Triple Talaq

Introduction

Triple talaq (also known as talaq-e-mughallazah—Irrevocable divorce) is a form of Islamic divorce that was practised by Muslims in India. It allowed any Muslim man to legally divorce his wife by stating the word talaq (the Arabic word for "divorce") three times in verbal, written, or more recently electronic form. 

It has been a subject of controversy and debates within the country, raising the issues of justice, gender equality, human rights and secularism. The government of India and the Supreme Court of India have been involved in addressing the issues. On 22 August 2017, the Indian Supreme Court struck down instant triple talaq (talaq-e-biddat) and termed it unconstitutional. Three judges on the five judge Constitution bench decided against triple talaq while two ruled in favour.

What is it?

A triple talaq is a form of divorce that was practised in India, whereby a Muslim man could legally divorce his wife by pronouncing talaq (the Arabic word for divorce) three times. The pronouncement could be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or social media. The man did not need to cite any cause for the divorce and the wife need not be present at the time of pronouncement. After a period of iddat, during which it is ascertained whether the wife is pregnant, the divorce becomes irrevocable. 

In the recommended practice, a waiting period was required before each pronouncement of talaq, during which reconciliation is attempted. However, it had become common to make all three pronouncements in one sitting. While the practice was frowned upon, it was not prohibited. A divorced woman might not remarry her divorced husband unless she first married another man, a practice called Nikah Halala. Until she remarried, she retained the custody of male toddlers and pre-pubertal female children. Beyond those restrictions, the children came under the guardianship of the father.

The All India Muslim Personal Law Board (AIMPLB), had told the Supreme Court that women could also pronounce triple talaq, and could execute nikahnamas that stipulated conditions so that the husbands could not pronounce triple talaq. The practice of instant divorce is already banned in 20 Muslim-majority countries, including Pakistan.

Background

The Muslim family affairs in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937 (Muslim Personal Law), one of the first acts to be passed after the Government of India Act, 1935 became operational, introducing provincial autonomy and a form of dyarchy at the federal level. It replaced the so-called "Anglo-Mohammedan Law" previously operating for Muslims and became binding on all of India's Muslims.

The Shariat is open to interpretation by the ulama (class of Muslim legal scholars). The ulama of Hanafi Sunnis considers this form of divorce binding, provided the pronouncement was made in front of Muslim witnesses and later confirmed by a Sharia court. However, the ulama of Ahl-i Hadith, Ithna Ashariyya and Musta'lian Isma'ili Shia persuasions do not regard it as proper.

In traditional Islamic jurisprudence, triple talaq is considered to be a particularly disapproved, but legally valid form of divorce. Changing social conditions around the world have led to increasing dissatisfaction with traditional Islamic law of divorce since the early 20th century and various reforms have been undertaken in different countries. Contrary to practices adopted in most Muslim-majority countries, Muslim couples in India are not required to register their marriage with civil authorities. Muslim marriages in India are considered to be a private matter unless the couple 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 the prohibition of triple talaq, have not been implemented in India.

Opposition

• The practice had faced opposition from Muslim women, some of whom filed a Public Interest Litigation in the Supreme Court against the practice, terming it "regressive".The petitioner asked for Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, to be scrapped, describing it as being against Article 14 of the Constitution.
• On 13 May 2017, during the hearings before its final judgement, the Supreme Court described Triple Talaq as the "worst form of marriage dissolution". It noted that the custom is banned in the Muslim-majority countries of Saudi Arabia, Morocco, Afghanistan and Pakistan.
• On 8 December 2016, the Allahabad High Court observed in a ruling that the practice of Triple Talaq was unconstitutional and violated the rights of Muslim women.
• In March 2017, over 1 million Indian Muslims, a majority of whom were women, signed a petition to end Triple talaq. The petition was started by the Muslim Rashtriya Manch, an Islamic organization affiliated to the right wing Hindu nationalist Rashtriya Swayamsevak Sangh.
• On May 10, 2017, senior cleric Maulana Syed Shahabuddin Salafi Firdausi denounced Triple Talaq and Nikah Halala, calling them un-Islamic practices and instruments to oppress women.

Support

• The All India Muslim Personal Law Board (AIMPLB) defends the practice. In April 2017, citing a report prepared by Muslim Mahila Research Kendra in coordination with Shariah Committee for Women, AIMPLB has claimed that Muslims have a lower rate of divorce compared to other religious communities, countering the argument that Muslims have the highest number of divorce in the country due to the practice of Triple Talaq. It also claimed that it had received forms from 3.5 crore Muslim women across the country, supporting Shariat and Triple talaq.
• AIMPLB issued a code of conduct in April 2017 regarding talaq in response to the controversy over the practice of Triple Talaq. It also warned that those who divorce for reasons not prescribed under Shariat will be socially boycotted in addition to calling for the boycott of those who use Triple Talaq recklessly and without justification. In addition, it also stated that it should be delivered in three sittings with a gap of at least one month each.

Judgement
A multi-faith bench heard the controversial Triple Talaq case in 2017. Though 2 judges upheld the validity of Triple Talaq (Talaq-e-Biddat), the three other judges held that it was unconstitutional, thus barring the practice by 3:2 majority. The bench asked the Central government to promulgate legislation within six months to govern marriage and divorce in the Muslim community. The court said that until the government formulates a law regarding Triple Talaq, there would be an injunction against husbands pronouncing triple talaq on their wives.

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.

Justice Nariman & Uday U Lalit: 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 quoted the 1932 decision of the Privy Council in which triple divorce was held as valid under Sharia to conclude that since instant triple divorce is “manifestly arbitrary”, the Shariat Act, to the extent it recognised triple divorce, is ultra vires the Constitution.

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

He held that the purpose of the 1937 Act was to remove un-Islamic and oppressive customs and usages from Muslim Personal Law, and since triple divorce is not mentioned in the Quran, it is not a part of Sharia — and thus cannot be enforced under the Shariat Act. 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.



References
The Indian Express
Wikipedia
Indian Kanoon