1.7. LITERATURE REVIEW
? Historical background of Triple talaq
Ibrahim B. Syed, Triple talaq, Islamic Research Foundation International, Inc., visit www.irfi.org/articles/articles_151_200/triple__talaq.html
Ibrahim B. Syed in his article has discussed the history and origin of triple talaq and how this innovative mode of divorce came into existence and practice and whether this mode is in consonance with the Quranic injunctions. Legend has it that during the reign of the second Caliph of Islam, Hazrat Umar, there was a sudden rise in the incidence of talaqs in Arab. During those days the Arabs conquered many Middle Eastern countries including Syria, Iraq, Egypt, etc. Many people were brought as prisoners to Mecca and Medina which included women prisoners as well. These women were very beautiful and attractive and the Arabs were charmed with their beauty and wanted to marry them immediately. However, these women put forth a condition before the men that in order to marry them, the men had to divorce their existing wives instantaneously by pronouncing the word talaq thrice in a single sitting. The men readily accepted the condition because they knew that under Islamic law a divorce can only take place when talaq is given thrice in three separate period of tuhr and mere instant repetition in one sitting is void and against Islamic law. In this way, these men could not only marry these women prisoners but also retain their existing wives.
However, the matter was immediately reported to the Caliph Hazrat Umar who in order to prevent such misuse of the Shariat law decreed that even mere repetition of the word talaq thrice would irrevocably annul the marriage. This order of the Caliph was a mere administrative measure to curb the malpractice of instant divorce as carried out by the Arabs and not a law which was later made into one by the Hanafi jurists and was unfortunately given religious sanction and recognition of law.
After analyzing this article, the researcher is of the opinion that the origin of triple talaq has a fanatic twist to it. This innovative mode of divorce is nowhere mentioned in Quran which is the guiding force of the Shariat law. In Islam, marriage is a social contract with clear conditions to be noted down in a nikahnama (marriage contract). Not only this, it provides for affirmative provisions for a bride such as mehr (dower). Triple talaq is mentioned nowhere in the Quran, and perhaps, this is the reason why it is illegal in most Muslim countries. The Quran gives equal right to both husband and wife to seek divorce. But it nowhere allows instant divorce, for it treats marriage as a serious social relationship, entered into by two individuals. The author has also mentioned that Quran insists on all possible attempts for reconciliation before a divorce actually takes place unlike the practice of triple talaq which does not provide any possible scope for reconciliation as it is an instantaneous and unilateral mode of divorce.
? Meaning and Definitions of Triple talaq
Furqan Ahmad, “Triple talaq: An Analytical Study with Emphasis on Socio-Legal Aspect”, Regency Publications, 1994
The book authored by Furqan Ahmad takes the reader through the background of dissolution of marriage under Islamic law including the background of triple talaq and how this mode of divorce came into practice. The author further discusses the various modes of dissolution of marriage under Shariat law. The author has considered the baneful effects of such mode of divorce on the society especially the divorced woman. The author emphasizes on the socio-legal aspects of triple talaq.
In general view, the word “talaq” means severance of marriage. It is an Arabic word which means- I divorce you. In the case of Moonshee Buzloor Rahim v. Laleefutoon Nisa , the court observed that only Muslim men have the option to exercise the act of talaq, at any time without giving any plausible cause or explanation.
The two different sects of the Muslim community i.e. Shias and Sunnis have different rules and procedure to engage in talaq. However, talaq has the following three steps which are common to both the sects. They are:-
1) Initiation- the process of divorce is initiated with the husband pronouncing the word “talaq”. A talaq may be affected either orally or by a written document known as taaqnama.
2) Reconciliation- under the Muslim law jurisprudence, divorce is affected when the husband pronounces the word talaq thrice. But the couple is supposed to make an attempt to reconcile during the waiting period in between first pronouncement and second pronouncement with the help of mediators and family members. If during this period the husband engages in sexual intercourse with the wife, the divorce is negated.
3) Completion- the procedure of talaq is completed with the third pronouncement and the divorce becomes irrevocable. Thereafter, the wife becomes haram for the husband.
