The Provisions of Triple Talaq in India

The Provisions of Triple Talaq in India

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About Triple Talaq

Triple talaq, also known as talaq-e-biddat, instant divorce. And talaq-e-mughallazah (irrevocable divorce), was a form of Islamic divorce. Basically which has been used by Muslims in India. Especially adherents of Hanafi Sunni Islamic schools of jurisprudence. It allowed any Muslim man to legally divorce his wife by uttering the word talaq (the Arabic word for “divorce”). By any means like three times in oral, written, or, more recently, electronic form.

The use and status of triple talaq in India have been a subject of controversy and debate. Those questioning the practice have raised issues of justice, gender equality, human rights, and secularism. The debate has involved the Government of India and the Supreme Court of India. And moreover, is connected to the debate about a uniform civil code (Article 44) in India. On 22 August 2017, the Indian Supreme Court deemed instant triple talaq (talaq-e-biddah) unconstitutional.

The starting point against the triple talaq

Three of the five judges in the panel concurred that the practice of triple talaq is unconstitutional. The remaining two declared the practice to be constitutional. India’s Muslim neighbors are among 23 countries that have banned triple talaq already. The Quran established means to avoid hasty divorces. It prescribes two waiting periods of three months before the divorce is final. In order to give the husband time to reconsider his decision. On 30 July 2019, the Parliament of India declared the practice of Triple Talaq illegal. And unconstitutional and made it a punishable act from 1 August 2019. Afterward, which is deemed to be in effect from 19 September 2019.

Legal Ban on Triple Talaq in India:

The Muslim Women (Protection of Rights on Marriage) Act, 2019 passed on 26 July 2019. After a very long discussion and opposition finally got the verdict (the Indian Supreme Court judgment of August 2017 described below) to all women. It made triple talaq illegal in India on 1 August 2019, replacing the triple talaq ordinance promulgated in February 2019. It stipulates that instant triple talaq (talaq-e-biddat) in any form – spoken, written, or by electronic means such as email or SMS – is illegal and void, with up to three years in jail for the husband. Under the new law, an aggrieved woman is entitled to demand maintenance for her dependent children.

The Government first introduced the Act to Parliament in 2017. MPs from Rashtriya Janata Dal, All India Majlis-e-Ittehadul Muslimeen, Biju Janata Dal. Even moreover, All India Anna Dravida Munnetra Kazhagam, Indian National Congress, and All India Muslim League opposed the bill. Several Opposition lawmakers called for it to be sent to a select committee for scrutiny. And Finally, it was passed on 28 December 2017 by the Lok Sabha, or lower house of the Indian Parliament. Such a place where the ruling BJP held the majority of seats.

The Provisions of Triple Talaq in India – ACT Bill passed

In a major political win for the Modi government, the Rajya Sabha, or upper house of Parliament. The place where the ruling NDA did not have a majority. Finally approved the bill (99–84) on 30 July 2019 after a lengthy debate.

The bill followed a 2017 Supreme Court ruling that the practice of instant triple talaq is unconstitutional. And moreover, a divorce pronounced by uttering talaq three times in one sitting is void and illegal.

Muslim triple talaq petitioner Ishrat Jahan welcomed the Bill when it was presented. Also Arif Mohammad Khan welcomed and appreciated the decision taken by Government by Parliament of India.

The triple talaq bill proposed by the previous Modi government lapsed when an election was called. And the Lok Sabha was dissolved before the bill was sent to the Rajya Sabha for approval.

Practice of Triple Talaq:

Triple talaq is a form of divorce that was practiced in Islam. 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 have been present at the time of pronouncement.

After a period of iddat, during which it was ascertained whether the wife is pregnant, the divorce became irrevocable. In the recommended practice, a waiting period was required before each pronouncement of talaq, during which reconciliation was 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 could 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 prepubescent female children. Beyond those restrictions, the children came under the guardianship of the father.

Triple Talaq Tradition:

The practice of talaq-e-biddat is said to have been around since the period of Caliph Umar, more than 1400 years ago. The Supreme Court described it as “manifestly arbitrary” and said that it allows a man to “break down [a] marriage whimsically and capriciously”.

Instant divorce is termed talaq-e-bid’at. A hadith by An-Nasa’i stated that Muhammad had accused a man of mocking the Quran by uttering divorce thrice in one go. Talaq pronounced thrice simultaneously from Muhammad to the first two years of Umar’s reign as caliph was only considered as a single divorce according to Sahih Muslim. The latter however allowed it, upon seeing the people did not observe the iddah, but also had men using such divorce flogged.

The Provisions of Triple Talaq in India

Abu Hanifa and Malik ibn Anas considered it irrevocable despite its illegality. Al-Shafi’i considered it permissible but Ahmad ibn Hanbal considered it to be invalid.

Triple talaq is not mentioned in the Quran. It is also largely disapproved by Muslim legal scholars. Many Islamic nations have barred the practice, including Pakistan and Bangladesh, although it is technically legal in Sunni Islamic jurisprudence. Triple talaq, in Islamic law, is based upon the belief that the husband has the right to reject. Or dismiss his wife with good grounds.

