Triple Talaq Explained
Islam is one of the oldest religions around the world today and after Christianity it’s the second most followed religion in the world. Often these days, Islam is criticized due to frequent terror attacks and because of it’s customs of polygamy or Triple Talaq, but it gives everything in codified manner. One can find codified laws for marriage, divorce, succession, kinship etc. in the Holy Quran and narration of various volumes of Hadees available. Divorce laws which are prescribe under Holy Quran and Hadees are most of the times misinterpreted by the Muslims Scholars. Prophet Muhammad said that divorce (talaq) should be avoided at any cost unless and until it’s impossible to carry forward the bond of marriage. Talaq in its primitive sense means dismission. In its literal meaning, it means "setting free", "letting loose", or taking off any "ties or restraint". In Sharia law, it means freedom from the bondage of marriage and not from any other bondage. In the legal sense it means dissolution of marriage by the husband using appropriate words. In other words talaq is repudiation of marriage by the husband in accordance with the procedure laid down by Islamic law.
There are two forms of talaq (divorce) in Islam:
2) Talaq-ul- Biddat
The name itself says "Sunnat", which means Muhammad’s (the prophet) way of life viewed as a model for Muslims.Talaqul-Sunnat is divided into two categories:
a) Talaq-ul-Ahsan (Most Proper):
This is the most proper form of repudiation of marriage. The reason is two-fold: First, there is possibility of revoking the pronouncement before expiry of the Iddat period (period of waiting). Secondly, the evil words of Talaq are to be uttered only once. Being an evil, it is preferred that these words are not repeated.
b) Talaq-ul-Hasan (Proper):
Talaq-ul-Hasan is considered to be a "proper" mode of divorce as per the Holy Quranic injunctions and in the light of Hadees provided by Prophet Muhammad. In this mode parties to the marriage can revoke the divorce before the completion of three Tuhrs. (time period between two menstrual cycles). Hence, the man has to pronounce "Talaq" after completion of every single Tuhr to his wife and therefore, the parties get opportunity for reconciliation.(1)
2) Talaq-e-Biddat (triple or instant talaq):
"Biddat" means any innovation, and Muhammad (Prophet) spoke of biddat as follows:
Muhammad (Prophet) says in this respect: "He who innovates something that is not in agreement with our matter (religion), will have it rejected." Even Allah says in the interpretation of the meaning of the Holy Quran that biddat in Islam is not permissible. [Holy Quran5:4(2) ]. For stating the importance of marriage in Islam and how wife should be treated, Prophet Muhammad said which was narrated by A. Hurraira, "the best person amongst you is one who is best to his wife." (Al Tirmidhi, 628)(3). In other Hadees narrated by Ibn-Musnad, Prophet Muhammad said, "There are three things which are essential for happiness: 1) A righteous wife 2) A spacious home 3) a sound means of transportation.(Musnad, 1:168). (4)The interpretation of these Hadees includes that a wife and marriage bond should be intact. Holy Quranic verses such as in Chapter 2,4 and 65 also gives importance to marriage.(5) Therefore, to dissolve marriage, parties have to go through reconciliation and other means to keep it alive. If all this fails, only then can recourse be taken through divorce.
The worst part of talaq-ul-biddat is that, when a person utters the words of "Talaq" the divorce comes into effect.Prophet Muhammad never agreed upon this form of talaq. The Holy Quran in chapter No.2, 4 and 65 clearly states that Muslim Men have to wait till the period of iddat (period of waiting) ends, and hence disapprove the talaq (divorce) in one go.(6)
Triple Talaq origination:
Talaq-ul-biddat has its origin in the second century of the Islamic era. After two years of ruling, second caliph Umar enforced triple divorce, as per which no one will be permitted to take his wife back after pronouncing three divorces in one go. Author Umar Ahmad Usmani in his book named"Women's Rights in The Qur'an, Women and Modern Society" refers to the noted Egyptian historian Muhammad Husain Haykal's book 'Umar-al-Farouq’ in which the author says that caliph Umar made such an (interpretation) for avoiding hassle and indeed it was need of the hour. Then author Umar Ahmad Usmani further quotes from Haykal's book to show why caliph Umar was constrained to enforce triple divorce. The author says that, when Arabs in the era of caliph Umar were conquering every part of the Gulf, after winning the battles they used to bring male and female slaves both with them to the land of Mecca and Medina.