Triple talaq or Talaq-ul-biddat is an innovated mode of divorce not sanctioned by the Holy Quran which is considered as sinful nevertheless is legal and practiced by majority of Muslim population in India. The concept of triple talaq is nowhere mentioned or provided in Quran which is the ultimate basis of the Shariat law, due to which there is a lack of clear cut definitions. However, Aqil Ahmed has attempted to define triple talaq as –
“a divorce which is pronounced thrice in one sitting when the wife is in the state of purity (tuhr), i.e., when man says: “I divorce you, I divorce you, I divorce you.”
This mode of talaq is prevalent among Sunni Muslims only which comprises of 70% to 80% of the Muslim population in India. Once a divorce is effectuated, the wife becomes haram for the husband and he is prohibited to undergo a fresh nikah with her until and unless halala is performed. He can perform nikah with her only if she marries another person and the marriage is consummated and thereafter the person willingly divorces her. It is the worst form of exploitation which violates basic human as well as fundamental rights.
2. CRITICAL ANALYSIS-
2.1. SOCIAL IMPLICATIONS OF TRIPLE TALAQ
Nothing has been more derogatory in discriminating weaker sex in any religion than pronouncing triple talaq which is practiced by Muslim men in a few countries including India. Most of the Muslim men treat their wives as mere commodity, they think that they can marry them anytime as well as get rid of them by just uttering talaq thrice. But it is to be noted that women are being deserted by their husband who give them instant talaq without
any valid justification and reasonable cause. India is a country which abounds in personal laws and each community has its own personal law and religiously,Muslims in India are governed by a pre-independence era Shariat law i.e. Muslim Personal Law Application (MPLA) Act, 1937 which remained silent on this unilateral mode of divorce. Muslim personal laws and Indian secular laws already provide a two-tiered system of protection for Muslim women. .Since MPLA has not been codified and most of the people do not have knowledge of sharia laws. In such scenario it is open to any kind of judgment and interpretation, which makes the circumstance all the more difficult to deal with As a matter of fact, triple talaq has emerged as a socio religious bane to the Muslim women in India due to its inherent devastating effect which are as follows:-
i) Deed of Community Leaders
The incapacitated status of Muslim women got debunk in the debating case of Nagma Biwi vs. State of Orissa . Begum Nagma was pronounced triple talaq by her husband in a drunken state. When he realized his grave mistake next day, he immediately called her back for reunification as she also desired to return to her husband. But this time, the biggest hurdle were community leaders they were apposing their marriage as according to them they were no more husband and wife and stood as a wall between their marriages. They forcibly sent Nagma Biwi and her three children to her father’s house with the suggestion to marry somebody and perform Nikah halala. According to which she must have to marry another man, consummate the relationship and after following the original procedure has to manage to get divorce from the latter husband, only then she will be able to marry the former husband again. The present rule of halala and divorce based on the interpretations of the so called maulana’s and molwiz is very ruthless and not only inconsequential in today’s time but it is also contrary to the feeling of holy Quran and left the women destitute in her travel of life.
ii) Extent of victimization
Muslim women are highly vulnerable to this whimsical and denigrating practice, i.e. Triple talaq. It is used as a shotgun to ruin the married life of a woman, someone received it on phone someone on whatsapp or someone got it on 10 rupees stamp paper and they suffered from this because their husbands have a magical spell talaq, talaq, talaq and thus Muslim man easily escapes from his responsibility by these magical words. This is a curse on Muslim population. The suffering becomes more aggravating and painful for the majority of illiterate/ less educated women who are. Clearly, they are directly victimized because, no provision was made by any Law, Act or, Court of India to protect these women from the blatant discrimination, economic deprivation and social stigma inflicted on them through triple talaq. The best example of confrontational politics leading to actual victimization of the woman in question was the landmark Shah Banu case. This was a watershed moment for Indian Muslims. This case triggered reactions in so many directions and become precursor of d
(iii) Quranic Stand
The concept of “triple talaq” does not exist in the Holy Quran. The Holy Quran prescribed equal right for both men and women without any sort of unethical or intentional discrimination to either of them. Neither The Prophet nor The Holy Quran approves this unilateral, disgraceful and irreversible form of triple talaq which is synonymously known as Talaq-ul-biddat. In the Holy Book Quran, nikah means ‘Misaqan Ghaliza’ that means a strong bond and it explains how and with whom one can enter into this strong bond and this bond cannot be dissolved without proper reason and method. The correct law of talaq as ordained by the Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters – one from the wife’s family and the other from the husband’s, if the attempts fail, talaq may be effected. Therefore, triple talaq or talaq-ul-biddat in its present version of women oriented discriminatory and unilateral form is in contravention of the spirit of The Holy Quran and hence, un-Islamic. The correct law of talaq as ordained by the Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters – one from the wife’s family and the other from the husband’s, if the attempts fail, talaq may be effected.
