Known to be a form of irrevocable divorce, the Triple Talaq is an Islamic form of divorce which is adhered among observers of the Hanafi Islamic school. This school is mainly associated as one of the principal schools among Sunni Muslims. It is among one of the three forms of divorce as per Islamic laws.
What makes this particular law controversial among Islamic forms of divorce? Ahsan and Hasan, the other two forms of divorce under Islamic law, are reversible in nature, whereas Triple talaq is irreversible.
Triple Talaq was officially prohibited in 2019 and the ordinance of The Muslim Women (Protection of Rights on Marriage) got the President’s approval. Several criticisms were raised against the same, terming the majority’s attempt towards the nullification of the rights of minorities.
About the Triple Talaq
The Triple Talaq, as stated above, is a form of irrevocable and irreversible Islamic divorce that is carried out when a Muslim man legally divorces his spouse by saying the arabic word talaq (divorce) three times. This process of the pronouncement made consecutively is also known as talaq-e-bidat. It can be carried out by written, oral or even electronic means and there is no requirement to cite causes or even for the wife to be present, when the pronouncement takes place. A period of iddat (arabic for time of waiting) must take place before it is confirmed that there are no pregnancy announcements in any near future to be made, before the terms of this divorce are irreversible.
It has unfortunately become common for all three talaq pronouncements to be made consecutively in one sitting, whereas in the future reconciliation was encouraged between each pronouncement’s sitting.
The divorced wife can only retain guardianship of male toddlers as well as any female prepubescent kids that the couple has. Else the rest of the children fall under the guardianship of the father until the wife is remarried to another man.
This divorce practice has been present since the Caliph Umar period in Islam, that is, from 1400 years ago. An-Nasa’i, a famous hadith collector, even stated that the Prophet accused an Islamic follower of making a mockery of the religion when he had pronounced talaq-e-bidat. There is a lot of contention upon this divorce’s practice among hadith interpreters and Islamic scholars.
Some consider it an irrevocable divorce in spite of its invalidity in front of the law. Some considered it invalid altogether as a practice. Triple talaq is mentioned nowhere in the Islamic book of Quran. It is disapproved and banned altogether from several nations despite its technical validity as per Sunni sect’s Islamic jurisprudence.
As per the AIMPLB, an All-India Muslim Personal Law Board which an NGO that specialises in Muslim Personal law, women also could use the triple talaq, execute nikahnamas (Islamic marriage contracts) to disallow their husbands of this practice and use their rights. But according to them, sharia law allows such a divorce right to men since they believe that the religion gives them more importance and power in decision-making.
The first understanding of “Muslim Personal law” is by the 1937 Act of Muslim Personal Law (Shariat) Application. Among one of the first to be executed by the Government of India Act 1935, it grew operational by provincial autonomy’s introduction on a federal level. It was binding upon all Indian Muslims. Sharia law always was and remains open to ulama (a particular Muslim class of legal scholars) interpretation.
Marriage among Indian Muslims is a private affair, unless they decided to register themselves underneath the Special Marriage Act of 1954. Else a civil registration is unnecessary as per civil authorities. Due to such reasons, prohibition of this controversial divorce law was never done so in the country.
As per the Shah Bano case of 1985, some things came under the highlight about Muslim personal law when people were made aware of the fact that maintenance to the wife, is only paid for roughly 90 days by the husband when triple talaq is pronounced until the iddat period.
And as per the provision under the All India Criminal Code’s section 125, “maintenance of wives, children and parents” applied to Shah Bano as well despite what was stated under the Muslim personal law. This was when the recommendation for a uniform civil code was made. Thus, the judgement was made on the side of Shah Bano when she approached the Supreme Court for support after her husband had cut all ties with her. The impact of this case was seen when this section of the Criminal Code was made inapplicable particularly regarding Muslim Women and the Muslim Women’s Act (also known as the Right to Protection on Divorce) was passed in 1986 due to public pressure upon the government.
The MWA has been challenged on violation of the fundamental right to equality in the Daniel Latifi case. And the Supreme Court held that the law was constitutional since it made sure that the wide was taken care of, especially during iddat and for the future since as per the law, even a Muslim-divorced women remains entitled to maintenance until the rest of her life or till she gets remarried.
The Shayara Bano case was the turning point for the triple talaq law in India. This case was made when a 35-year-old Muslim woman named Shayara Bano, challenged the divorce practice and in 2017, the Supreme Court struck down this instant divorce pratcise in a landmark judgement of a 3-2 verdict.
The exact words of the bench were that the practice is “unconstitutional”, “arbitrary” and “not part of Islam.”
The judgement was given by a bench of judges full of multiple faiths to come across as unbiased. It examined whether the law was constitutional, an essential Islamic feature/practice and if it was safeguarded under Article 25(1) which guarantees “the fundamental right to profess, practice and propagate religion.”