These women were very attractive and charming and the Arabs were captivated by their charm and wanted to marry them. However, these women insisted on the men giving irreconcilable divorce to their former wives. To satisfy them they would pronounce triple divorce in one go and pretend to having divorced their wives for good.(7) From there, it is in practice.
Origination in India:
Muslims are governed by the Muslim Personal Law (Shariat) Act, 1937 which was passed by the British Government. This law was binding on all Muslims living in India. The British Government also passed an Act for Muslim wives to uplift their rights, namely the Dissolution of Muslim Marriage Act, 1939. These acts contained the detailed provisions about divorce and Triple Talaq was one of them and therefore it was among the Indian Muslims to dissolve marriage through Triple Talaq(8)Muslim marriages in India are considered to be a private matter, unless the couple themselves decided to register their marriage under the Special Marriage Act of 1954. Owing to these historical factors, the checks that have been placed on the husband's unilateral right of divorce by governments of other countries, such as prohibition of triple talaq, had not been implemented in India.
Prodigious judgments under Muslim Personal law relating to divorce:
In Dagdu S/O Chotu Pathan, Latur v. Rahimbi Dagdu Pathan, Ashabi (9) Fahimbi from Latur was married to Dagdu Chote and three children were born from this wedlock. Fahimbi filed a case under Section 125 of the Criminal Procedure Code (herein after referred to as the Cr.P.C.) for maintenance for herself and for her three children. Dagdu Chote married another woman Kamrunbee and had children with her too. He neglected the first wife, Fahimbi, and her children and did not pay any maintenance. On receipt of summons from the Court Dagdu Chote appeared before the court and filed a reply saying he does not owe any maintenance as he divorced her (Fahimbi). He also claimed that he divorced his wife in the presence of a Qazi and two witnesses one of who was Muslim and another one Hindu. He, therefore, prayed before the court that application for maintenance under Section 125 of Cr.P.C. by Fahimbi be dismissed but this plea was rejected by the court and the maintenance application filed by Fahimbi and her three children was allowed. The Magistrate maintained that the fact of talaq must be proved, as it cannot be accepted merely on grounds of pleadings. Fahimbi maintained that she was unaware that talaq has been given to her as it was not communicated to her by registered post. However, a presumption was made by DagduChote that pronouncement of talaq was communicated to the wife. The reasons stated in the talaqnama executed were that she insulted the husband and mother-in-law and there were also differences of opinion, as a result of which they cannot run a family.
The Aurangabad Bench in one of the divorce cases of the Bombay High Court has formulated the issues as follows: 1) whether a Muslim husband has a right to divorce his wife without any reason and merely at his whim; 2) whether the Muslim law mandates pre-divorce reconciliation and whether any pleading by husband in the court that he divorced his wife which would amount to divorce according to Muslim law and whether the husband has to prove in the court that talaq was duly effected. General belief is that a Muslim husband is free to divorce his wife any time at his will and without assigning any reason but the teachings of Holy Quran and other sources of Islamic law hold marriage as contract but once marriage takes place it becomes an institution for life, and this contract is holy and sacred (the Holy Quran describes it as mithaq-e-ghaliz i.e. strong covenant). The talaq must be preceded by an attempt at reconciliation. The Muslim law also recognizes distinction between effective or proper talaq and ineffective or improper talaq. The Aurangabad Bench of the Bombay High Court concluded that a talaq, even if it is oral, must be proved before the Court, if it is contested by wife by leading evidence.(10)
In Marium v. Md. Shamsi Alam,(11) the wife left her husband’s place and went to her parent’s house because she found that the husband was negligent of her health. When the husband went to take her back, she refused to go with him. The husband became agitated and in anger he uttered talaq three times in one breath. But later on, realizing his mistake, he revoked the talaq within the period of iddat. It was held by the Allahabad High Court that although the word "talaq" was uttered thrice, but since they were pronounced in one breath it is to be interpreted as one single pronouncement. It was observed by the court that in this case the talaq was in the "ahsan" form which was revocable. As the husband expressly revoked the talaq before the iddat he cannot be said to have intended the divorce seriously. The marriage was, therefore, not dissolved and the wife had to accompany the husband. In this case the court has interpreted the rules of Muslim law liberally in order to discourage hasty and unconsidered divorces.
