ABOLITION OF TRIPLE TALAQ: WHY A LAW WAS REQUIRED

July 31, 2019, will be remembered as the day when the democratic fabric of India was upheld and reaffirmed. After receiving the President of India’s assent, the Muslim women community were afforded protection from the incivility and regressive nature of talaq-e-biddat, also known as ‘instant triple talaq’ under the Muslim Women (Protection of Rights on Marriage) Act of 2019.

What is talaq-e-biddat? It is a type of divorce practiced under the Hanafi Sunni school of jurisprudence, where the husband can divorce his wife by communicating ‘talaq’ three times in one sitting. On completion of this communication, the marital tie is broken instantly and irrevocably. With the utterance of those words, the woman loses all her rights to the household and is rendered homeless. The absurdity and inherent inequality of practicing instant talaq is hidden from no one. The government is rightly being credited for not only addressing a topic as sensitive as personal laws for the Muslim community, but also for ensuring an effective redressal to a regressive practise. Unfortunately, the issue has taken a political hue, with some clerics seeing the passage of the Act not as a social issue and a fight for gender equality but as undue interference in the religious affairs of the Muslims. The hypocrisy of certain lawmakers also stood out. Mehbooba Mufti, a Muslim woman politician and the leader of a regional political party based in Kashmir, directed her party members to stage a walk out in the Upper House (RajyaSabha) when voting on the Bill took place. She later tweeted “…abstention is essentially a no vote.” Instead of registering dissent against the proposed bill in the parliament by voting against it, Mehbooba Mufti’s People’s Democratic Party (PDP) adopted the political gimmick of staging a walk out. This was political duplicity and subterfuge of an exceptionally high order, even for a regional party not known for political propriety.

Before India’s Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act of 2019, pronouncing ‘talaq’ thrice in one sitting had the effect of immediate annulment of the marriage. This was in stark contrast to the practice of ‘talaq-ul-sunnat’ which requires pronouncing ‘talaq’ three times over a three month period. The three-month period of ‘iddat’ would commence after ‘talaq’ was pronounced for the first time. The marriage stood annulled only if ‘talaq’ was pronounced for the third time at the end of the said ‘iddat’ period. The rationale behind giving three months ‘iddat’ period was to safeguard the woman by providing a cushion against decisions taken on impulse, while also providing time for negotiation or reconciliation. An additional reason was to ensure that the woman is not pregnant as pregnancy could directly or indirectly affect the decision of divorce, issue of maintenance or custody. Instant triple talaq, on the other hand, instantly leaves the wife and in most cases the children, in a miserable and helpless situation.

Recent years have witnessed the growing popularity of social media as a means of communication. This became a bane to the victims of instant triple talaq as the husbands started resorting to means such as Messenger, WhatsApp, fax, email etc to seek divorce by sending ‘talaq’ thrice by message to the wife. It is regrettable that Muslim clerics not only validated the divorce given under instant triple talaq, but went on to validate even the ones given via text messages. In one incident, a Muslim woman along with her young children were thrown out of their residence by her husband in Tamil Nadu. When the wife protested, the husband simply uttered ‘talaq’ three times, and the hapless woman, along with her children were rendered homeless with limited recourse to justice. In another such incident, a Muslim woman was divorced through instant triple talaq to make way for a younger bride who could pay more dowry. Incidents like these not only reflect on the regressive nature of this obnoxious practice, but also denies to Muslim women, the rights guaranteed to all citizens in the Constitution of India.

There is no gainsaying the fact that under the Constitution of India, personal laws, i.e.laws dealing with marriage, inheritance, etc are entitled to certain latitude in practice. However, the same document as reflective of the collective will of the people and spirit of the nation becomes the guardian of equality. On August 22, 2017, Supreme Court in the Shayara Bano judgment declared the practice of instant triple talaq as violative of the Constitutional spirit and the fundamental right of equality under Article 14. Both the parties to the case agreed that the practice of ‘talaq-e-biddat’ is “bad in theology, but good in law.” When a phenomenon is governed by personal laws in consonance with religious doctrines, it is absurd to argue in favour of its validity when the very same religious doctrines consider it ‘bad’. When the believers of the same faith consider an otherwise socially repulsive practice as a sin, in broader framework continuing it is nothing short of violating both, constitutional and societal morality. The court while extensively examining the instant and irrevocable nature of talaq-e-biddat held that the arbitrariness of the practice where a Muslim man can “capriciously and whimsically” break a marital tie without “any attempt at reconciliation”, is violating right to equality and thus, is invalid in the eyes of the law.

