The Landmark case of Triple Talaq

The landmark case of Triple Talaq

Overview of the Case

Shayara Bano v. Union of India & Others, the case popularly known as “The Triple Talaq case” was writ petition filed by the petitioner in the Supreme Court of India against her Union of India, related ministries , organizations including her husband Rizwan Ahmad. The case was heard by 5 Judges namely, Justice Abdul Nazeer(Muslim), Justice Rohinton Nariman(Parsi), Justice U.U. Lalit(Hindu), Justice Kurian Joseph(Cristian) and Chief Justice Jagadish Singh Khehar(Singh).Shayara Bano was married to Rizwad Ahmad for 15 years, but in 2016 he divorced her by means of instantaneous triple talaq. In the light of this the case was filed asking the court to declare talaq-e-bidat, polygamy and  nikah-halala practices under Muslim personal law unconstitutional as these violates the Article 14,15,21,25 of the Constitution of India.

Background of the Case

As per the shariat there are 3 ways in which a husband can divorce his wife/wives – Talaq-e-Ahsan, Talaq-e-Hasan and Talaq-e-Biddat. It is claimed that Talaq-e-Ahsan and Talaq-e-Hasan are recognized by the Holy Quran but Talaq-e-Biddat is a creation of the Ummayad Kings for their ill-intentions.

“Talaq-e-Hasan” is the ‘proper’ form of talaq. In this form, three successive pronouncements of talaq are made by the husband in three successive tuhrs (when the woman is not menstruating). In case of a nonmenstruating woman, its pronouncement may be made after the interval of a month or thirty days between the successive pronouncements. This form of talaq can be revoked any time before the third pronouncement.

“Talaq-e-Ahsan” is the ‘most proper’ form of talaq in which the husband expresses divorce in single sentence – “I have divorced thee” – during the period of tuhr (when the wife is not menstruating) and then has to wait till the iddat period is over. Iddat period for a woman who has been divorced by her husband is usually three menstrual cycles. During this time, she cannot marry another man. If before the completion of iddat, the husband resumes co-habitation with his wife or says that “I have retained thee”, the divorce is revoked.

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In case the woman is pregnant, the iddat period lasts until she gives birth. The waiting period for a woman after menopause is three months.

“Talaq-e-Biddat” or Talaq-ul-Bain” (Irrevocable divorce) or Instant Talaq or “Triple Talaq” or “Talaq-e-Biddat” is an Islamic practice that allows men to divorce their wives immediately by uttering the word “talaq” (divorce) three times. The pronouncement can be oral or written, or as in recent times, delivered by electronic means – telephone, SMS, email or social media.

Muslim Personal law says that talaq can be given either by a husband or a wife or it can also be mutual. The above talaq discussed are the talaq given by the husand.

Polygamy is another practice where a muslim man is allowed to marry more than one woman, during the lifetime of his existing wife.

Nikah halala is law that a woman has to follow if she wants to stay and come back to her first husband after divorce. Here the woman in order to stay with her first husband, has to marry and sleep with another man and the obtain divorce from him. After this she can come back to her first husband and stay with him. It is considered that a woman can become halala(lawful) for her husband only after she undergoes nikah halala process.

It was said that these practices were unconstitutional and would violate;

Article 14: Right to be treated equally before the law

Article 15: Right against discrimination of Indians on the basis of religion, race, caste, sex, or place of birth

Article 21: Right to life and to live with dignity

Article 25: Right to freely profess, practice and propagate religion.

Judgement laid down

On 22nd August 2017, the SC final judgement was laid down. It was a 5 judge bench judgement consisting of Justice Abdul Nazeer, Justice Rohinton Nariman, Justice U.U. Lalit, Justice Kurian Joseph(Cristian) and Chief Justice Jagadish Singh Khehar. The two main issue the case dealt with were:

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1.Whether the practice of talaq-e-biddat (instantaneous triple talaq) was an essential practice in Islam?

2.Whether the practice of talaq-e-biddat violated any fundamental rights of the Constitution of India.

The Supreme Court of India declared that the practice of talaq-e-biddat or instantaneous triple talaq was unconstitutional with 3:2 majority. Rohinton Nariaman J. and U.U.Lalit J. gave the majority judgement. Abdul Nazeer J. and CJI J.Singh Khehar gave the dissenting judgement where as, Kurian Joseph J. gave the concurring judgement.

Justice Rohinton Nariman and U.U.Lalit declared that the practice of triple talaq was unconstitutional. They stated that this practice was arbitrary and was against the basic practices of Shariat and basic tenets of Quran and thus it cannot be protected under the fundamental right Article 25; i.e Right to Religion. It was said that this practice violated the fundamental rights of muslim woman as it irrevocably and instantaneously ends the marriage without giving any chance for reconciliation.

Justice Kurian Joseph in his concurring opinion stated that the practice of triple talaq was against the Quran and hence would lack legal sanction. He said “what is bad in Quran cannot be good in Shariat, and what is bad in theology is bad in law as well”.

CJI J.S. Khehar and Justice Abdul Nazeer in their dissenting opinion held that though this practice was against the Shariat Act of 1937, it was a crucial part of Muslim personal law and hence was protected by Article 25. When it comes to gender discrimination subject in this practice, it has to be a legislative action rather than challenging its constitutionality. They passed a judgement to make the practice of triple talaq inoperative for six months, within which the legislature must look into the Muslim Personal law and all other related acts and come out with a suitable law which would not violate any constitutional and fundamental rights of the people and the religion.

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However, the polygamy and nikah-halala subjects were not taken into consideration as the court preferred to concentrate on the issue of ‘talaq-e-biddat’. On 22nd August 2017, The Supreme Court of India, with the majority of 3:2, declared the practice of talaq-e-biddat to be unconstitutional.

Conclusion

When we look into the fundamental rights and the gender discrimination aspect with respect to muslim woman, it is very much apt to make the practice of talaq-e-biddat unconstitutional.

One, the talaq may be given in the rage of anxiety when we consider the circumstantial evidences, it may not be given willingly, the motive of the person uttering the talaq is missing in most of the cases. When we consider this it will be very much appropriate to give time to reconciliate the talaq given as we see in other two cases; talaq-e-ahsan and talaq-e-hasan which are revocable.

Second, the procedure which a woman has to undergo i.e. nikah-halala, after receiving talaq if she wishes to stay with her former husband; is extreamly traumatic and torturing. Her mental health will be disturbed very much along with violating her fundamental rights such as gender equality and right to live with dignity. It basically devalues the woman existence.

Thus, the decision taken by the Supreme Court is very much appropriate. It is very much recommended for legislature to go through the muslim personal law and various acts in this regard and make necessary amendments to upheld the dignity of fundamental rights and the laws laid down in The Constitution of India.

Author: Harshini P,
IFIM LAW SCHOOL(BBA LLB, 1st year)

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