In Rahmat Ullah v. State of U.P.,(12) the Allahabad High Court clearly stated, that an irrevocable talaq (talaq-e-biddat) is unlawful because this kind of talaq is against the dictates of the Holy Quran and is also against the provisions of the Constitutionof India.
The case of Shah Bano (13) was a milestone in the Muslim women's search for justice and the beginning of the political battle over personal law. A 60-year-old woman went to court asking maintenance from her husband who had divorced her. The Apex Courtruled in her favour. Shah Bano was entitled to maintenance from her ex-husband under Section 125 of the Cr.P.C. (with an upper limit of Rs. 500 a month) like any other Indian woman. The judgment was not the first granting a divorced Muslim woman maintenance under Section 125. But a voluble orthodoxy deemed the verdict an attack on Islam.
The Congress Government, panicky in an election year, caved in under the pressure of the orthodoxy. It enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986 (herein after referred to as the Act of 1986. The most controversial provision of the Act was that it gave a Muslim woman the right to maintenance for the period of iddat (about three months) after the divorce, and shifted the onus of maintaining her to her relatives or the Wakf Board. (14) The Act was seen as discriminatory as it denied divorced Muslim women the right to basic maintenance which women of other faiths had recourse to under secular law.
The Bharatiya Janata Party saw it as `appeasement' of the minority community and discriminatory to non-Muslim men, because they were still bound to pay maintenance under Section 125, Cr.P.C. However, lawyers who have seen the Act in operation say that there is good reason to take another look at the Act. It contains provisions which have left it open to liberal interpretation. Flavia Agnes, a Mumbai-based lawyer, says that liberal interpretation has not been wanting. Clause A in Section 3 (1) of the Act says that a divorced woman shall be entitled to "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.'' The injunction that "a reasonable and fair provision is made" and "maintenance paid" leaves enough scope for gender-sensitive judgments .Ms. Agnes cites a slew of rulings in States such as Kerala, Maharashtra, Gujarat and Andhra Pradesh, which have awarded sums as maintenance, and "reasonable and fair provisions" in the form of a one-time lump sum payment that Muslim women have never received before. Apart from this, Ms. Agnes says, the 2001 ruling of the full constitutional bench of the Supreme Court in the case of Daniel Latifi and ANR v. Union of India(15), established the procedure of maintenance for Muslims which was not there firstly.. While the Act of 1986 appears to have worked better than it was expected to, what remains a concern to many is the inherent discrimination in excluding divorced Muslim women from a provision of law outside the realm of personal law, which is applicable to all other women.
Triple Talaq Judgment by the Supreme Court:
Commencing a historic hearing on a batch of six petitions and a suo moto PIL challenging the constitutional validity of triple talaq and nikahhalala among Muslims, the Supreme Court said it would first determine whether the practice is fundamental to Islam.
The Supreme Court stated that, there are two-three things on our minds and the first is whether this (triple talaq) is fundamental to the religion (Islam). If it is fundamental to religion, possibly we should not be interfering, and the other aspect is whether triple talaq is sacramental and can be enforced as a Fundamental Right.
