Triple Talaq and the Rights of Muslim Women

 

Dr. Kalindri

Assistant Professor, Law, University of Lucknow, Lucknow

*Corresponding Author E-mail: lukalindri2010@gmail. com

 

ABSTRACT:

Talaq is an Arabic text in Muslim Laws, and means freedom from the bondage of marriage by the husband. Triple talaq creates a power dynamic in a marriage which is greatly in favour of the man and oppressive to the woman. It violates the fundamental rights of muslim women guaranteed under Articles 14, 15, 21 of the Constitution of India. In talaq there is pain, suffering, shattering of the dreams, hopes of parties, children and family. There has been a heated debate on triple talaq which a muslim men exercises in a single sitting and give divorce to his wife, whether he is angry, drunken, by saying talaq-talaq-talaq in one go even through letter, emails, whatsapp etc. which left the victim muslim women in shock, depression, mental trauma. Therefore the recent judgment of the Supreme Court banning instant triple talaq is a boon for the muslim women.

 

KEYWORDS:  Talaq, Muslim laws, Muslim women.

 

 


INTRODUCTION:

Talaq is an Arabic text in Muslim Laws, and means freedom from the bondage of marriage by the husband in accordance with the procedure laid down by the Sharia law in Sunni Islam. But in Shia law, talaq has to be pronounced orally. Under some schools of Sunnis, a talaq pronounced under compulsion, coercion, undue influence, fraud or under intoxication is invalid. Before separation no chance of reconciliation should be left so as to give opportunity to the parties to think once more on their relationship. Therefore a proper procedure, proper time should be given to them before finally reaching to decide to opt for divorce. In talaq there is pain, suffering, shattering of the dreams, hopes of parties, children and family.

 

But if we look at the recent newspapers, a heated debate is going on triple talaq which a muslim men exercises in a single sitting and give divorce to his wife, whether he is angry, drunken, by saying talaq-talaq-talaq in one go even through letter, emails.

 

Now the question arises on the validity, reasonability and justification of such kind of practice because it has a huge impact on the wife who is left with no option but to quit suffering from depression, mental trauma, economic burden etc.

 

The above debate was the result of petition filed by Saira Banu in the SC to declare triple talaq illegal. She is a postgraduate in sociology who was caught in an abusive marriage, was a victim of the much-dreaded practice under which hot-headed and often violent and whimsical husbands pronounce the dreaded word talaq three times at one go to divorce their wives. Saira Banu had been living separately from her husband for about a year, and her husband decided to end the marriage by writing the word thrice. Rather than approaching the courts to get adequate compensation, Saira Banu questioned the very validity of triple talaq. Whether it was Pakistan cricket legend Imran Khan’s infamous divorce via text message where he wrote ‘Talaq’ thrice and parted ways with his wife, former BBC journalist Reham Khan, or the famous Shah Bano case in India, the sanctity of the institution of marriage has been tarnished time and again by age-old theocracies. In the recent Assam elections, in a bizarre turn of events, a Muslim man, Ainuddin, reportedly divorced his wife Dilwara Begum who defied the village diktat by not voting for Congress, but for a BJP candidate instead. Now the question arises: Is triple talaq or instantaneous triple talaq really a Quranic message?

 

There are different muslim organisations who have defended such practice. The conservative All India Muslim Personal Law Board has defended the practice in terms that are shocking even by its own standards. It claims that the custom is a way out to avoid long-running court proceedings and that, in the absence of triple talaq, a husband may resort to murdering or burning alive his wife because of the time-consuming legal proceedings that might otherwise be involved. It further claims that “Indian society is patriarchal”, and that “personal laws of all communities are aligned with the patriarchal notion”. It defends the right to grant divorce to the husband alone, “because men have greater power of decision making” and uses a dubious line of argument on gender ratio to justify the practice of polygamy. 1 The AIMPLB, a body with no legal status, has long argued that divorce under Islamic law is undesirable and that triple talaq is a sin; however, it maintains it is a valid and effective form of laying a marriage as under and the judiciary should not interfere in the matters of personal laws. Uloom Deoband, one such revered seminary, has often validated divorce given by a husband on the phone, by written communication, and also where a husband repeats the word"talaq" thrice, even in the absence of his wife. In the seventh century, the second caliph, Umar, is reported to have sanctioned triple talaq under special circumstances. This way of ending a marriage was deemed appropriate than to protect women caught in violent or abusive marriages, where they faced danger to life and limb. Umar pronounced triple talaq as an irrevocable divorce to enable women to walk out of bad marriages quickly, without giving their husbands a chance to twist the teachings of the holy book to keep the woman at his home after a single revocable divorce. Many men then used to keep their wives after a single revocable divorce to torment them.

