In a patriarchal society, women face a number of problems on a daily basis. This discrimination of sex is not just limited to any religion, of course. Every religion has given women, a secondary position in the society but religion per se cannot be blamed solely for assigning inferior status to women. The male-dominated society, the values of people and the structure of the society are dispensed with what is the attitude of people (involving both, men and women) towards women. Despite of all the women’s rights guaranteed by the Constitution of India, there are various ways in which women are exploited even today. There’s no denying that, this inclination towards improving the status of women and giving them equality in various fields has uplifted their spirits to a great extent but there are still many barriers that restrict the elimination of this patriarchal ideology from the society. Divorce in Islam is one such example. Marriage is a union of souls and families but in Muslim Law it is considered a contract. Even though, Islam insists upon the subsistence of marriage and focusses on the avoidance of breach of marriage, it had laid down some brutal rights for men to dissolve such an institution that would ultimately change the lives of women, in a brutal fashion as no such rights have been given to women under Muslim Personal Law.
Triple Talaq under Muslim Personal Law:
Talaq is an Islamic expression for divorce, which means dissolution of marriage, where a man has the right to severe all marital knots with his wife without asking for her consent. There are many types of talaqs in Muslim Personal Law, one of them being, “Talaq-e-Biddat” also known as “instant Triple Talaq”. Triple talaq is a form of divorce where a Muslim man could legally divorce his wife by simply pronouncing the word “talaq”- thrice, orally, in writing or even in an electronic form.
Many women have been tormented in the name of triple talaq and were divorced for trivial matters. The use of triple talaq has become a subject of debate. This practice is considered to be against equality, human rights and secularism as it violates the basic fundamental right, the Right to Equality under Article 14, of the Muslim women and it was clear that they were being discriminated (violation of Article 15).
ShayaraBano v. Union of India[i]: It was the landmark case of ShayaraBano that started the fight against the horrendous practice of triple talaq.
ShayaraBano was married to Rizwan Ahmed for 15 years. In 2016, her husband divorced her using the instantaneous triple talaqor talaq -e biddat. Shayara then, filed a Writ Petition in the Supreme Court asking it to declarethe three practices i.e. Talaq-e-Biddat, Polygamy and NikahHalalaas unconstitutional, for they violated Articles 14, 15, 21, 25 of the Constitution of India. Nikah Halala is yet another Islamic practice, in which, a divorced woman who wishes to remarry her husband, can only do so after she has obtained divorce from a second husband. Once she has taken divorce from her second husband, she can go back to her first husband. Whereas, polygamy is a practice which allows Muslim men to have more than one wife.
In the year 2017,the Court asked ShayaraBanoalongwiththe Union of India, various other women’srights associations, and the All India Muslim Personal Law Board (AIMPLB) to give written submissions on the issues relating to Talaq-e-Biddat, NikahHalala and polygamy. The Union of India and other women’s rights organizations supported Shayara’s plea that these practices are unconstitutional. The All India Muslim Personal Law Board hadalso argued that the uncodified Muslim personal law is not subject to judicial review and that these are essential practices of the Islamic religion and are protected under Article 25 of the Constitution of India.
The Triple Talaq Bill, 2019
The Muslim Women (Protection of Rights on Marriage) Billwas introduced in the Lok Sabhaby Mr. Ravi Shankar Prasad (the Minister of Law and Justice) on June 21, 2019 and replaced an Ordinance promulgated on February 21, 2019. This Bill, makes instant triple talaq or Talaq-e-Biddat a punishable offence as laid down by the Supreme Court’s judgment in the case of ShayaraBano vs. Union of India (in August, 2017).In a 3:2 majority judgment, the apex court set aside instant talaq as an arbitrary practice.[ii]
Triple Talaq void and illegal:
The Clause 3, Chapter 2 of the Bill says, “any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”.[iii]
The Bill makes the practice of instantaneoustriple talaq a cognizable and a non-bailable offence. The continuance in the practice of triple talaq was posing many problems for the Muslim women who had fallen prey to it and so it was necessary to take immediate actions to prevent such practice and make strict provisions so as to do the same.[iv]
The Clause 3 contains the punishment for promoting triple talaq. It states that, “whoever pronounces Triple Talaq upon his wife shall be punished with imprisonment for a term which may extend to three years and fine”. So, it prescribes imprisonment of up to 3 years with fine for someone who pronounces triple talaq upon his wife. Also, as per clause 7 (c) of Chapter 3 no person who has been accused of an offence under the Triple Talaq Law shall be released on bail until the magistrate, after having heard the woman upon whom talaq was pronounced, is convinced that bail can be granted on certain reasonable grounds, which basically gives an important right in the hands of the Muslim women.[v]
After the law was made, many women were relieved.This law has proved to be a baton for all these aggrieved women. Criminalizing the practice of triple talaq and guaranteeing imprisonment upto 3 years for such offenders has offered some consolation to the women. In past decade, Muslim women have been raising their voices against this practice. Several women have also approached the Supreme Court, demanding justice against such an odious offence. These women also jogged the memory of the government and the opposition and reminded them about their constitutional obligation of enabling all women (including Muslim women) in order to obtain gender equality. The political parties did not look into the matter as they should have, primarily. they believed that this issue fell under the prerogative of the patriarchal clerics and that women did not have a say in it.