Additional Solicitor General Tushar Mehta on behalf of Union of India said that Union is not on any side. We are on the side of gender justice, equality for women and dignity of women. Triple Talaq is against the dignity of women. There is also the issue of gender justice. When the Union of India talks of gender justice and equality of women, then irrespective of the religion, it would also include triple talaq.
Amit Singh Chadha, who was appearing for Shayra Bano, one of the first petitioners in the matter, opened the arguments against the practice of triple talaq among Muslims. He urged his arguments by stating that the Muslim men have absolute right to triple talaq and women have to comply with the provision of the Dissolution of Muslim Marriages Act, 1939, which says divorce granted by Muslim women can be contested by husbands up to the Supreme Court, but women have no legal recourse against triple talaq as they cannot question it. Men have the untrammelled right to pronounce triple talaq, but women’s rights have been restricted.
Senior Advocate Indira Jaising who was appearing for Bebak Collective, a Muslim organization, said that in case of divorces being granted through extra judicial mechanism, there should be a judicial oversight with deal with the consequences. Triple Talaq is violative of the right to equality of Muslim women guaranteed under Articles 14 and 15 of the Constitution to the extent that a Muslim man exercised power to declare unilateral divorce, but the Muslim woman has no control over such unilateral, arbitrary, extra-judicial divorce and her marital status.
Former Union Minister and senior advocate Salman Khurshid was assisting the court in interpreting the holy book of Quran. He added, "Triple Talaq is a non-issue as it cannot take effect and considered to be complete without conciliation efforts between the couple. However, there is no adjudication to determine the validity of the grounds of talaq."Supreme Court bench asked him,"Is the reconciliation after the pronouncement of triple talaq in one go codified?"
Salman Khurshid replied, "No" and further added that, if a man pronounces triple talaq even once and does not revoke it within the next three months, it constitutes valid irrevocable divorce.
Kapil Sibal, who was representing All India Muslim Personal Law Board said, Triple talaq is a non-issue as no prudent Muslim would wake up one fine morning and say ‘talaq, talaq, talaq’. Either the Parliament can enact a law or it should be left to the community itself to deal and the court should not interfere on the issue.
JS Khehar, CJI of Supreme Court opined that there are schools of thought who say that triple talaq is legal, but it is the worst and undesirable form of dissolution of marriages among Muslims.
Former Union Minister Arif Mohammad Khan replied to this and stated, "triple talaq is far from being fundamental and very far from being sacramental to Islam. It violates every good thing which Islam prescribes. What we are seeing in the form of triple talaq is similar to the pre-Islamic era practice where female infants were buried alive... Marriage is the only aspect which is extensively dealt in Holy Quran that lays down the procedure for divorce and various schools of thought have distorted the tenets of the holy book to their liking... Everything you need is in the Holy Quran. If you need more, then look at the life of the Prophet and if you still need more, then use your own good sense... We can change the law, but not the habits of the society. Untouchability was banished by the Constitution, but it stays with us."
Salman Khurshid gave his opinion to this and said,"If thrice pronouncement of talaq is considered once, then 90% of the problem which is created by instant divorce in one sitting would be solved. If triple talaq is taken as only one talaq, then it would lose irrevocability and allow reconciliation efforts among couples during the three month iddat period."
Farha Faiz who was one of the Petitioners busted on Muslim clerics and said that they are running a parallel judicial system like the trial courts and the high courts and the clerics are forcing Muslims not to go to the courts. If unstopped, soon a day will come when there will be such courts (run by Muslim clerics) in every nook and corner.
Attorney General Mukul Rohatgi continued to oppose triple talaq on the premise that it violated the fundamental rights of Muslim women. He further added that, personal law is law, it will have to be tested under Articles 13, 14 and 15.Articles 13 assert the supremacy of the Indian Constitution. Article 14 and 15 provide for equality before the law and prohibit discrimination on the grounds of religion, race, caste, sex or place of birth.