(iv) Need of Uniform Civil Code
Such injustice provokes the need of Article 44 of the Indian Constitution which proclaims for Uniform Civil Code. In the multi-religious Indian society where the rights of people from almost all religions are protected including that of religious minorities however small they may be e.g. Parsis. Article 25(2) further empowers the State to regulate secular affairs surrounding religion and to legislate and enact measures pertaining to social welfare and reform. Any such reform brought in the form of a uniform civil code would fall under Article 25(2) and would not violate religious freedom guaranteed under Article 25. The State can regulate or restrict a practice if it is of the view that in the interest of social welfare and reform, it is necessary to do so. The Constitution of India requires the State to strive to secure for the citizens of India a uniform civil code throughout India. The interpretation of laws, in the absence of a uniform code for all religious communities debars other religious communities from becoming a party to the case in the court in which an appeal is made to restrain the religious heads from harassing the members of that community. During the constituent assembly debate Dr. B.R.Ambedkar expressed that “I personally do not understand why religion should be given this vast, expansive jurisdiction, as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequalities, discrimination and other thing, which conflicts with our fundamental rights.” The basis of such statements is that if any rule of any religion in any ways violates human rights it no longer remains a personal matters of the religion. These baseless conservative rituals imposed upon womens tends to invalidates their existence as respectable part of the society and as a result of which instead of enjoying the right and privileges they are victimized and this impact adversely on the right of women to a life of dignity. A uniform civil code would restrict unorthodox practices in the name of religion.
2.2. CONTROVERSIAL ISSUES ON TRIPLE TALAQ
With the advent of modern technologies, it has been observed that negative tendencies crop up in many spheres of Indian society, which are becoming more difficult for the government to tackle with. One such tendency by a section of men is to utilize the technology in giving triple talaq to their wives. A man can divorce his wife electronically viz. by sending e-mail, Skype, Whatsapp, Facebook, SMS or, even saying triple talaq telephonically without the presence of a witness, no matter if she is in a position to receive the message for network problems or, whether she is in the coverage area at that moment or not. Considering the age of sufferance of divorced women, according to the Census 2011 data, it has been found that out of all married Muslim women 13.5 per cent were married even before the age of 15 and 49 per cent were married between 14 and 19 years of age. Marriage at such an early age, decreases the possibility of acquiring education or being financially sound. According to a survey by Bharatiya Muslim Mahila Andolan ( It is an autonomous, secular, rights-based mass organization led by Muslim women), The first study says 88% of divorces were unilateral while the second study says 59% divorces were unilateral also it has been found that 95 per cent of divorced women received no maintenance from their husbands. In many cases, women are not in a position to immediately become the breadwinner and manage kids. However, this system was solemnized ago in the year 2010 by the Darum Ulum Deoband (DUD) a Sunni Islamic Seminary amongst strong protests from women’s groups. DUD even ruled that triple talaq uttered in intoxicated or, heated moment during arguments will remain effective and irreversible, thereby conferring Muslim husbands the easiest mode of ending marriage bonds. Once divorced the hapless woman has very little option to get justice, other than accepting it to be a fate in her life. Very interestingly, Muslim Personal Law Board (MPLB) does not accept the validity of digital mode of divorce, which has, however, no standing in the court. Nevertheless, Muslim women groups differ with the stand of MPLB because affected women claim that MPLB’s stand is not true in their practice. Many other nations have outlawed this un-Islamic system of triple talaq for divorce as it snatches the liberty from both of them, which goes against their actual honest and cohesive intentions. So a liberal, honest and impartial interpretation of this critical aspect is required to cure the malady in Personal Law.