 

Abdur Rahim Quraishi, assistant general secretary of the AIMPLB, emphasised that Muslim personal law should prevail in cases of divorce. He raised several objections to the demands made in the petition. He said, “We are not in favour of the courts interfering in matters of divorce which are decided by personal laws. Section 2 of the Shariat Application Act, 1937, very clearly mentions that in matters of marriage, khula [a form of divorce in Islamic law where the woman can initiate divorce proceedings], mubarat [another form of divorce], etc., the Shariat shall provide the guiding principles for decisions. ”

 

 

On being asked about the issue of women’s rights being violated by personal laws, Quraishi was of the view: “Within personal law, Islam provides sufficient safeguards as well as rights to women. Women are provided with the right to divorce through the provision of khula. But Islam in principle has been opposed to bringing out issues of marital discord in public through forums like the court. The personal laws provide a mechanism of resolution of the dispute within the family. The courts are already overloaded with many cases and referring the matter of talaq and alimony to court will further delay the process in which women will be the sufferer. ”

 

Speaking about the issue of qazis issuing triple talaq certificates, Quraishi said, “The tradition of qazis as custodians of personal law existed even in British courts. The tradition of qazis interpreting law exists in Bihar, West Bengal, Odisha and Madhya Pradesh and a lot of other States. One could question whether the qazis were following the rules of Shariat and the principles of natural justice, but we are not in favour of doing away with the powers that have traditionally been vested with them. ”2

 

But the opponents of triple talaq demands a total ban on the muslim divorce. According to BMMA (Bharatiya Muslim Mahila Andolan), an Indian Islamic feminist organisation brings forth the plight of the ordinary Muslim women in India who constantly live under the fear of being unilaterally divorced by their husbands, more than 90 percent of the 4, 710 women interviewed wanted a ban on unilateral divorce.

 

Filmmaker Shazia Javed, who is currently working on a documentary project on the issue, called 3 Seconds Divorce stated :

"Triple talaq creates a power dynamic in a marriage which is greatly in favour of the man and oppressive to the woman,"3. Dr Tahir Mahmood, a legal expert, called for the abolition of triple talaq, citing the examples of various Muslim countries which had outlawed the practice. Shaista Ambar of the All India Muslim Women’s Personal Board spoke out against instant divorce, scoffing at the ruling making a divorce valid even if it was pronounced in a drunken stupor. 4

 

Three Muslim women activists from Tamil Nadu, Bader Sayeed from Chennai, D. Sharifa Khanam from Pudukottai and Jaibunisha Reyaz Babu from Dindigul, are waging an unusual war within their faith to free women from the practice of arbitrary triple talaq (divorce) and the vexatious issue of derisory alimony.

 

While Bader Sayeed, a practising lawyer, a former MLA and the first woman head of the Wakf Board in Tamil Nadu (she took that post in 2002), approached the Madras High Court with a public interest litigation (PIL) petition seeking a direction to prevent qazis from issuing triple talaq certificates, the others are fighting at the ground level against the practice of patriarchy that has been read into the religion.

 

The three of them, besides a few others, are also seeking codification of the Muslim Personal Law (Sharia) Application Act, 1937, an application of Sharia, the Islamic law code that governs all aspects of Muslim life, ranging from religious obligations to personal relationships, which they strongly believe will ensure “exact interpretations” of the Sharia on issues of divorce, alimony and polygamy instead of its contemporary reading that wrongs women. They are optimistic that this will bring about a radical change in the mindset of orthodox Muslims who look at the activities of these women with suspicion.

 

It is important to note, however, that there are a number of personal law cases where the courts have made very progressive judgements, such as those in the Shamim Ara v. State of UP. Supreme Court nullified arbitrary triple talaq, and opined that talaq has to be pronounced as per Quranic injunctions in order to be valid. Our judicial system has also been very concerned about the rights of women and is of the opinion that proper attempts should be made for reconciliation. In a very famous case of Shamim Ara the court held that talaq sent over email or text message or through a notice or through the Qazi, etc. is not valid. The judgment also laid down the following procedure for a Muslim husband to divorce his wife:

 

Talaq cannot be pronounced in a single sitting and must be preceded by efforts of arbitration and reconciliation by mediators appointed by both the sides who must explore the possibility of reconciliation by resolving the issues. Only if these cannot be resolved, talaq must be pronounced as a last resort. Talaq has to be pronounced before witnesses.

