Triple Talaq and Muslim Women’s Rights

ABSTRACT

Triple Talaq is an inhumane practice that undermines women’s rights and dignity. Article 25 of the Indian Constitution guarantees the freedom of conscience as well as the freedom to practice, profess, and propagate one’s religion. Rituals are guaranteed protection under Articles 25 and 26 religious’ rituals, observances, ceremonies, forms of worship, etc. However, in order for such behaviours to be regarded as a component of the religion in question, they must be viewed as such by the religion itself as a necessary and vital component. For Muslim women, talaq-e-biddat has resulted in extreme injustice and oppression. A marriage may end abruptly as a result of the practice, at the discretion of the husband. As a result of the courts’ repeated declarations that the practice is improper under specific conditions, the judicial trend has shifted against it. Muslim women have been subjected to legal discrimination in our nation. The Muslim Personal Law (Shariat) Application Act, 1937, which remains quiet on triple talaq, nikah halala, and polygamy, however applies to Muslim women. It is necessary to put Muslim women on an equal footing with Christian and Hindu sisters who are protected by the law. It’s not like women who identify as Hindu or Christian have achieved equality in our patriarchal society. They do not, however, experience the same level of legal discrimination as Muslim women. The government has a fundamental duty to provide Muslim women with access to justice. Every religion follows a distinct route that ultimately leads to the same place. All that matters along the way is everyone’s welfare, including their happiness. This essay examines the numerous talaqs that Muslims use to grant divorce. In addition, it provides a critical analysis of the triple talaq, the ways in which it condemns women to poverty, and the necessity to end this discriminatory practice.

KEYWORDS: Women’s Rights, Muslim Personal Law, Triple Talaq, Indian Constitution maintenance.

INTRODUCTION

According to a combined interpretation of Sections 3 and 4 of the Triple Talaq Bill[1], the husband may spend a maximum of three years in prison for declaring talaq, which is unlawful and illegal. Its nugatory declaration renders talaq-e-biddat ineffective in Section 3, therefore how can it be considered a cognizable and non-bailable offence? Given that the Supreme Court had specifically ruled Triple Talaq to be void in its entirety, this demonstrates how the Bill’s line of reasoning contradicts the spirit of the court’s ruling. Totally opposite or contradictory statements are asserted to be true simultaneously in the fallacy of consistency[2]. The statute “Actus non facit reum nisi mens sit rea,” [3]which states that an act does not constitute guilt unless the mind is guilty, is directly opposed to the principles of criminal law, which the bill runs counter to. This bill makes it clear that it is illegal to immediately perform triple talaq without considering the husband’s motivation. The Quran has always supported intentional divorce rather than a careless, rash declaration of talaq, so triple talaq is not legally sanctioned by the Quran itself. When a husband performs triple talaq, he utters the word without ever pausing, making it difficult for the husband to have the necessary intention at the time of declaring such a divorce. The provisions of the Bill regarding child custody and subsistence allowance are found in Sections 5 and 6, which are among its most contradictory areas. Muslim law grants custody of a child’s male and female offspring to the mother. Unless she marries a second husband, in which case custody goes to the father, the right endures even after she and the child’s father get divorced. The Mohammedan Law’s guiding principles, however, cannot be separated from the Guardians and Wards Act, 18904’s provisions, which give the court the authority to order the return of a child to a guardian when it deems doing so to be in the best interests of the ward.[4]But this Bill has forced the mother to have exclusive custody of the child, disregarding whether or not the child’s welfare would be served.[5]

WHAT IS TRIPLE TALAQ?

