triple Talaq does not work in the kindness of the Muslim women, it disregards Article 15 (1) of the Constitution. However, area 2 of the Muslim Personal Law (Shariat) Application Act of 1937[7] perceives triple Talaq as a legal right, bringing it under the ambit of Article 13 of the Constitution. Article 13 characterizes 'law' also, says that all laws, encircled before or after the commencement of the Constitution, will not be violative of the major rights.

The Landmark Judgment:

In the landmark case of Shayara Bano And Ors V. Union Of India And Ors[8], Shayara Bano was married for 15 years. In 2016, her husband divorced her through Talaq–e-biddat (triple Talaq). This is an Islamic practice that permits men to arbitrarily and unilaterally effect instant and irrevocable divorce by pronouncing the word ‘Talaq’ (Arabic for divorce) three times at once in oral, written or, more recently, electronic form.

Ms.Bano argued before the Supreme Court of India that three practices – Triple Talaq, Polygamy, and Nikah Halala (The practice requiring women to marry and divorce another man so that her previous husband can re-marry her after Triple Talaq) – were unconstitutional. Specifically, she claimed that they violated several fundamental rights under the Constitution of India (Constitution) namely, Articles 14 (equality before the law), Article 15(1) (prohibition of discrimination including on the ground of gender), Articles 21 (right to life) and Article 25 (freedom of religion). Her petition underscored how protection against these practices has profound consequences for ensuring a life of dignity. Further, it asserted that failure to eliminate de jure (formal) and de facto (substantive) discrimination against women including by Non-State actors, either directly or indirectly, violates not only the most basic human rights of women but also violates their civil, economic, social and cultural rights as envisaged in international treaties and covenants.

The Supreme Court bench, comprising of five judges, delivered its verdict on the Triple Talaq case, terming the practice void and illegal. The petitions, filed by five Muslim women, challenged the validity of Triple Talaq (divorce) in the Muslim community.

The five-judge bench , comprising of Chief Justice JS Khehar and Justices Kurian Joseph, RF Nariman, UU Lalit and Abdul Nazeer, delivered a split verdict, with the CJI being in dissent. "Triple Talaq may be a permissible practice, but it retrograde and unworthy. Since triple Talaq is instant, it is irrevocable and the marital tie gets broken. It is violative of Article 14, the right to equality," they said
Here are some of the significant points raised by the judges:[9]
Justice Kurian Joseph: There are four sources of Islamic law. Only the Quran is the first source of law, therefore sources other than the Quran are a supplement to what is in it. Therefore, there can be nothing more than what is written in the Quran. Quran attributes permanence to matrimony.

Triple Talaq is against the tenets of Quran, and hence, it violates the Sharia. The purpose of the 1937 Act is to declare Shariat as the only law governing Muslims.
Justice UU Lalit: endorsed the view of Justice Kurian.

Justice Rohinton Fali Nariman: It is a disapproved form of divorce. Even the Hanafi law says triple Talaq is sinful. 1937 Act recognizes triple Talaq and therefore does not violate Article 13. Triple Talaq won’t fall within confines of Article 13(1) and 25. It is not possible for the court to fold his hands when petitioners come to court. Court has to declare whether practice is legal or not.

CJI Khehar: Triple Talaq integral to Islam in India and part of personal law. Triple Talaq is important to Sunnis of Hanafi school, has to be accepted as important to their culture. Triple Talaq does not violate Article 25, 14 And 21 of the Constitution. Practice being a constituent of personal law, it can't be set aside on the grounds of constitution morality by judicial intervention. Legislative intervention needs to be followed in respect of triple Talaq, if it has to be set aside.
Justice S Abdul Nazeer endorsed the view of CJI Khehar.