 

The talaq has to be pronounced over three sittings over a period of three months. These months are to allow the couple to reflect on their relationship and not come to a hasty conclusion. During this period, the woman is entitled to her right to residence and maintenance from the husband. In case there is cohabitation during this time, the Talaq would be null and void. 5

 

In 2008, in Masroor Ahmad v. State, it was held by the Delhi High Court judge Badar Durrez Ahmad ruled that triple talaq should be deemed as a single revocable talaq. This decision was based on the case of Jiauddin Ahmed v. Anwara Begum (1981), in which the Gauhati High Court held that a talaq must be “for a reasonable cause” and must be preceded by attempts at reconciliation. In both cases, it was understood that triple talaq at one go deprived the parties of the opportunity for reconciliation.

The rulings of the Delhi and Gauhati High Courts were in consonance with the law in many Muslim countries, including Pakistan and Bangladesh, where triple talaq at one sitting is deemed illegal at least on paper, though many argue that the ground reality is often very different. It is also illegal in largely Muslim countries such as Iraq, Egypt, Morocco, Sudan, Jordan, Syria, Yemen and the United Arab Emirates.

 

In the Shakila Parveen case in 2000 the Calcutta High Court ruled that it should be pronounced thrice in three consecutive periods (and not in one go) when the woman concerned is in the state of purity (periods between the cycles of menstruation). The waiting periods (iddat) provide an opportunity for the couple to reconcile.

 

The proponents of triple talaq are of the opinion that Muslim Personal Law is not discriminatory. It gives equal opportunity to muslim women to seek divorce from her husband. But the reality is something else. It is not so easy for a muslim women to obtain divorce from her husband. According to Zarina Bhatty, who is herself a victim of such divorce recalls: “As a Muslim woman, it was very difficult for me to seek divorce, unlike a Muslim man who could divorce at will by saying ‘divorce you’ three times. For a Muslim woman, it is very difficult to demand divorce without the husband’s consent. ” She recalls that her husband was angry when faced with the divorce request from her. Having grown up in a patriarchal set-up, he took it as personally humiliating. The divorce through khula did come about though. Zarina writes in the book: “One day, he called a friend and gave him a piece of paper on which he had written three times as per the requirement of the Muslim Personal Law, ‘I divorce my wife Zarina by khula’.” In Khula, she clarifies, “means that divorce is granted at the request of the wife and in such a case, the husband is not legally bound to pay mehr or maintenance. It is only if a husband initiates a divorce that he is bound to pay the agreed mehr. ”

 

“As for khula not being talked about, the continuing social disapproval of divorce (for which the woman is made responsible anyway) is responsible. Besides, the economic dependence of most women on their husbands and the Muslim Personal Law’s provision whereby the children can be taken away by the father after divorce works as a deterrent to khula. Women resist asking for khula. Many uneducated women do not even know of it and it is not in the interest of men to publicise it. It is to their advantage to keep their women ignorant of their rights.

 

Laws such as the Dissolution of Muslim Marriages Act, 1939, the Muslim Women (Protection of Rights on Divorce) Act, 1986, and the Protection of Women from Domestic Violence Act, 2005, have provided “some sort of justice” to aggrieved Muslim women who prefer to seek legal remedies for divorces and maintenance. But the interpretations of these laws in sync with the Sharia need clarity as far as the issues of Muslim women are concerned.

 

But the recent judgment of the Honorable Supreme Court declaring instant triple talaq unconstitutional has provided an umbrella by protecting the marriage of muslim women and preventing the muslim men to break the relation in one go. It is the victory of the fundamental and human rights of muslim women.

 

REFERENCE:

1.        Triple Whammy”, The Hindu,Sept.8,2016

2.        Taking on Patriarchy”, Frontline, Sept. 06, 2013

3.        Is India ready to abolish triple talaq? http://www.aljazeera.com/indepth/opinion/2016/06/india-ready-abolish-triple-talaq-160621083847343.html (last visited 09 July 2016)

4.        Contested Practice”, Frontline, June 24, 2016

5.        Will a ban on triple talaq truly help Muslim women in India?, Nausheen Yousuf,http://herald.dawn.com/news/1153461/will-a-ban-on-triple-talaq-truly-help-muslim-women-in-india (last visited 0$ Aug.,2016)

 

 

 

 

 

 

Received on 22.04.2019         Modified on 10.05.2019

Accepted on 27.05.2019      ©A&V Publications All right reserved

Res.  J. Humanities and Social Sciences. 2019; 10(3):887-890.

DOI: 10.5958/2321-5828.2019.00146.3