The Islamic term for divorce, meaning the breakup of a marriage, is talaq. Triple talaq, sometimes referred to as talq-ul-biddat, is the practice of delivering talaq by repeating the words three times without interruption. Neither the Quran nor the prophet Muhammad (PBUH) endorse this practice. It is an immediate and permanent kind of talaq with immediate effect and without using sharia courts, friends, or family for mediation or arbitration. The media has documented other incidents nationwide when Muslim husbands instantly declared their wives to be Triple Talaq on the basis of extremely weak justifications, such as gaining weight, failing to prepare food correctly, or rising late in the morning. Many more incidences that had a negative impact on Muslim women’s life but were never reported also existed. This unfair practice ignores the complexities of human nature, which are characterized by impulsive, intense emotional outbursts in the heat of the moment and, occasionally, an easy way out to satisfy their desire for polygamy. Lately, there have been an increasing number of cases where it has also acquired a tech-savvy aspect by utilizing electronic media. Therefore, the Supreme Court has determined that this chauvinistic and paternalistic behaviour is ultra vires, as it not only violates the right to equality[6] but also discriminates against women. As a result, it is impossible to credibly defend the religion’s continued practice, profession, and spread based only on the claim that the ruling violates its customs. We have seriously violated our fundamental rights when we allow Muslim males to unilaterally and absolutely deprive women of all protection, economic security, marital status, and other rights within minutes through the practice of Triple Talaq, which is a part of Muslim Personal Laws[7]. The question is why this greatest democracy in the world, which guarantees everyone access to justice, conceals itself behind the massive walls of Article 25 and ignores the impoverished women[8]. It also raises questions about why individual laws supersede the spirit of the constitution, which guarantees justice to everyone.

STATUS OF MUSLIM WOMEN UNDER TRIPLE TALAQ

According to the Act[9], a Muslim husband’s declaration of talaq against his spouse is null and void. A unilateral breach of contract by the husband could have been resolved by a simple legal declaration, had a Muslim marriage been regarded as a contract. But it’s not that easy to solve. In society, marriage holds a sacred status and is seen as such, despite being a social contract. Triple talaq has been a common and acceptable practice in Muslim society for generations, and it has been profoundly embedded in their way of thinking. Therefore, the circumstances do not instantly change merely because it is declared to be void by law. If a woman has accepted the notion of a triple pronouncement divorce, she can believe that it haram to live with her husband despite it not being recognized as divorce by the law[10].It is also possible for society to maintain its acceptance of instant triple talaq. This is the rationale behind the widespread belief that changes to personal laws should originate from within the religious community rather than being imposed by the law. According to a number of studies[11], women from marginalized groups negotiate for their rights through unofficial community-based channels rather than going through conventional legal processes. Due to a widespread dread among the impoverished of using courts and police stations, women find that religion-based dispute resolution forums like darulqazas are more accessible than these official venues. Another argument made is that rather than enforcing triple talaq, the Act might as well encourage husbands to voluntarily desert their spouse. Her family relations might also be hesitant to accept her back due to her disempowered status because she is unable to be married again. It wouldn’t be unreasonable to argue that the law’s failure to conform to societal norms would result in Muslim women becoming destitute; after all, the legislation’s original goal was to defend their rights.

MAINTENANCE AND CUSTODY OF MUSLIM WOMEN

According to Section 125[12] of the CrPC, a wife (including a divorced wife up until her subsequent marriage) may file for maintenance against her husband only in the event that the husband, who possesses sufficient resources, neglects or declines to provide for her. Therefore, the prerequisites for claiming maintenance are neglect and refusal. If the Muslim husband is imprisoned, how will he support his wife? For the sole reason that he is imprisoned, the husband in this instance is completely unable to support his wife. The husbands in this instance are not purposefully ignoring their spouses. The husband’s ability to earn a living has been taken away from him by the government; in that case, how does this meet the requirement that he overlook his wife’s needs even though he has enough money? If a Muslim woman gets divorced and her husband fails to support her, she may receive further protections under the Muslim Women (Protection of Rights on Divorce) Act, 1986, from the Wakf Board[13]. However, the clause only applies to Muslim women who have divorced. In this particular case, women’s marital status is not “divorced.”  Unlike previous legislation dealing to women’s rights, it simply guarantees a “subsistence allowance” rather than “maintenance.” If subsistence allowance is the basic minimum needed to cover daily expenses, maintenance means the amount of money needed to continue living in accordance with one’s status in society. The clause does not, however, “without prejudice to the generality of provisions contained in any other law,” therefore the wife is still able to start the maintenance procedures. The subject of criminalization under this Act raises additional questions. Since the Act forbids the utterance of triple talaq and, concurrently, grants a woman the right to subsistence allowance in the event that her husband is denounced and imprisoned, where does the suggested stipend originate from?

In the case that her husband issues a talaq, a married Muslim woman is entitled to custody of her young children, according to Section 6[14] of the Act. As a matter of law, she is therefore entitled to such custody. The first query that comes up is whether or not a child custody clause is necessary while a marriage is still going strong and no divorce has occurred.

