Triple Talaq Issue (Detailed Analysis)

Triple talaq issue

Types of Talaq in Islam:

Muslim Personal Law says that a talaq can either be given by the husband or by the wife. It can also be a mutual divorce.

Talaq given by husband:

"Talaq-e-Sunnat" or "Talaq-ul-Raje": It is a revocable divorce that can be pronounced in Hasan or Ahsan forms.

"Talaq-e-Ahsan": It is the 'most proper' form of talaq in which the husband expresses divorce in a single sentence - "I have divorced thee" - during the period of tuhr (when the wife is not menstruating) and then has to wait till the iddat period is over.

Iddat period for a woman who has been divorced by her husband is usually three monthly periods and during this time, she cannot marry another man.

If before the completion of iddat, the husband resumes cohabitation with his wife or says that "I have retained thee", the divorce is revoked. In case the woman is pregnant, the iddat period lasts until she gives birth. The waiting period for a woman after menopause is three months.

"Talaq-e-Hasan": It is the 'proper' form of talaq. In this form, three successive pronouncements of talaq are made by the husband in three successive tuhrs (when the woman is not menstruating). In case of a non-menstruating woman, its pronouncement may be made after the interval of a month or thirty days between the successive pronouncements. This form of talaq can be revoked any time before the third pronouncement.

"Talaq-e-Biddat" or "Talaq-ul-Bain"(Irrevocable divorce) is instant Triple Talaq and is effective as soon as the word "Talaq" has been pronounced thrice. In this form of talaq, three pronouncements can be made during a single tuhr (when the woman is not menstruating) by saying "I divorce thee" thrice at the same instant.

Ila and Zihar: The other ways in which a husband can divorce the wife are Ila and Zihar.

In Ila, the husband takes an oath not to have sexual intercourse with his wife. In this case, the husband does not co-habit with his wife for a period of four months and after the expiry of four months, the marriage is dissolved.

In Zihar, the husband compares his wife with a woman within his prohibited relationship (like mother or sister). In this case, the wife can approach the court of law.

Divorces given by wife are of following types:

In Islam, only husband can pronounce the talaq on his wife, and not vice versa. However, he can delegate this power to his wife or a third person by agreement - absolutely or conditionally, temporarily or permanently. This is called "Talaq-e-Tafweez”, a delegated divorce.

The other type of divorce by wife is called lian. If the husband levels false charges of unchastity or adultery against his wife, then this amounts to character assassination and the wife has got the right to ask for divorce. This practice is called lian.

A mutual divorce:

Mubarrat or Khula: A divorce by mutual agreement is called Mubarrat or Khula.

In Mubarrat, the aversion is mutual and both sides desire separation. In this mode of divorce, the offer may be either from the side of wife or from the side of husband. When an offer Mubarrat is accepted, it becomes an irrevocable divorce and iddat is necessary.

In Khula, however, the wife initiates the divorce. This is effected by the return of her husband's wedding gift called Mahr.

A judicial divorce:

Under Muslim Marriage Act, 1939, there are several grounds in which judicial divorce can be pronounced. A woman can seek divorce in the court of law under following circumstances:

If the whereabouts of the husband are unknown for a period of four years,

If the husband

neglects or fails to provide for her maintenance for a period of two years or

has failed to perform his marital obligations for a period of three years or

was impotent at the time of marriage or has been insane for a period of two years or

is suffering from leprosy or virulent venereal disease or is sentenced to imprisonment for a period of seven years or upwards.

The divorce can also be initiated by the wife in the Muslim court if the husband treats the wife with cruelty, even if such conduct does not amount to physical violence.

The other conditions are

if the wife has been given in marriage by her father or guardian before she attained 15 years of age,

if the husband associates with women of evil repute or leads an infamous life or attempts to force her to lead an immoral life or disposes of her property,

obstructs her in the observance of her religious practice or if he has more wives than one and does not treat her fairly.

Supreme court judgement in Triple Talaq case:

What is triple talaq?

Out of three forms of talaq: Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable, while Biddat is irrevocable.

Biddat is considered ‘sinful,’ but permissible in Islamic law.

The All India Muslim Personal Law Board (AIMPLB) holds that for the Hanafis, who make up more than 90% Sunnis in India, triple talaq is a matter of faith followed for 1,400 years.

How did the case come about?

The case before the Supreme Court was born out of an unrelated matter regarding the denial of inheritance rights to Hindu women under a 2005 amendment to the Hindu Succession Act (Prakash and Others versus Phulavati and Others, October 16, 2015).

A Hindu woman had won against her brothers in the High Court but lost in the Supreme Court.

At the end of the judgment, the Bench of Justices Adarsh Kumar Goel and Anil R Dave ordered that Muslim law too is discriminatory, for which a separate Public Interest Litigation should be initiated.

In a rare move, it registered a suo moto public interest litigation (PIL) petition titled ‘In Re: Muslim Women’s Quest for Equality’ to examine whether arbitrary divorce, polygamy and nikah halala (where a Muslim divorcee marries a man and divorces him to get re-married to her former husband) violate women’s dignity.