Muslim Women (Protection Of Rights On Marriage) Bill, 2019:

The Muslim Women (Protection of Rights on Marriage) Bill, 2019 [10]was presented in the Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on June 21, 2019. The Bill makes all statement of Talaq in written or electronic structure, to be void and unlawful. It characterizes Talaq as Talaq-e-biddat or some other comparative type of Talaq articulated by a Muslim man bringing about unalterable separation. Talaq-e-biddat alludes to the training under Muslim individual laws where declaration of the word 'Talaq' threefold at a time by a Muslim man to his better half outcomes in a moment and unalterable separation.

The Bill makes a statement of Talaq as a cognizable offense, drawing in as long as three years detainment with a fine.

The offense will be cognizable just if data identifying with the offense is given by:
  1. the wedded lady (against whom Talaq has been announced), or
  2. any individual identified with her by blood or marriage.

The Bill gives that the Magistrate may allow bail to the denounced. The bail might be conceded simply subsequent to hearing the lady against whom Talaq has been articulated, and if the Magistrate is fulfilled that there are sensible justification for allowing bail.

The offense might be intensified by the Magistrate upon the solicitation of the lady against whom the Talaq has been proclaimed. Intensifying alludes to the methodology where the different sides consent to stop legitimate procedures, and settle the contest. The terms and states of the aggravating of the offense will be dictated by the Magistrate.

A Muslim lady against whom Talaq has been proclaimed is qualified for look for resource remittance from her better half for herself and for her needy youngsters. The measure of the recompense will be dictated by the Magistrate. A Muslim woman against whom such Talaq has been proclaimed is entitled to ensure custody of her minor kids. The manner of such custody shall be controlled by the Magistrate.

Conclusion:
Hence, it tends to be presumed that the creation of Triple Talaq as unlawful or void was a major step taken by both the governing body and legal executive. It was like an ultimate dream come true for all the women who were victims of its abuse. It was utilized by individuals as a toy and use of the Talaq word multiple times through any methods, be it oral, composed or electronic structure was rampant and it subsequently transformed the customs as indicated by themselves without mulling over the privileges of the Muslim women. Talaq or separation as in Hindu law is to be the final retreat and cannot be taken just on an inconsequential mileage of the marriage. Likewise, the ongoing patterns show that even after being proclaimed as unlawful and void, individuals are as utilizing it wrongfully.

End-Notes:
  1. Eesha Shrotriya and Shantanu Pachauri, Criminalisation Of Triple Talaq: Dissecting The Constitutional And Socio-Legal Aspects (Sep.20, 2020, 8:05 AM), https://www.academia.edu/42811413/Criminalisation_of_triple_Talaq_Dissecting_the_constitutional_and_socio_legal_aspects
  2. Chand Bi vs. Bandesha, AIR 1960 Bom 121
  3. Mst. Salena Bi vs. Sheikh Gulla, AIR 1973 M.P. 207
  4. ILR (1994) 25 Lah
  5. AIR 1971 Ker 261
  6. Dr Aradhana Nair, Muslim Women (Protection Of Rights On Marriage) Bill, 2018: An Analysis Of The Criminalisation Of Triple Talaq In India (Sep.24,2020,9:37 AM), https://www.pramanaresearch.org/gallery/prj-p437.pdf
  7. R.Gattaiah, Triple Talaq: The Indian Constitution (Sep.24, 2020, 9:41 AM), http://ijcrt.org/papers/IJCRT1704301.pdf
  8. Writ Petition (C) No.118 of 2016
  9. HT?Correspondent, Five Supreme Court judges who passed the verdict on triple Talaq (Sep.24, 2020, 10:07 AM), https://www.hindustantimes.com/india-news/five-supreme-court-judges-who-will-pass-verdict-on-triple-Talaq-issue/story-owThP7w19lxkMPh32aCwDP.html
  10. Ministry: Law and Justice, The Muslim Women (Protection of Rights on Marriage) Bill, 2019 (Sep.24, 2020, 10:14 AM), https://www.prsindia.org/billtrack/muslim-women-protection-rights-marriage-bill-2019

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