Responding to the petitioner’s contention that triple talaq is not Islamic and is against the mandate of the Holy Quran, Justice Kurian Joseph asked – "What if it is not part of personal law?"
"That your Lordships will have to decide", Mukul Rohatgi responded.
Attorney General Mukul Rohatgi argued that matters of personal law should be in conformity with the Constitution. As far as Hindus are concerned, various steps were taken to bring personal law in conformity with the Constitution. As far as Muslims are concerned, only the Acts of 1937 and 1939 are there, and a small change after the Shah Bano judgement.
After the government made it’s submissions, Kapil Sibal began his arguments for the All India Muslim Personal Law Board. Kapil Sibal submitted that the issue is not triple talaq, it is patriarchy and it is there in every religion. All patriarchal societies are discriminatory. Even many Hindu laws are discriminatory.
Attorney General Mukul Rohatgi replied and said,"If the practice of instant divorce (triple talaq) is struck down by the court, then the Centre will bring a law to regulate marriage and divorce among the Muslim community."
Speaking for the All India Muslim Personal Law Board, Kapil Sibal equated the issue of triple talaq with the belief that Lord Ram was born in Ayodhya."If I have faith that Lord Rama was born at Ayodhya, then it’s a matter of faith and there is no question of constitutional morality. Triple talaq has been there since 637 AD. Who are we to say that this is un-Islamic. Muslims are practicing it for last 1,400 years. It is a matter of faith. Hence, there is no question of constitutional morality and equity.", said Sibal. Sibal was countering the arguments put forth by the opponents of triple talaq who have been arguing for the past two days, with the government also saying a new law to regulate marriage and divorce among the Muslim community would be brought, if all forms of divorce, including triple talaq, are struck down. The AIMPLB counsel said the age-old practice was "part of my faith and you cannot determine what should be my faith. This is the question and this is the issue". He asked whether the court should decide the faith of over 16 crore people. The Muslim body said despite the existence of laws on dowry prohibition and guardianship, Hindu customs were being allowed to remain, like dowry is prohibited but gifts are allowed. "When it comes to Hindu law, you protect all customs, but when it comes to Muslim, you start raising questions over customs. Like when it comes to Dowry Prohibition Act or Guardianship Act you follow customs and protect them," he said.
Arguing for Jamat-ulema-i-Hind, senior advocate Raju Ramachandran said that every citizen of India, whether male or female, has the option of being governed by the Special Marriage Act, 1954. In doing so, he argued they can opt out of personal law. When a person agrees to get married under his/her personal law, he or she is also making a conscious waiver of the right to be governed by the "secular non-religious" law or by a purely civil law. The consent of either party to a marriage is not just to marry a particular person, but to the particular law which will apply to the marriage i.e. whether it is personal law or enacted civil law. In such a situation, a person who consciously opts for the personal law cannot complain that the personal law is unfavourable or discriminatory.
The Attorney General issued his rebuttal to the arguments made by Kapil Sibal on behalf of the All India Muslim Personal Law Board. He confirmed that the Centre is ready to take a leap forward and bring in legislation. This matter is not a majority vs minority. It’s a tussle within the religion for rights of women. It’s not 1,400 years of custom, but 1,400 years of deprivation.
On 18 May, the Supreme Court reserved its judgement on triple talaq after six days of continuous hearings on a batch of petitions challenging the constitutional validity of triple talaq. On the final day, the counsels of several aggrieved women petitioners and women’s rights organizations – including Anand Grover, Arif Mohammad Khan and Indira Jaising – demanded triple talaq to be declared illegal.