The court rued missing the opportunity to address the question of gender inequality in both the Shah Bano and Danial Latifi cases.

In the Shah Bano case, the court merely goaded the government to frame the Uniform Civil Code.

In the Latifi case, it upheld the right of Muslim women to maintenance till re-marriage.

The current case was filed by Shayara Bano to get triple divorce, polygamy and nikah halala declared unconstitutional. The case had an interesting twist — her husband had, prior to giving her triple divorce, filed a case for the restitution of conjugal rights, and it was Shayara who had left her matrimonial home.

Many Muslim women and organisations backed the court’s initiative. However, a Constitution Bench decided to confine itself to examining triple talaq and not polygamy and nikah halala.

Why does it matter?

This has been an issue of concern for over 65 years for Muslim women, who comprise approximately 8% of the population as per the 2011 census. “Muslim women want to have a life equal to that of another woman, say a Christian or Hindu wife,” the government argued in court.

Triple talaq judgement:

Supreme Court of India has declared the practice of Triple Talaq as unconstitutional by 3:2 majority. Justices Kurian Joseph, UU Lalit and RF Nariman delivered the majority Judgment. Chief Justice Khehar and Justice Abdul Nazeer dissented.

The Constitution Bench of five judges, belonging to five different religious communities, took more than three months to author its 395-page judgment on triple divorce. The historic verdict marks a red-letter day for gender justice in India. However, even judges who held triple divorce unconstitutional based their decision on arbitrariness rather than on the discriminatory nature of triple divorce. Thus, gender justice was not the basis of the majority judgment.

Views of judges:

Nariman: Triple divorce is unconstitutional

Justice Nariman has held that instant irrevocable triple talaq not preceded by the efforts at reconciliation is unconstitutional, as it is contrary to the right to equality, which includes the right against arbitrariness.

The basis of his decision is the recognition of triple divorce by the Shariat Act, 1937. The Act laid down that in matters of talaq, gift, will, inheritance etc., “the rule of decision where parties are Muslims shall be Muslim Personal Law”.

He also observed that the duties or obligations of a Muslim can be divided into five categories,,

Farz, which must be obeyed and Wajib, which is slightly less important;

Mustahab, or recommendatory;

Jaiz, which is permissible, and to which religion is indifferent;

Makruh, or unworthy; and finally,

Haram, or forbidden. Instant triple talaq,

He said, is either in category 3 (permissible) or, probably, in category 4, which is undesirable.

Since it is not obligatory or recommended and is rather sinful or undesirable, it cannot meet the “essentiality test”, and is, thus, not protected by Article 25 (freedom of religion). Also, triple talaq, which is irrevocable and is valid under Muslim Personal law even when the husband assigns no reason for his action, is arbitrary, and therefore, unconstitutional, Justice Nariman has said.

He has struck down Section 2 of the Shariat Act, which recognises and enforces triple divorce. All parent laws, subordinate legislation and executive orders are subject to fundamental rights, and must be struck down if they are not compatible.

Justice Nariman dissented with the judgment of the CJI on the issue of the judiciary not being the right forum to dispose of such matters. The Supreme Court cannot refuse to decide when approached by a litigant under Article 32 against the violation of his/her fundamental rights, and put the ball in Parliament’s court, he said.

Khehar: Major milestone on freedom of religion

Justice Khehar’s judgment is the most detailed — 272 pages — and a major milestone in the history of freedom of religion in India. For the first time in Indian judicial history, freedom of religion subject to restrictions given in Articles 25 and 26 has been held to be “absolute”.

After quoting Constituent Assembly debates on Articles 25 and 44, the CJI held that personal law is part of the freedom of religion, which courts are duty-bound to protect. He also said courts are not supposed to find fault with provisions of personal law, which are based on beliefs, not logic. Personal law, he said, is beyond judicial scrutiny.

The CJI explicitly said that accepting the petitioner’s prayer to hold triple talaq unconstitutional would amount to negating freedom of religion. He equated triple divorce to fundamental rights.

Disagreeing with Justice Nariman, he observed that since the recognition of Muslim Personal Law by the Shariat Act of 1937 does not give it statutory status, and because Muslim Personal Law is not ‘law’ as held by the Supreme Court, the Shariat Act, or triple talaq under it, cannot be held unconstitutional.

He also turned down the central government’s argument citing international conventions, saying such conventions, if they were contrary to fundamental rights, cannot be implemented.

The CJI also refused to strike down triple divorce as violative of public order, health and morality, or for being contrary to other fundamental rights such as the right to equality or the right to live with human dignity.

As in the case of sati and the devdasi practice, in triple talaq, too, Parliament should take the lead, keeping in view similar reforms in Muslim countries, he said. Using the Supreme Court’s extraordinary powers under Article 142, he ordered that no triple talaq will be given for six months. Justice Joseph disagreed with the use of Article 142 in this case.

Joseph: Triple divorce is un-Islamic

The third and most important judgment was delivered by Justice Joseph who fully endorsed the CJI’s opinion on freedom of religion, thereby ensuring its majority.