The inhumane version of instant triple talaq has already been outlawed either directly or indirectly in many Islamic countries. In Algeria, Iraq, Libya, Kuwait, Morocco, Sudan, Tunisia, UAE and Yemen, where the official religion is Islam, there are effective laws in place wherein divorce under ‘talaq-e-biddat’ is invalid. Even secular states with majority sunni population such as Egypt, Jordan, Lebanon and Syria have express provisions for protecting Muslim woman from the incivility of instant triple talaq. In Southeast Asia, Indonesia, a country with six official religions including Islam, expressly mentions that divorce will be declared final only by the court. Malaysia, with Islam as its official religion, has written laws regulating the divorce under Islamic Family Law Act 1984. The said Act does not recognise instant triple talaq. The law in Philippines, while acknowledging the importance of reconciliation during the ‘iddat’ period, outlawed practice of instant triple talaq. Theocratic states of Bangladesh and Pakistan with Islam as the official religion have written laws detailing the procedure to be followed for a valid divorce.

It must be noted that the practice of ‘talaq-e-biddat’ despite being declared as unconstitutional by the Supreme Court of India in August 2017, continued unabated across the country. There was no deterrence attached to the unconstitutionality of the practice, which gave the Muslim male the leeway to continue with the practice with impunity. In order to protect Muslim women in India from this Damocles sword of harassment and summary abandonment, and to ensure deterrence against resorting to the practice of instant triple talaq, The Muslim Women (Protection of Rights on Marriage) Act of 2019, made the practice a criminal offence. Use of ‘talaq-e-biddat’ would now attract imprisonment which could extend to three years, a fine which would be decided by the court or both.

This move of providing a strong safeguard to victimised Muslim women, has raised the hackles of some in the Muslim clergy as also of some law makers, who are against the criminalisation of the practice. Some have viewed this legislation to protect Muslim women as anti-Islam and an assault on their religious practises, as guaranteed in Article 25 of the Constitution. This reasoning has been struck down by the Supreme Court of India, which had declared the practice of talaq-e-biddat or triple talaq as illegal, and held it to be not an essential religious practice.

A major inhumane fallout of the regressive practice of triple talaq is the resort to Nikah Halala which a divorced Muslim woman has to follow for reconciliation. Nikah Halala is a regressive custom which again discriminates against the female. If a divorced woman is to be reconciled with her former husband, she has to go through Nikah Halala. This means that she has to first marry another man and consummate the marriage with him. There is a waiting period up to the woman’s menses, after which the second husband gives a divorce, enabling her to marry her first husband. Victims of triple talaq have often been forced to undergo Nikah Halala, when they have been divorced by their husband in a moment of rage and later, the husband realising his error, wants her back. This has also become a tool for exploiting Muslim women, besides ridiculing her status as of being of little consequence. This was another reason why deterrence had to be built into the Muslim Women (Protection of Rights on Marriage) Act of 2019.

An instance reported in July 2018 revealed the horrific reality behind this practice. A woman was divorced multiple times and forced to consummate her marriage in the name of Nikah Halala with multiple men including her father-in-law and brother-in-law. On protesting against this nauseating behaviour, she was threatened not only to be declared as an outcast, but also threatened with her life. It is rumoured that Meena Kumari, the famous Bollywood actress of 1950s was also a victim of instant triple talaq and had to undergo Nikah Halala with the husband’s best friend. When asked about the incident, it is claimed that she said, “If in the name of religion, I have to handover my body to another man, then is there a difference between me and a sex worker?”. In the absence of any recorded evidence, it is possible that this event never took place. On the other hand, it is possible that it did, but considering the state of society in those times, it was kept under wraps. But regardless of the veracity or otherwise of the incident, such cruelty is not an uncommon occurrence and is reflective of the plight of Muslim women in India. That is why it becomes essential to see such practices as criminal offences and not just social evils. It ensures that a man respects the individuality of his wife and does not consider her to be an object that can be ridiculed or toyed around with as per his whims and fancies. It is important for men to realise that mere payment of a fine will not undo the agony a woman has to go through when she is left abandoned after a “manifestly arbitrary” pronunciation of ‘talaq’.

Talaq-ul-sunnat, as opposed to talaq-e-biddat gives the aggrieved Muslim woman time and space for reconciliation and negotiating the terms of divorce, including the maintenance. However, the instant and irrevocable nature of talaq-e-biddat immediately renders the Muslim woman helpless. In the backdrop of this reality, the criminalisation of instant triple talaq, while respecting the integrity of a woman, empowers her by providing the time and space to negotiate the terms on which to end the marriage. It is this criminalisation that fulfils the sociological goal of protecting and empowering the Muslim women community. Further, the law balances the rights of both, the aggrieved and the aggressor. Where the Muslim husband has the right to avail bail from a magistrate, the law also makes sure that the Muslim woman herself can file a complaint as can anybody related to her by blood or marriage. The law also ensures that upon the request of the aggrieved woman to a magistrate, the legal proceedings will be stopped and the dispute will be settled outside the set legal framework. The law has reiterated the right of the Muslim woman to seek subsistence allowance and custody of her children.