LIABILITY LAW AND REGULATIONS

The 2019 Muslim Women (Protection of Marriage Rights) Act nullifies and makes illegal the three instant divorces issued under the imposition of talaq[15]. If his husband used instant triple talaq, he might be fined and sentenced to up to three years in prison. The Muslim wife who was subjected to the Talaq punishment was also required to pay alimony to her husband and was granted custody of the children. Muslim women are now shielded from the strange and irrational testimony of Triple Talaq by law. Additionally, the law forbids husbands from divorcing their wives in this way. The law has made life better for Muslim women and will help them overcome discrimination from society and domestic abuse[16]. Women gained respect in society and gained power as a result of the Triple Talaq being abolished. The government protected the constitutional, fundamental, and democratic rights of Muslim women in the country and enhanced their “self-reliance, self-respect, and self-confidence” by enacting legislation that outlawed the Triple Talaq and dismissed cases. 82% in the year after the law’s enactment. Regarding religious practice, the courts have determined in numerous decisions that the only aspects of a religion that require legal protection are those aspects of that faith. State protection of non-essential religious practices, in other words, would not qualify as a basic right and would be at the state’s discretion. There are no regional, religious, caste, or creed-based differences in destitution, vagrancy, or the trafficking of neglected women. It is unethical and unconstitutional to respond to a woman’s basic right to life based on her religion, since this issue is connected to the maintenance of women. India is a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[17], according which the practice of triple talaq is a flagrant violation of gender discrimination. In addition to granting women equality, the Indian Constitution gives the State the authority to enact laws that promote discrimination against men in Favor of women. India has committed to securing the equal rights of women by ratifying a number of international agreements and human rights instruments. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which was ratified in 1993, is a crucial one.

SUPREME COURT VERDICTS ON TRIPLE TALAQ

The Supreme Court determined that the aforementioned divorce custom was obviously arbitrary, meaning that a Muslim husband could arbitrarily and irrationally dissolve a marriage without making an effort to make amends in order to keep the union together.
In a majority ruling on August 22, 2017, the Supreme Court declared that instant Triple Talaq violates Article 14 of the Constitution, thus invalidating the divorce practice. The Supreme Court upheld the Government’s argument that talaqe-biddat is against gender equity mandated by the Constitution, as well as against constitutional morality, women’s dignity, and equity. This was one of the arguments put forth by the attorneys in the most recent Shayara Bano case[18]: triple talaq is a type of divorce in which the husband divorces his wife all at once, making it difficult for the husband to have the necessary intention at the time of declaring such a divorce. Additionally, because the Quran has always supported intentional divorce rather than a careless, rash declaration of talaq, triple talaq is not legally sanctioned by the Quran itself. They specifically state that a legal divorce can only be successful when it is pronounced in plain words indicating the intention to dissolve the marriage when it comes to the divorce laws of other nations, such as Libya ^[19]or Indonesia. It will not lead to the breakdown of marriage through symbolic or metaphorical language.

• In 2015 only, the SC registered a suo motu public interest litigation (PIL) petition titled ‘In Re: Muslim Women’s Quest for Equality’ to examine if arbitrary divorce, polygamy and nikah halala violate women’s dignity. However, the then-Central government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 in what was perceived as an attempt to lessen the impact of the Shah Bano Case ruling.
• The Supreme Court reaffirmed the legitimacy of the Shah Bano case in the Danial Latifi & Anr v. Union of India case in 2001 judgment defending the rights of Muslim women. In June of 2016, the Supreme Court made the decision to investigate whether Islamic rules pertaining to marriage and inheritance infringed against women’s rights.