He agreed with Justice Nariman on triple divorce not being an essential part of Muslim Personal Law. But he disagreed with Justice Nariman on the interpretation of the Shariat Act — concurring, rather, with Justice Khehar’s opinion that the Shariat Act is not a legislation regulating triple divorce.

What is sinful in theology must be held bad in law as well, Justice Joseph ruled. He also observed that the legislature, while enacting laws on gender justice, must give due weightage to freedom of religion.

The Muslim Women (Protection of Rights on Marriage) Bill, 2017

The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on December 28, 2017.

The Bill 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 Bill makes declaration of talaq a cognizable and non-bailable offence.  (A cognizable offence is one for which a police officer may arrest an accused person without warrant.)  A husband declaring talaq can be imprisoned for up to three years along with a fine.

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 decided by a First Class Magistrate.

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

Bill has been passed in the Lok Sabha but is pending in the Rajya Sabha, where the opposition is demanding to send the bill to a standing committee.

Shah Bano case:

The Mohd. Ahmad Khan vs. Shah Bano Begum & Ors. or the Shah Bano maintenance case is seen as one of the legal milestones in battle for protection of rights of Muslim women. While the Supreme Court upheld the right to alimony in the case, the judgment set off a political battle as well as a controversy about the extent to which courts can interfere in Muslim personal law. The case laid the ground for Muslim women’s fight for equal rights in matters of marriage and divorce in regular courts, the most recent example being the Shayara Bano case in which the Supreme Court invalidated the practice of instant triple talaq.

About the Shah Bano case

Background: In April 1978, a 62-year-old Muslim woman, Shah Bano, filed a petition in court demanding maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer in Indore, Madhya Pradesh. Khan had granted her irrevocable talaq later in November. The two were married in 1932 and had five children — three sons and two daughters. Shah Bano’s husband had asked her to move to a separate residence three years before, after a prolonged period of her living with Khan and his second wife.

Shah Bano’s claim: Shah Bano went to court and filed a claim for maintenance for herself and her five children under Section 123 of the Code of Criminal Procedure, 1973. The section puts a legal obligation on a man to provide for his wife during the marriage and after divorce too if she isn’t able to fend for herself. However, Khan contested the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the iddat period after divorce.

AIMPLB’s stand: Khan’s argument was supported by the All India Muslim Personal Law Board which contended that courts cannot take the liberty of interfering in those matters that are laid out under Muslim Personal Law, adding it would violate The Muslim Personal Law (Shariat) Application Act, 1937. The board said that according to the Act, the courts were to give decisions on matters of divorce, maintenance and other family issues based on Shariat.

Court’s Judgement: After detailed arguments, the decision was passed by the Supreme Court of India in 1985.

On the question whether CrPC, 1973, which applies to all Indian citizens regardless of their religion, could apply in this case.

Then Chief Justice of India Y.V. Chandrachud upheld the decision of the High Court that gave orders for maintenance to Shah Bano under CrPC.

For its part, the apex court increased the maintenance sum.

The case was considered a milestone as it was a step ahead of the general practice of deciding cases on the basis of interpretation of personal law and also dwelt on the need to implement the Uniform Civil Code. It also took note of different personal laws and the need to recognise and address the issue of gender equality and perseverance in matters of religious principles.

Government’s populist move: The following events were unfavourable to a great extent with the then Rajiv Gandhi Congress government. This led to the passing of the Muslim Women (Protection on Divorce Act), 1986. This law overturned the verdict in the Shah Bano case and said the maintenance period can only be made liable for the iddat period.

The new law said that if a woman wasn’t able to provide for herself, the magistrate had the power to direct the Wakf Board for providing the aggrieved woman means of sustenance and for her dependent children too.

Judicial review: Shah Bano’s lawyer Danial Latifi had challenged the Act’s Constitutional validity. The apex court, though upholding the validity of the new law, said the liability can’t be restricted to the period of iddat. One of the key points of relevance in the verdict that set it apart from previous cases was the recognition of women’s claim for treatment with equality and dignity, particularly in cases of marriage.

Shah Bano later withdrew the maintenance claim she had filed.

Right to maintenance

Maintenance Obligation of a husband to maintain his wife arises out of the status of the marriage.

Right to maintenance forms a part of the personal law.

Under the Code of Criminal Procedure, 1973, right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives.

Claims of the wife, etc., however, depend on the husband having sufficient means.

Claim of maintenance for all dependent persons was limited to 500 per month. But, this limit was removed by the Code of Criminal Procedure (Amendment) Act, 2001. Inclusion of the right of maintenance under the Code of Criminal Procedure has the advantage of making the remedy both speedy and cheap.

However, divorced wives who have received money payable under the customary personal law are not entitled to claim maintenance under the Code of Criminal Procedure.

Currently, the Govt is seeking Parliamentary approval for Triple Talaq bill. Once passed a husband pronouncing Instant Triple Talaq on his wife can be sentenced to 3 years in jail.