Whether or not Sunni Muslims in India can or should reform triple talaq has been a matter of intense debate in the community for nearly a century. Even their jurists believe that the Ahsan (best) method of divorce requires the husband to give a talaq to his wife in her tuhr, or menses-free time. He can withdraw the talaq during the iddat, or waiting period, which is of approximately three months. Should he not do so, divorce kicks in after the expiry of the iddat. However, the divorced couple can remarry at a future date, precisely why this talaq is called Ahsan.
A talaq is called Hasan (good) when the husband divorces his wife a second time, following the same procedure adopted in the first instance. Once again, the husband is permitted to withdraw the talaq before the period of iddat expires. Once again, the divorced couple can remarry in the future should they so wish.
However, a talaq given the third time dissolves the marriage forthwith. There is no waiting period, no room for reconciliation, and the divorce is irrevocable. The divorced couple can remarry only if the woman marries another man and who subsequently divorces her. This system of an intervening marriage before the triply divorced couple can remarry each other is called Halala.
The Halala system is often exploited to overcome the Islamic prescription prohibiting couples from remarrying after they have been divorced thrice. Typically, the ruse involves the triply divorced couple entering into an underhand agreement with another man who marries the woman and divorces her thereafter. She is then legally free to marry the man who had divorced her thrice previously.
It might seem amusing that a woman would wish to marry the husband who has divorced her thrice, but this is precisely where the harshness of the procedure which has the husband pronounce talaq thrice in one sitting is brought out vividly. Called Talaq-ul-Bidat, it is perhaps as old as Islam itself.
The All-India Muslim Personal Law Board has been mulishly opposed to abolishing triple talaq, which is a procedure a Muslim adopts to divorce his wife by pronouncing talaq three times in one sitting. Most recently, the AIMPLB has expressed disquiet over a petition requesting the Supreme Court to determine the constitutional validity of triple talaq.
The AIMPLB’s position is in sharp contrast to the dominant trend worldwide. As many as 22 Muslim countries – including Pakistan and Bangladesh – or their provinces have abolished triple talaq either explicitly or implicitly.
The argument that many Muslim religious leaders and followers are putting forward is that the government of India cannot interfere in the beliefs, laws and functioning of any religion or as the Muslim Personal Law Board stated in an affidavit to Supreme Court “Personal laws of a community or religion cannot be re-written in the name of social reform” is totally and completely baseless. Had the banning had anything to do with religion, the Islamic theocracies would not have banned it. So, why is it so difficult to understand that the privilege enjoyed by only Muslim men to give Talaq-e-bidat falls under the discriminatory and gender-biased practices and that going against such practice does not amount to blasphemy? This is a gender issue and not a religious one.
Philanderers using religion as a tool to defend this patriarchal nonsense. Some very shameful arguments against the banning of Talaq-e-bidat have been stated in the Supreme Court by the Muslim Personal Law Board. They said that if triple talaq is not allowed then a man could burn alive or murder his first wife in order to get rid of her and that “triple talaq ensures a lawfully wedded second wife instead of an illicit mistress.” This statement coming from them only serves to prove that the only reason such men do not want to abandon this law is because they want to continue their licentious and profligate habits and getting rid of them hurts!
It was a unanimous decision taken by around 91% of Muslim women in India who oppose and condemn this after having suffered over the years under the commonplace acceptance of patriarchy. They live in constant threat of being forsaken and thus, are always ready for terrible compromises. Instances have been recorded where women were divorced by their husbands on WhatsApp, on phone and even in their absence such that they didn’t even know that they have been divorced.
Triple Talaq was one of the burning and intense issue in the Uttar Pradesh assembly elections. Whooping 300+ seats along with capturing few muslim populous areas like Deoband is signalling towards the end of talaq system.
The Court stated the following findings:
- Nikah is based on offer and acceptance between man and woman. Unless both agree, there can’t be Nikah and on the same analogy, the declaration of talaq must be done in the presence of wife and only if both agree, talaq would be executed. In the disagreement, wife is left with the option to file the Regular suit for divorce where the court may accept or refuse the grant of talaq by looking into the grounds of both the parties.
- The sweep of Article 14 and 21 of the Constitution covering rationality and fairness along with dignity and quality of life shall override the right conferred by Article 25 and 26 of the Constitution. A lady cannot be compelled to marry again to another person before marrying her husband again after talaq as a condition. It is humiliating and against the dignity of a lady.
- In Muslim Law, marriage is a contract and Constitution of India doesn’t entitle the husband to rescind contract, orally, by notice or by ex parte decisions, hence seems to be unsustainable.
- In appropriate case, a person may be charged under the Penal Code (supra) for abusing his position as husband whether it is for the purpose of divorce or remarriage.
- The Collective Rights of the Citizens protected by the Part III of the Constitution may not be infringed under grab of the Personal Laws.
- The declaration of the oral triple talaq by ex parte proceedings may not be given force by government machinery or the courts hen the subject matter being contrary to the constitutional ethos.
- The Army Authorities ordered for the grant of maintenance to wife in pursuance to power conferred by Section 96 of the Army Act, 1954 read with Army Orders is perfectly within jurisdiction and calls for no interference.
- Women of every religion of the country are protected by the Constitution of India. No one has right to go against it in the shadow of personal law.
One nation and one law should be implemented.
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