SUGGESTED SCHEMES FOR TRIPLE TALAQ

The time has come for major steps to be taken to bring about reform and change in the Muslim Personal Law in India. In order to accomplish these following steps must be taken: –

• CODIFICATION OF THE MUSLIM PERSONAL LAW: Muslim law must be codified, and this is an urgent task that needs to be addressed seriously by academics, legal professionals, and liberal ulema. Common denominator laws must be gender-just laws. Muslim men’s organizations need to advocate with Muslim women for shift.
• ENCOURAGING THE IDEA OF A UNIFORM CIVIL CODE: Resolving tensions rooted in beliefs and customs will aid in the process of national integration. The country’s unity and integrity will be strengthened, and it will aid in the eradication of numerous bad, unjust, and unreasonable activities that are common throughout the communities. Any civilized society requires all human transactions to adhere to these rules.
• INTRODUCTION OF GENDER JUST PERSONAL LAWS: Because the majority of personal laws give women a secondary status by reflecting the hierarchical conceptions of society. Therefore, gender-neutral personal laws are what we need. In turn, the gender just code must be consistent throughout all communities, making it uniform.
• PRIORITISATION OF GENDER EQUALITY: The equality of men and women with respect to their fundamental rights must take precedence over conservative interpretations by religious professors. Saying a firm no to polygamy and triple talaq is one way to achieve this. The backdrop of patriarchy must be considered while analysing the personal law issue, and laws that place women in a subordinate position must be changed.
• SUPPORTING ALL REFORM MOVEMENTS THAT CHALLENGE PATRIARCHY: Every citizen should join hands with the government to eradicate the injustice against women which will lead to the overall growth and development of entire nation. We have to try to lead traditions out of darkness into light and not allow them to lead us into darkness.

CONCLUSION

The Indian judiciary has traditionally taken a critical stance toward triple talaq. But it was imperative that this strategy be included in the text of the statute. A step in the right direction is the Muslim Women (Protection of Rights on Marriage) Bill, 2017. The goal of the bill is to protect Muslim women from ongoing harassment and to bring justice to them. In its current form, the Bill not only declares triple talaq to be void and illegal, but it also makes saying it a crime. It appears improbable that it would succeed in accomplishing its dual goals of safeguarding Muslim women’s rights and outlawing the practice of triple talaq. The first section of the bill, which declares triple talaq to be unlawful, is in line with the Supreme Court’s Shayara Bano decision. But the laws that punish the practice harshly are probably going to have the opposite effect of what is intended since they will make it harder to disclose such events and lessen the likelihood of reconciliation. Furthermore, the Shayara Bano Court never advocated making the proclamation of triple talaq a crime. By criminalizing such behaviour, the state is likely to trespass into the private lives of its people. The purpose of the Bill should have been to make the husband accountable to the marriage and continue to maintain his wife and their children – jailing the husband accomplishes the diametrically opposite goal.

Reference(s):

[1] (The Muslim Women (Protection of Rights on Marriage) Bill, Section 4, No. 247, Acts of Parliament (2017) n.d.)

[2] (Stephen Francis Barker, The Elements Of Logic, (Mcgraw-Hill, 5th Ed.1989), 157 n.d.)

[3] (Section 84 of the Indian Penal Code, 1860 (IPC) n.d.)

[4] (The Guardians and Wards Act, 1890, Section 17, No.8, Legislative Council (1890) n.d.)

[5] (SIR DINSHAW FARDUNJI MULLA, PRINCIPLES OF MAHOMEDAN LAW, (LexisNexis Butterworth, 20th edition 2016), 434 n.d.)

[6] (Article 14 (14th Amendment) n.d.)

[7] (Family Law, Article 31, No. 10(1984) n.d.)

[8] (Article 25 of Indian Constitution n.d.)

[9] (Section 3(1) in The Muslim Women (Protection Of Rights On Divorce) Act, 1986 n.d.)

[10] (Law of Marriage, Article 38, No.1(1974) n.d.)

[11](“The Politics Behind Criminalising Triple Talaq”, 53 Economic & Political Weekly 13 (2018). n.d.)

[12] (The Code of Criminal Procedure, Section 125 No.2, Acts of Parliament (1973) n.d.)

[13] (The Muslim Women (Protection of Rights on Divorce) Act, Section 4, No.25, Acts of Parliament (1986) n.d.)

[14] (The Muslim Women (protection of Rights on Marriage) Act, 2019 n.d.)

[15] (The Muslim Women (Protection of Rights on Divorce) Act, Section 4, No.25, Acts of Parliament (1986) n.d.)

[16] (AIR 1979 SC 362 n.d.)

[17] ((1886) ILR 8 All 149 2004)

[18] (Shayara Bano and Ors.v Union of India (UOI) and Ors, AIR 2017 SC 4609 n.d.)

[19] (Family Law, Article 31, No. 10(1984) n.d.)