Ray of hopes
It is an encouraging point that gradually, signs of consciousness and sense of securing self-right have been emerging amongst Muslim women in India. An organization named Bharatiya Muslim Mahila Andolan (BMMA) came up with a draft Muslim Law in the Year 2014. BMMA works in eleven states to fight for justice and development of Muslim women in India. It has more than fifty thousand memberships from across these states. BMMA has got necessary inputs from different intellectual quarters and claims to have incorporated necessary provisions in the draft law to remove the prevalent discriminatory practices and unlawful divorce in line with the spirit of The Holy Quran.
A survey has also revealed that more than 95 % women from economically unprivileged class want reforms in the Muslim Personal Law Application Act, 1937. They specifically want codified law on the basis of Quranic justice frameworks within the ambit of Islam to cover up the area of the age of marriage, divorce system, polygamy and custody of children among other issues.
2.3. JUDICIAL APPROACH TOWARDS TRIPLE TALAQ UNDER MUSLIM LAW
Judicial decisions of the past in India on the Muslim law of divorce by husband have been based mainly on the concept of Talaq-al-Bidah, which has been enforced unmindfully without regard to its devastating effects on the Muslim society. Criticizing talaq ul-bidah, in K C Moyin v. Pathumal Beevi a Muslim Judge of Kerala court observed said that, “my judicial conscience is disturbed at this monstrosity of the law. Similarly in Saleha v. Sheikh Umar Hayat v. Mahboobunnisa, Syed Jamaluddin v. Valian and Ajmery v. Moinit was held that, there has been an abominable practice under which when a deserted wife after long years of waiting for reconciliation takes resort to legal action and seeks either separate maintenance or restitution of conjugal rights, the husband tries to defeat her claim by pretending to have divorced her some time in past. In such cases courts have accepted the plea and refused to decree the desired relief.
In 2002 Supreme Court stressed that in Muslim law there is indeed a proper procedure talaq, which includes reconciliation efforts. And unless husband proves that he followed the said procedure, his claim of having divorced his wife in the past cannot be accepted. This ruling was affirmed in 2007 and in several other High Court decisions. In Syed Maqsood v. State of Andhra Pradesh however, the court while examining the efforts of reconciliation to be made necessarily before pronouncing a divorce, held that whenever a person divorces his wife without an effort of reconciliation, it shows his state of mind that he had already decided to pronounce the divorce and such reconciliation would be an exercise in futility.
The practice of talaq by the husband almost defies any bondage. The husband is not required to assign any reason, or to go to court, or to take consent of the wife, or give regard and consideration to her condition, and follow any procedure or formality. Justice Khalid, in Hannefa v. Pathummal called such arbitrary practice as “beside this piece of monstrosity”. And the case of A.S. Praveen Akhtar v. the Union of India the Hon’ble Madras High Court proclaimed that notwithstanding the absence of a cause or, efforts to reconcile the couple, triple talaq was valid and not going against the constitution of India and dismissed the writ petition. The judgment of Madras High court not only fuelled atrocities on Muslim women but also gave momentum to the arbitrary triple talaq school of thoughts maintained by local clergy in India. In the case of Praveen Akhtar, her liberty of staying within the marriage bondage was snatched away and bestowed to the wish of divorcing the errant husband, which is a burning case of robbing the women liberty that was validated by the judiciary of a country. Nothing more shameful consequence can happen from such a great land out of the un-Islamic practice. Triple talaq in its present form is based on the theme of inequality which is in violation of the Article 14 enshrining the spirit of equality, while talaq-ul-biddat distorts fundamental rights against any kind of discrimination as enshrined in the Article 15 of the Indian Constitution Finally, by deviating from the normal format of divorce talaq-ul-biddat spoils the essence of the Article 21 which proclaims the right to life and personal liberty. The unfortunate part of this issue was that even after recognizing the agony and social perils of victims ahead, the Supreme court of India passively allows continuation of such discriminations citing ground that it is the issue of a particular religion and not of all minorities, which may be true, but appears to be in violation of the Article 15 of Indian Constitution.