The effect of the law:
The current laws may not be perfect and may not affect the lives of these women instantly but reforms in law are important. All those who have been fighting for gender justice especially, Muslim women, for that matter, will get encouragement through this specific law. Many women have already started sharing their thoughts upon the same and many of them have even stepped out to fight their own battles against this traditional practice of triple talaq.[vi] No doubt these women still have to go through a lot in order to achieve what they deserve but these reforms will only empower them and encourage them to reach their goal i.e., justice. It has also given the women, the right to reconcile if they want to or if there is a genuine prospect of reconciliation on the part of the husband. Besides that, the awareness about the Quranic injunctions on gender justice has been growing significantly. It has made people aware that triple talaq is not sanctioned by the Quran. More and more such cases of triple talaq are being reported now. Many of these cases are coming from States like Uttar Pradesh, Delhi, Maharashtra, Kerala, Rajasthan etc.[vii] Not all of these cases are new but also contain some old cases that are being registered now. The bill has definitely intrigued a sense of fear among the Muslim men preventing them to pronounce triple talaq upon their wives.[viii]
Eventhough, this law has provided these women with the appropriate aid and the right to complain about such an offence being committed against them, it has raised some serious problems too. One major problem being, that this law can also be used against innocent men and it cannot even be proved otherwise that he had not pronounced instant talaq against his wife. Also, according to Section 5 of the law, Muslim women are entitled to maintenance in case such talaq has been pronounced against her by her husband and as per Section 6, she is also entitled to have custody of her minor child but Section 3 states that, there can never be a provision of such maintenance and custody of whomsoever, in case the talaq is held void. This is a major loophole in the Bill made against this practice. Such contradiction in the law gives no legal effect in such matters and provides no meaning as far as maintenance and custodian rights of the women are concerned.
Women all over the world have been victims of many societal issues. It’s not just about any woman now but about women amongst different classes that are exploited in the name of tradition and culture, be it Sati Prathafor Hindu women or Triple Talaq for Muslim women, or any other such religious implementation, they have all made the lives of women, miserable. But nothing has ever stopped them to fight for their rights. It is yet another issue to ponder upon as to why do they still have to fight against such practices or to obtain equal rights as men? Why has religion manipulated the rights of women at the first place? Law has made significant reforms in these fields but there is still a lot left to work upon. Religion can make it difficult to make reforms as these issues might take a controversial turn but there is still scope. These reforms, ultimately give women, the power and the rights to achieve what they truly deserve in the society. Also, the current Bill needs to be drafted well, as it is full of contradictory provisions, else it would not do justice completely, as it ought to do.
Q1. How many judges heard the triple talaq case?
Ans. Five judges from five different communities heard the case in the Supreme Court.
Q2. Is Nikah Halala a type of talaq under Muslim personal law?
Ans. No, Nikah Halala is not a type of divorce. Instead, it is a law that requires a woman to marry and divorce another man in order to return to her first husband.
Q3. What are the provisions for bail for the offence of triple talaq?
Ans. The offence is non-bailable i.e. only a Magistrate and not the police can grant bail. Bail can be granted only after hearing the wife.
Q4. Does the Quran contain anything about triple talaq?
And. The concept of triple talaq does not exist in the Quran. The concept of “triple Talaq in one sitting” or “Instant Talaq” is alien to the Quran.
Q5. What is the provision for bail for triple talaq?
Ans. Under a non-bailable law, bail cannot be granted by police at the police station itself. A provision has been added to allow the magistrate to grant bail after hearing the wife.
[i]ShayaraBano vs Union Of India And Ors. Ministry Of … on 22 August, 2017
[iv]ShayaraBano and others v. Union of India and others, Writ Petition (C) No. 118 of 2016