Triple Talaq

Triple Talaq

This article deals with ‘ Triple Talaq .’ This is part of our series on ‘Society’ which is important pillar of GS-1 syllabus . For more articles , you can click here .

Introduction

  • In Shayara Bano v. Union of India (‘Triple Talaq case’) , Supreme Court declared Triple Talaq as un-Islamic and “arbitrary”  .
  • Triple Talaq (also known as Talaq-e-Bidat) is a practice in which  a man pronounces ‘talaq’ thrice in a sitting, or through phone, or writes in a talaqnama or a text message and the divorce is considered immediate and irrevocable, even if the man later wishes to reconciliate.
  • The only way for the couple to go back to living together is through a Nikah Halala, and then return to her husband. Nikah Halala refers to practice under which a divorced Muslim woman has to marry another man and consummate the marriage and get a divorce. Only then can she be eligible to remarry her former husband.

Why Triple Talaq should be banned ?

  • Triple Talaq is not Essential Practice of Islam : It is not an Islamic Practice but  social practice of Arab Society which has gradually crept into Islam .  
  • Egypt, Iraq, Jordan, Kuwait, Morocco,  Philippines, Sudan, Syria,  UAE and Yemen have made concept of Triple Talaq unconstitutional & India must follow the suit .
  • It infringes Right to Equality and Right to Life of women.
  • 2012 Committee on the Status of Women  recommended  to ban Triple Talaq and polygamy.

Arguments against Supreme Court’s interference in Triple Talaq

  • In Narasu Appa Mali (1952) CaseSupreme Court held that,  personal laws are not Laws for purpose of Article 13 . Hence, they can’t be scrutinised for violation of fundamental rights violations .
  • Religious practices are safeguarded under Article 25 of the Constitution .

Muslim Women (Protection of Rights on Marriage) Act

Timeline

Triple Talaq
1986 : Shah Bano Case Shah Bano Case  was to decide whether the relief extended to divorced women under CrPC, 1973, applied to Muslims too. Constitution bench decided that it extended to Muslim women as well.  
1986   Shah Bano Act /  Muslim Women (Protection of Rights on Divorce) Act was enacted by the Rajiv Gandhi government to overturned  Supreme Court order  . It held that divorced women was entitled to maintenance for period of iddat (3 lunar cycles / menstruations) only .  
2001 Daniel Latifi Case – Maintenance for  period of (only) iddat was challenged for violating Article 14 & 21 . Supreme Court held that this doesn’t violate Article 14 & 21 as intelligible difference can be made in this case.  
2017 Shyara Bano Case : Declared Triple Talaq to be unconstitutional .  
2019 Government  introduced Muslim Women (Protection of Rights on Marriage) Act .

Provisions of Muslim Women (Protection of Rights on Marriage)  Act

  • Triple Talaq will not nullify the marriage .
  • Act makes Triple Talaq a criminal offence with imprisonment of upto 3 years .
  • Act shall be cognisable and non-bailable (i.e. police officer can arrest  without a warrant.)
  • Principle of Locus Standii don’t apply : Complainant can be any body – not just wife.
  • Act also provides provision of reconciliation without undergoing the process of Nikah Halala if the two sides agree to stop legal proceedings and settle the dispute.
  • 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 determined by the Magistrate.

Main issues with bill

  • Act converts a civil wrong into a criminal wrong as marriage is a civil contract .
  • Against Doctrine of Proportionality and hence infringes Right to Equality . Under IPC, 3 year jail term is for   crimes like  rioting.   
  • Against principles of natural justice :  Triple Talaq don’t nullify marriage . Hence, when Crime is not committed , how can person be punished for act of crime .
  • Issue of implementation: The is difficult to implement, especially in cases of oral triple divorce given by husbands when no one other than the couple was present
  • Rise in divorces and abandonment: Issues remain as no husband on his return from jail is likely to retain the wife on whose complaint he had gone to prison.

Points in favour of Criminalisation of Triple Talaq

  • Triple Talaq has never been sanctioned even in Islamic scripture . In Pakistan and Bangladesh too , which are Islamic countries, Triple Talaq is criminal offence (with imprisonment upto 1 year ) .
  • Government Intent is not to punish . Government argues that if nobody gives Triple Talaq, nobody gets punished.
  • SC judgment of 2017 had recognised the discriminatory nature of Triple Talaq. The Muslim Women (Protection of Rights on Marriage) Act 2019 offers Muslim women recourse and access to protection of the law from the practice of arbitrary instant divorce.

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