2.4. CONSTITUTIONAL VALIDITY OF TRIPLE TALAQ
As far as judiciary is concerned, it has shown its disfavour towards the unilateral mode of talaq but found it helpless to pronounce verdict as it did not want to interfere with the Quranic injunctions and Muslim Personal Laws.
The Privy Council in Agah Mohommad vs. Koolsoom bi, has held that –
“It would be wrong for Courts on a point of this kind to put their own construction on the Quran in opposition to express ruling of commentators of such great antiquity and high authority.”
In Rahmatullah v State of U.P. and others, Justice H.N. Tilhari of Allahabad High Court (Lucknow Bench) however, declared Triple talaq invalid and observed:
“”Talaq-ul-biddat or Talaq-i-bidai, that is , giving the irrevocable divorce at once or at one sitting or by pronouncing it in a tuhr once in an irrevocable manner without allowing the period of waiting for reconciliation or without allowing the will of Allah to bring about reunion, by removing differences or cause, of differences and helping the two in solving the differences, runs counter to the mandate of holy Quran and has been regarded as, while all under Islam-Sunnat, to be sinful.” The court observed that the need of the time is that codified law of Muslim marriage divorce should be enacted keeping pace with the aspirations of the Constitution as the laws reflects the aspirations of peoples.
In the case of Rukia Khatun v. Abdul Khalique Laskar the Division Bench of the Guwahati High Court reiterated the correct procedure of talaq as specified by the Holy Quran. Thus, the prevailing judicial decisions in India, therefore is that a talaq given without any just and valid reason and which is not preceded by any attempt of reconciliation is invalid.
The Bombay High Court verdict in the case of Dagdu s/o Chotu Pathan, Latur v. Rahimbi Dagdu Pathan Ashabi, came as a great relief to the women of the Muslim community wherein the court directed to comply with all legal preconditions valid reason and which is not preceded by any attempt of reconciliation is invalid. The court said-
“In every such exercise of right to talaq, the husband is required to satisfy the preconditions of arbitration for reconciliation and reasons for talaq, conveying his intention to divorce the wife is not adequate to meet the requirements of talaq in the eyes of law.”
The above judgment was made in the light of the increasing incidences and indiscriminate use of triple talaq by the unscrupulous husbands and sought to keep checks and restraints on the arbitrary practice of giving divorce to their wives. However, the judgment nowhere contradicts with the tenets of the Shariat law and the Holy Quran, where the very act of divorce is undesirable, let alone the uncontrolled use which is considered a sin.
2.6. RECOMMENDATION COMMITTEE ON TRIPLE TALAQ AND
JUDGMENT OF STRIKING DOWN UNILATERAL TALAQ
The Government of Maharashtra constituted a committee in 2008 led by Dr. Mehamoodur Rehman to enquire into various aspects of minority society like educational, economic and social backwardness of the Muslims in the state of Maharashtra. Women activists/ Muslim women organizations welcomed Rehman committee recommendations of banning unilateral triple talaq and incorporation of provisions for adequate compensation for victims, as it provides unique ammunition to fight for bringing in legislation to prevent illegal practice of triple talaq in the days to come. They ecstatically described that their efforts received government stamps in recognition of the distress of Muslim women in the Indian society for the first time.
In Re: Muslim Women’s Quest for Equality v. Jamiat Ulama-i-Hind & others and Sayro bano v. Union of India
The Hon’ble Supreme Court constituted a bench of five judges for hearing the issue of triple talaq for six days. The bench comprised of Chief Justice Khehar, Justice Kurian Joseph, Justice Nariman, Justice Uday Umesh Lalit and Justice S Abdul Nazeer. The court stressed that on hearing on the issue they would not go into the question of polygamy. And if triple talaq is found fundamental to Islam they would not interfere.