The All India Muslim Personal Law Board (AIMPLB), a non-governmental organization, had told the Supreme Court that women could also pronounce triple talaq. And moreover, could execute nikahnamas that stipulated conditions so that the husbands could not pronounce triple talaq. According to AIMPLB, “Sharia grants right to divorce to husbands because Islam grants men a greater power of decision-making.” 

Background of Triple Talaq:

Muslim family affairs in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937. Moreover, often called the “Muslim Personal Law”). It was 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 sharia is open to interpretation by the ulama (class of Muslim legal scholars). The ulama of Hanafi Sunnis considered 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, Twelver and Musta’li persuasions did not regard it as proper. Scholar Aparna Rao states that, in 2003, there was an active debate among the ulama.

Tradition vs. Changing Social conditions in respect to The Provisions of Triple Talaq in India

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 and the prohibition of triple talaq were not implemented in India.

Judgement of Triple Talaq in India:

The case was called Shayara Bano v. Union of India & Others. The bench that heard the controversial triple talaq case in 2017 was made up of multifaith members. The five judges from five different communities are Chief Justice JS Khehar (a Sikh). And Justices Kurian Joseph (a Christian), RF Nariman (a Parsi). UU Lalit (a Hindu) and Abdul Nazeer (a Muslim).

The Supreme Court examined whether Triple talaq has the protection of the constitution—if this practice is safeguarded by Article 25(1) in the constitution that guarantees all the fundamental right to “profess, practice and propagate religion”. The Court wanted to establish whether or not triple talaq is an essential feature of Islamic belief and practice. 

The Provisions of Triple Talaq in India

In a 397-page ruling, though two judges upheld the validity of instant triple talaq (talaq-e-biddat). Besides the three other judges held that it was unconstitutional, thus barring the practice by a 3–2 majority. One judge argued that instant triple talaq violated Islamic law. 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 instant triple talaq. There would be an injunction against husbands pronouncing instant triple talaq on their wives.

According to The Economist, “Constitutional experts said [the judges] legal reasoning fell short of upholding personal rights over religious laws”, whilst noting “The judgment did not ban other forms of Muslim divorce that favour men, only the instant kind.”

Legislation :

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

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

The Government formulated a bill and introduced it in the Parliament after 100 cases of instant triple talaq in the country since the Supreme Court judgment in August 2017. On 28 December 2017, the Lok Sabha passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017. The bill was planned to make instant triple talaq (talaq-e-biddah) in any form — spoken, in writing, or by electronic means such as email, SMS, and WhatsApp illegal and void, with up to three years in jail for the husband. MPs from RJD, AIMIM, BJD, AIADMK, and AIML opposed the bill. Calling it arbitrary in nature and a faulty proposal. While Congress supported the Bill tabled in the Lok Sabha by Law Minister Ravi Shankar Prasad. 19 amendments were moved in the Lok Sabha but all were rejected.

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018:

On the grounds that the practice of instant triple talaq was continuing unabated despite the SC striking it. The government issued an ordinance to make the practice illegal and void.

The provisions of the ordinance are as follows:

• Instant triple talaq remains cognizable with a maximum of three years imprisonment and a fine.
• The only complaint with the police by the wife or her blood relative will be recognized.
• The offense is non-bailable i.e. only a Magistrate and not the police can grant bail. Bail can be granted only after hearing the wife.
• Custody of the minor children from the marriage will go to the mother.
• The maintenance allowance to the wife is decided by the magistrate.
• The ordinance was cleared by the President on 19 September 2018.

The Muslim Women (Protection of Rights on Marriage) Bill, 2018:

Main article: The Muslim Women (Protection of Rights on Marriage) Bill, 2018

As the triple talaq ordinance of 2018 was to expire on 22 January 2019, the government introduced a fresh bill in the Lok Sabha on 17 December 2018 to replace the ordinance.

The provisions of the bill are as follows:

•All declaration of instant triple talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.

•Instant triple talaq remains cognisable offence with a maximum of three years’ imprisonment and a fine. The fine amount is decided by the magistrate.

•The offence will be cognisable only if information relating to the offence is given by the wife or her blood relative.

•The offence is non-bailable. But there is a provision that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the wife and if the Magistrate is satisfied with reasonable grounds for granting bail.

•The wife is entitled to subsistence allowance. The amount is decided by the magistrate.

•The wife is entitled to seek custody of her minor children from the marriage. The manner of custody will be determined by the Magistrate.

•The offence may be compounded (i.e. stop legal proceedings and settle the dispute) by the Magistrate upon the request of the woman (against whom talaq has been declared).

The bill was passed by Lok Sabha on 27 December 2018. However, the bill remained stuck in the Rajya Sabha due to the opposition’s demand to send it to a select committee.

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019:

As the triple talaq ordinance of 2018 was to expire on 22 January 2019 and also because the triple talaq bill of 2018 could not be passed in the parliament session, the government repromulgated the ordinance on 10 January 2019.  On 12 January 2019, the president of India Ram Nath Kovind approved the ordinance of 2019.

The Muslim Women (Protection of Rights on Marriage) Act, 2019:

Main article: The Muslim Women (Protection of Rights on Marriage) Bill, 2019

The Muslim Women (Protection of Rights on Marriage) Act, 2019 became law on 31 July 2019, replacing the earlier ordinance.