Two judges upheld the talaq-e-bidat’s validity but three deemed it unconstitutional. The ruling was 397 pages long and the bend requested the Centre to legislate upon divorce as well as marriage governance among the Indian Muslim community in the next six months. It emphasised upon the formulation of a law with regards to the instant triple talaq. Until then they declared that there is an injunction on the practice.
The government created a bill and introduced in the Lok Sabha on 28th December, 2017 as the Muslim Women Bill (Protection of Rights on Marriage), 2017. It was tabled by Ravi Shankar Prasad, the law minister present at that time. 19 amendments were moved in the Lok Sabha upon this bill but they were all rejected.
Another ordinance was passed in 2018 to support the Supreme Court’s decision upon the illegality of the practise and given Presidential clearance on 19th September in 2018. And upon its expiration date of 22nd January in 2019, the government introduced a new bill to replace it in the Lok Sabha. This was done so on the 17th of December in 2018. It was passed within 10 days but didn’t pass Rajya Sabha upon opposition demands to let the bill be handled by a selected committee.
The ordinance of The Muslim Women (Protection of Rights on Marriage) was repromulgated due to the bill being stuck and the previous ordinance expiration. It was given presidential approval on the 12th of January in 2019.
After another round of discussions and the overwhelming majority won by the ruling in the general elections of 2019, the Muslim Women (Protection of Rights on Marriage Act) was finally passed once again. And it was legislated into law on the 31st of July, 2019 taking the place of the previous ordinance. Some of the provisions under this law have been written as follows.
The bill ensures that any form (spoken, electronic or written) of talaq-e-bidat declaration is illegal in nature, with a promise of around 3 years jail time sentence to the husband. It also made the pronouncement a cognizable offence, that allows warrantless power to a police officer when arresting an offender. The offense was also deemed non-bailable unless heard otherwise by the magistrate.
In order to check misuse, the bill’s declaration included that the complaint must be made by the wife or a blood/marriage relative of hers.
The bill provides reconciliation scope as well without the process of nikah halala if the couple stops the proceedings and decides for dispute settlement. Nikah halala is a process that requires the triple talaq divorced women to marry some other man, consummate that marriage and then seek a divorce before she remarries or reconciles with her previous husband.
As per the bill, the Muslim woman is more than entitled to ask for the custody of any minor children that the couple possess in front of a magistrate. She is also entitled to be granted maintenance for the dependent children as well as herself, under the bill’s provisions. The magistrate is granted the determination power of this maintenance allowance’s amount.
This act was only passed after a long opposition as well as discussion on 26th of July, in 2019.
The practice of triple talaq officially became illegal throughout the country from the 1st of August, 2019. Several people claimed this move a positive one without looking into the nuances of the matter around this bill.
Some opposition statements made by civil society members claimed that the entire bill was a charade and hoped that the President wouldn’t sign the bill into law. A petition was made condemning this move made since they saw the criminalisation of triple talaq to be the government taking legal measures to put Muslim men in jail. All measure made under the progressive name of providing protection to Muslim women.
Since the Supreme Court had already deemed the practice null and void in 2017’s judgement, why was it necessary to give a 3-year jail time sentence to criminalise the customary practice, they asked. Another stated the anxiety of how this was the first time in Indian history the people were seeing punishment under criminal offenses when it comes to the terms of marriage and divorce.
Several MPs from RJD party to the All India Muslim League stood in opposition to this bill’s hasty passing in 2019 as well. They wanted the bill to be scrutinised under a selected committee just as they did in 2017, when it was tabled in the Rajya Sabha.
But some appreciated the passing of this legislation as well. Ishrat Jahan, one of the triple talaq’s petitioners welcomed it as it was presented.
Recently on December 30, 2020 the Supreme Court held their statement that there remains no bar on the granting of any anticipatory bail for crimes committed under the Muslim Women (Protection of Rights on Marriage) Act of 2019. This was upon the provision that the court in question hears the complainant (the Muslim married woman) as well as gives them notice before granting it.
Whether this was a step in the right direction or not remains to be seen as per its future implementation. But the problems upon the implementation of the bill remain the same for the Triple Talaq law. Religious groups consider this as interference into the provisions given to them as religious minorities in the country, the lack of awareness among Muslim women about their legal rights as well as whether they can even get support when they move to the courts when it comes to such a customary procedure, from their loved ones.
It is a law that ensures the end of suffering for women from the Indian Muslim community who’ve been given divorce in such a whimsical way. But, criminalisation of such a customary procedure begs the question of whether there was careful thought put into this legislative move or not. It remains to be seen as to how it will be handled by the masses (especially among the Indian Muslim community) and by the courts alike in the forthcoming years.