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Triple Talaq

The Issue of Triple Talaq

The Law Commission recently revived  debate over Triple Talaq by a questionnaire whereby it sought public views on abolition of the practice of ‘triple talaq’.

 

About Triple Talaq

Triple Talaq is a procedure of divorce whereby the Husband utters the word “Talq” thrice in one sitting; thus getting out of the marriage contract. This practice is controversial and has different interpretation among different sects of Islam. Some scholars argue that saying triple talaq in one sitting is null and void and there should be a period of 3 months {three menstrual cycles} between each Talaq. Nevertheless, this practice has been legally recognized in many countries and is particularly practiced in few countries such as Saudi Arabia. At the same time, it has been banned by law in many countries including Pakistan, Bangladesh, Tunisia, Indonesia, Algeria, Iran, Iraq etc. Around the world, this practice is valid in Sunnis only; most shia nations have held it invalid. This practice is still valid in India.

 

Triple Talaq in India – Judicial Pronouncements

The first notable judicial pronouncement came in 2002 in the Shamim Ara vs State of UP case. Though Talaq was not held invalid in this case, yet, the Justice RC Lahoti said that talaq must be pronounced on cogent plausible and reasonable grounds. This verdict also said that prior to talaq, the spouses must appoint two arbitrators, who would make all efforts for reconciliation and resolution. Once all efforts having failed, talaq shall come into effect.

The above verdict though did not invalidate the triple talaq yet, tried to give it a process. In 2002 only, the Aurangabad bench of Bombay High Court invalidated the triple talaq by giving reference from Quran in Dagdu Pathan vs Rahimbi case. In this case, the court declared that a Muslim husband can not repudiate the marriage at will and has to prove that all stages – conveying the reasons for divorce, appointment of arbitrators and conciliation proceedings between the parties were followed.

These judgements served the basis of several later rulings and thus invalidated the instant talaq. The fiercest opposition to this issue comes from All-India Muslim Personal Law Board. It has expressed its disquiet over a petition requesting the Supreme Court to determine the constitutional validity of triple talaq.

Arguments

The key argument to support the validity of triple talaq is that since Muslims in India are in minority, any change in their personal law would not only alter their religious practice but would pave the way for further changes. Thus, despite the fact that over 90% Muslim women want to get rid of this whimsical practice, the Muslims resist this change. This apprehension though can be repudiated on the fact that in Sri Lanka also, Muslims make less than 10% of population but they have enacted Marriage and Divorce (Muslim) Act, 1951, which does not recognize instant divorce.

Triple talaq unconstitutional, violates rights of Muslim women: Allahabad high court

The Allahabad High Court has ruled that the practice of triple talaq (Talaq-e-bidat) among Muslims is unconstitutional and violates the rights of women enshrined in constitution. The order was passed by HC Justice Suneet Kumar while hearing a petition filed by a woman who claimed her husband arbitrarily divorced her. Besides, the High Court also held that No Personal Law Board is above the Constitution i.e. it was indirectly referring to All India Muslim Personal Law Board (AIMPLB).

What is the issue?

  • Talaq-e-bidat is Muslim man divorcing his wife unilaterally by pronouncing the word ‘talaq’ thrice in one go.
  • Thus, it is oral talaq pronounced for irrevocable instantaneous divorce at one go. Many activists say that this practice is not of Islamic origin.
  • AIMPLB, a non-government organisation always has held that Talaq-e-bidat is integral part of Muslims and courts have no role to play in Personal Law as it falls under the Fundamental Right to practice religion.
  • Supreme Court is also hearing a petition challenging the validity of triple talaq, as several individuals and NGOs have sought a ban on its practice.
  • Even, the National Commission of Women (NCW) considers it “highly misused” custom and asked Government to scrap it to protect the rights of Muslim women.

Why triple talaq should be abolished?

The practice of ‘triple talaq’ has enabled husbands to divorce their wives arbitrarily and unilaterally, devoid of any substantiation. It impact adversely on the rights of women to a life of dignity. It also has been abolished in 21 Islamic theocratic countries including Pakistan. It is also against constitutional principles such as gender equality, secularism, international laws etc. Thus, it must be kept in mind that gender equality is a sacred principle of our constitution and modern society. So it is right time to make necessary changes.

What is Government’s position?

Recently Central Government in its affidavit submitted to Supreme Court held that the practice of Triple talaq is against the principles of gender equality, gender justice and dignity enshrined in the Constitution. It is not integral to the right to freedom of religion. It violates right to equality, non-discrimination on the grounds of sex and the right to live with dignity to women in par with men guaranteed in the Constitution.

Triple talaq a highly misused custom: NCW

The National Commission of Women (NCW) has held that triple talaq was a “highly misused” custom and Government should scrap it to protect the rights of Muslim women. NCW clearly mentioned that the traditional custom of triple talaq should be banned in an effort to protect the rights of Muslim women and it cannot be linked to the Uniform Civil Code. According to the commission, Muslim women feels dis empowered because of the practice of triple talaq.

About National Commission for Women (NCW)

The NCW is a statutory body generally concerned with advising the government on all policy matters affecting women. It was established in January 1992 under the National Commission for Women Act, 1990 as per the provisions of the Indian Constitution. The objective of the NCW is to represent the rights of women in the country and to provide a voice for their issues and concerns.