Before concluding his arguments, Kapil Sibal told the Supreme Court that the All India Muslim Personal Law Board had decided to issue a circular to all qazis while finalising the nikahnama to advise husbands not to indulge in triple talaq unless under compelling circumstances. This was in response to the court asking the All India Muslim Personal Law Board to include in the marriage contract a provision enabling all Muslim women to say no to triple talaq. Responding to the Supreme Court’s question on whether triple talaq was bad and sinful, Kapil Sibal said, "It may be bad, it may be sinful, but women accept it."(16)
Operative Part of the Judgement delivered by Hon’ble Supreme Court:
Majority View (Justices Kurian Joseph, Rohinton F. Nariman& Uday U. Lalit):
Justice R.F.Nariman opined that divorce breaks the marital tie which is fundamental to family life in Islam. Not only does it disrupt the marital tie between man and woman, but it has severe psychological and other repercussions on the children from such marriage. After the advent of Islam, divorce was permitted to a man if his wife by her indocility or bad character renders marital life impossible. In the absence of good reason, no man can justify a divorce for he then draws upon himself the curse of God. Indeed, Prophet Muhammad had declared divorce to be the most disliked of lawful things in the sight of God. The reason for this is not far to seek. It is clear, therefore, that Triple Talaq forms no part of Article 25(1) of the Constitution. This being the case, the submission on behalf of the Muslim Personal Board that the ball must be bounced back to the legislature does not at all arise in that Article 25(2)(b) would only apply if a particular religious practice is first covered under Article 25(1) of the Constitution. If a constitutional infirmity is found, Article 14 will interdict such infirmity. Positively speaking, it should conform to norms, which are rational, informed with reason and guided by public interest, etc. Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of talaq. Given the fact that triple talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. 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.In our opinion, therefore, the 1937 Shariat 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) of the Constitution and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq."
Justice K. Joseph added, "What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well....Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2, which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice. "He said the simple question that needs to be answered in this case is only whether triple talaq has any legal sanctity. "The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality. In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat. Therefore, in any case, after the introduction of the 1937 Shariat Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice. When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights."
The minority view (Chief Justice J.S. Khehar and Justice S.A. Abdul Nazeer)
The chief justice said the practice of talaq-e-biddat is a constituent of personal law and hence has a stature equal to other fundamental rights conferred in part three of the constitution. "The practice which is in existence and accepted by all for over 1,400 years cannot therefore be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention. Reforms to ‘personal law’ in India, with reference to socially unacceptable practices in different religions, have come about only by way of legislative intervention."Chief Justice Khehar, however, wanted the practice to be stayed for six months. He said till such time as legislation on the matter is considered,"We are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-e-biddat’ (three pronouncements of ‘talaq’, at one and the same time) – as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.
The practice of talaq-e-biddat being a constituent of ‘personal law’ has a stature equal to other fundamental rights, conferred in Part III of the Constitution. The practice cannot therefore be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention. Reforms to ‘personal law’ in India, with reference to socially unacceptable practices in different religions, have come about only by way of legislative intervention. Such legislative intervention is permissible under Articles 25(2) of the Constitution. If anyway we want to set aside the practice of triple talaq, we need to follow the procedure which is more particularly prescribed under Article 25(2) of the Constitution Of India,(17)International conventions and declarations are of no avail in the present controversy, because the practice of talaq-e-biddat, is a component of ‘personal law’ the whole nation seems to be up in arms. There is seemingly an overwhelming majority of Muslim-women, demanding that the practice of talaq-e-biddat which is sinful in theology, be