A similar rationale has been followed for criminalising another deplorable practice – that of dowry harassment. Over the years, thousands of women have been exploited, tortured and harassed on the pretext of dowry. In many reported cases the wife was tortured to death. It was the criminalisation of the act that deterred men and induced a behavioural change. It is nobody’s case that a legal framework facilitated a complete end to the practice of dowry harassment, but it did assist in vastly reducing the number of cases. Similarly, the triple talaq law, while creating a deterrence amongst Muslim men, will provide a legal recourse to safeguard the rights and dignity of Muslim women. A mere critique that law can be misused holds no ground when it is serving such a noble purpose.

Another critique that a jailed man will not be able to support and provide for the wife is nothing short of an absurdity. It is the irrational and unsupportive behaviour of the husband which has landed him in jail. Further, it is the responsibility of the courts to put in place a practical scheme for providing support to the Muslim woman when the husband is in jail. This is a responsibility that courts have been fulfilling since their inception not only in cases concerning rights of divorced woman, but every case involving right of the aggrieved party to receive compensation.

The exact number of triple talaq victims might not be available in the official records, but according to one of the petitioners in the Shayara Bano case, Bhartiya Muslim Mahila Andolan (BMMA), the number of reported cases is going down. Further, in an interview with a leading newspaper, the BMMA said that there has been a behavioural change where more men are now approaching the organisation for marriage counselling, where otherwise they could have resorted to the easier route of ‘triple talaq’. The Mumbai chapter of BMMA alone had received 31 complaints of oral triple talaq in 2016. After making it a criminal offence, the number of complaints went down to 6 in 2017 and 2 in 2018.

The law may be challenged for judicial scrutiny on the grounds of criminalisation. However, it is this deterrence created from imprisonment that has given hope and confidence to the Muslim women. A practice “bad in theology, but good in law” has been declared unconstitutional by the Supreme Court of the country. The impetus is now on Parliament as the representative of the collective conscience of the people, to motivate behavioural change in compliance with the legal provision while making sure the infrastructure to facilitate the said change is in place. The Muslim Women (Protection of Rights on Marriage) Act of 2019 is the manifestation of this infrastructure and conscience.

In Shayara Bano judgment, Supreme Court acknowledged that “…90 percent of the Sunni Muslims in India, belong to the Hanafi school, and that they have been adopting ‘talaq-e-biddat’ as a valid form of divorce, is also not a matter of dispute”. In a country where presumably 90 percent from a sub-community of Muslims constituting nearly 14 crore of the total population believe in the validity of instant triple talaq and regard it as an available option, it is but democratic to protect women from it, while also ensuring effective deterrence against such an abhorrent practice. The evils of patriarchy have always determined the contours of personal laws in India. However, over the decades, these evils have been reformed and codification has played an important role in this regard. It is important to consider that when the uncivil and barbaric nature of Muslim criminal law has been acknowledged and made inapplicable, the community itself should step up and reform the regressive nature of personal laws under Shariat. It is not to argue that the journey to empower Muslim women stops at criminalising instant triple talaq. There are many creases to be ironed out, but a strong policy action like this must not be downplayed. In the twenty-first century, it is unacceptable that a Muslim woman’s constitutional right to equality be held ransom to antediluvian and patriarchal personal laws. An inherently patriarchal practice cannot and should not be sustained in a world progressing towards gender equality.

References

(i) ShayaraBano vs. Union of India & Others (2017) 9 SCC 1, para 15.
(ii) @MehboobaMufti, 9:10 PM, Jul 30, 2019, available at https://twitter.com/MehboobaMufti/status/1156228065510318081?s=20
(iii) Supra note i, para 127.
(iv) Ibid, para 57.
(v) Ibid, para 28.
(vi) QaziFaraz Ahmad, July 16, 2018, “Woman Forced to Sleep With Father-in-law Under NikahHalala, Faces Death Threats for Speaking Out”, News18, available at https://www.news18.com/news/india/woman-forced-to-sleep-with-father-in-law-under-nikah-halala-faces-death-threats-for-speaking-out-1813621.html.
(vii) “Flashback: Did you know that MeenaKumari was also a victim of ‘triple talaq’?”, DNA India, Aug 22, 2017, available at https://www.dnaindia.com/bollywood/report-flashback-did-you-know-that-meena-kumari-was-also-a-victim-of-triple-talaq-2538427.
(viii) Zeeshan Shaikh, “’After ordinance, there has been a drop in number of women reporting triple talaq’: NoorjehanSafiaNiaz, co-founder of the Bhartiya Muslim MahilaAndolan, speaks to The Indian Express about the efficacy of the Muslim Women (Protection of Rights on Marriage) Bill, 2019 and the organisation’s fight to bring in a comprehensive law on Muslim marriage”, The Indian Express, June 17, 2019, available at https://indianexpress.com/article/india/triple-talaq-ordinance-supreme-ocurt-bhartiya-muslim-mahila-andolan-5783641/.
(ix) Supra note i, para 144.

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