Indian Muslims follow Hanafi School of law. This is one of the most followed schools of law which is prevalent in India and the Courts also rely on this School first[1]. Further the practice of Triple Talaq is prevalent where the Hanafi School of Law is followed. It is a practice followed by the Mohammedans where a Muslim man or husband can very simply divorce his wife by uttering ‘talaq’ three times. It is also known as talaq-ul-biddat. In Rashid Ahmed v. Anisha Khatoon[2], this practice of triple talaq took place in the absence of wife but in presence of witnesses. Later on. The talaqnama was executed. The husband and wife lived together with their children who were born to them. Since there was no intermediate marriage hence the bar or the restriction to the marriage was not removed. The Court held that remarriage could not be presumed and the children born after the practise of triple talaq were held to be illegitimate. According to Imam Abu Hanifa, uttering of the term ‘talaq’ three times would amount to final divorce. In case the husband had pronounced the term three times for just emphasizing on the same, then too it would be a divorce and thus nature of the divorce does not change. The essential ingredients of the triple talaq are[3]:
- Three pronouncements made during a single sentence.
- A single pronouncement made in a sentence which indicates an intention to dissolve the marriage. For e.g. “I divorce thee irrevocably”.
With the development of technology and science in the current scenario, it has become easier for the husband to implement talaq-i-biddat i.e. uttering three pronouncements over voice notes or calls or even video calls.
Abolishment of Triple Talaq by India
Through judiciary
Under this issue, one of the landmark judgments was Shayara Banu V Union of India and ors.[4], where the instant use of triple talaq was declared unconstitutional. Even before this judgement, there were many cases whereby judiciary had put its view on this issue. In Sarabhai V Rabia Bai[5], it was held that the practice of triple talaq is improper point of view. In the Shayara Bano case, the question arose regarding the validity of the practice and it was held by the Supreme Court that talaq-ul-biddat is an unconstitutional practice.
Triple Talaq Bill
Recently Lok Sabha passed the triple talaq bill which is The Muslim Women (Protection of Rights on Marriage) Bill, 2019. This bill invalidates the practice of triple talaq and declares the same as illegal with a punishable offence of three years of imprisonment, thereby making it as a historic step taken by the Government of India. It abolishes the it in any form whether spoken or in writing or by any electric means like email, SMS and WhatsApp or in any other manner whatsoever[6].T he Bill further declares talaq-e-biddat a cognizable and non-bailable offence[7]. Under this Bill, the woman is entitled to receive allowance from her husband and the amount shall be decided by the Magistrate of First class[8]. After the Shayara Bano case, where the practice was declared unconstitutional, the Government introduced the bill which was supported as well as opposed. But eventually with a higher number of votes, the Bill got passed.
Analysis of the Bill
Introduction of this Bill is a commendable step taken by the Government for the protection and equality of the Muslim women. The people who opposed claimed that this practice had gained an ancient character as status and therefore it shall be made void or illegal. This claim is simply unreasonable as the ancient character of any practice shall not necessarily make it legal and valid. There are few more reasons as to why this Bill protected women’s rights. they are –
- Supreme Court in the Shayara Bano case stated that triple talaq is very arbitrary in nature.
- Religious matter- many even raised the issue and the provision that under Constitution of India, State cannot interfere in religious matters and every individual is allowed to follow any religion[9]. But it will not protect any religious practice which is affecting the citizens in a negative manner because otherwise, it will violate Article 14 of the Constitution. Article 14[10] particularly overrides the practice, which is generally claimed as a religious practice, because due to this instant triple talaq, women are denied their basic right to equality. Moreover, Article 15 should be focussed upon and be read with Article 25 that no person shall be discriminated on the grounds of religion. Caste, gender etc.
- It is not only declared illegal in India but other countries such as Pakistan, Algeria, Iran, Bangladesh have also banned it. Thus, it was a necessary step taken by India.
- The constitution makers also tried to achieve a uniform code for the entire country and taking this step would definitely help India to attain a uniform code for everyone.
Conclusion
The Bill has been widely appreciated throughout the country though the Government was highly criticized regarding the same but nevertheless, it was an appreciable step taken to protect women’s right. Earlier, a husband could end his marriage according to his own wishes and wants without having any sort of discussion with the wife thereby making the life of women meaningless. One shall not only consider the fact that is has been essential religious practice because it itself possesses a negative character in theoretical aspect and thus it cannot be a law. Moreover, many Islamic nations have banned this practice. Lastly, to conclude, the Government was finally able to bring justice to Muslim women and therefore justified that the concept of gender equality is not just a theoretical aspect.
“The views of the authors are personal“
Reference:
[1]Mohammedan Law- Schools of muslim Law, toppr, https://www.toppr.com/guides/legal-aptitude/family-law-I/mohammedan-law-schools-of-muslim-law/
[2] (1932) 59 IA 21 (Alld).
[3] Aqil Ahmed, Mohammedan Law, 171 (25th edition, Central Law Agency,2015)
[4](2017) 9 SCC 1
[5](1906) 30 Bom 537
[6]Sangita Nair, Triple Talaq bill gets the Presidents Assent, Jagran Josh (June,2019), https://www.jagranjosh.com/current-affairs/triple-talaq-bill-becomes-a-law-president-ram-nath-kovind-gives-assent-1564634176-1
[7]A cognizable offence is one for which a police officer may arrest an accused person without warrant
[8]Triple Talaq Bill, Study dhaba, https://www.studydhaba.com/triple-talaq-bill-pdf/
[9] Article 25
[10]Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