declared as impermissible in law. The Union of India, has also participated in the debate. It has adopted an aggressive posture, seeking the invalidation of the practice by canvassing, that it violates the fundamental rights enshrined in Part III of the Constitution, and by further asserting, that it even violates constitutional morality.During the course of hearing, the issue was hotly canvassed in the media. Most of the views expressed in erudite articles on the subject, hugely affirmed that the practice was demeaning. At the time of the hearing too, counsel who was appearing on behalf of opponent didn’t stopped himself to criticise the concept of triple talaq. The position adopted by others was harsher, they considered it as disgusting, loathsome and obnoxious. So religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice, which constitutes personal law.(18)
In the famous case of ‘Shamim Ara v.state of U.P. & A.N.R. (2002)’,(20) the Supreme Court declared triple talaq invalid and banned. So how can you ban a banned thing? The problem is not talaq but of men honoring the rights of women. That banning it will not change the reality of Muslim women at all. However, the difficulties that Muslim women are facing are not a result of talaq (triple or not) but of the unislamic customs. Triple talaq is itself a violation of the Sharia and so it is forbidden and innovation by all the jurists and schools 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. Islam mandates that marriages must be simple and inexpensive but people insist on expensive, ostentatious weddings. Islam prohibits any kind of harassment at the time of divorce if that becomes necessary but men do the opposite. All these and more are the real reasons why Muslim women are left high and dry and are the victims of the oppression of their men. How is banning triple talaq going to solve these problems? "Among divorced Indian women, 68 per cent are Hindus whereas just 23.3 per cent are Muslims", says the Census 2011 data on the marital status of Indians. So it exposes the fact that Hindu women deserve more attention than Muslims if "rampant divorce" is really a hurdle for women empowerment and gender equality.(21) And now as per the report prepared by Muslim Mahila Research Kendra in coordination with Shariah Committee for Women, the number of cases of divorce for Muslims stood at 1,307 against Hindu at 16,505. The cases of divorce for Christians in these districts stood at 4,827 and 8 for Sikhs.(22) However, the above judgement will grant some kind of relief for Muslim women and is quite in keeping with the Islamic law, particularly in keeping with the Holy Quran pronouncements on talaq. The Holy Quran lays emphasis on justice, not on arbitrariness. Anyone who ignores the spirit of justice violates Holy Quranic spirit. The clerics and members of Muslim personal law board must not allow any Holy Quranic injunction or spirit to be violated. The Holy Quran has done great service to the cause of women and empowered them through their clearly defined legal rights. Time has come that this Holy Quran spirit be upheld and justice be done to suffering Muslim women.
One must also congratulate the learned judges of the Supreme Court to have discussed the matter in detail in their judgement in the light of the Holy Quran and its injunction and not merely on grounds of secular and constitutional laws. This is indeed a healthy change.
(1)Al-Qur'an, the Guidance for Mankind – English by Muhammad Farooq-i-Azam Malik (Chapter No.2,4, 65)
(2) Al-Qur'an, the Guidance for Mankind – English by Muhammad Farooq-i-Azam Malik. (Chapter No.5)
(3) Jama-At-Tirmidhi Vol 2, 544-1204, English Translation-Complied by Imam Hafeez Abu Essa Muhmmad Ibn Esa At-Tirmidhi, Published by Islamic Research Section Darussalam.
(4) English Translation of Musnad Imam Ahmad Bin Hanbal Vol.1, Published by Dar-Us-Salam Publications.
(5) Al-Qur'an, the Guidance for Mankind – English by Muhammad Farooq-i-Azam Malik (Chapter No.2,4, 65)
(6)Al-Qur'an, the Guidance for Mankind – English by Muhammad Farooq-i-Azam Malik (Chapter No.2,4, 65).
(7) Women's Rights in The Qur'an, Women and Modern Society by Umar Ahmad Usmani. 2nd Edition by Asgar Ali Engineer.
(8)Muslim Personal Law (Shariat) Application Act, 1937, Bare Act by Professional Publications (2013 Edtion).
(9) 2003 (1) BomCR 740.
(10) Frontline, Litigation,Volume 19 - Issue 15, July 20 - August 02, 2002.
(11)AIR 1979 All 257.
(12) II (1994) DMC 64.
(13) 1985 AIR 945, 1985 SCR (3) 844
(14)Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that "a reasonable and fair provision and maintenance to be made and paid to her within the iddah period by her former husband".
(15)2001( 7 )SCC 740.
(17) Article 25(2) of Indian Constitution 1950, Nothing in this article shall affect the operation of any existing law or prevent the State from making any law(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
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