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Friday, 25 August 2017

Triple Talaq - in Quran, Tradition and Law.

Triple Talaq is a form of oral divorce, where the husband declares his intent to divorce the wife by speaking or writing (of late tradition) the word Talaq three times.


According to Classical Sharia there are 4 legal categories of Triple Talaq (TT)

  1. Talaq (repudiation) – ‘Triple Talaq’ falls in this part
  2. Tafwid (delegated talaq)The husband can delegate the right of repudiation to his wife at the time of marriage (nikah). the contract gave the wife the right to "repudiate herself" if the husband married a second wife
  3. Khula (Mutual Divorce)
  4. Judicia
  5. Oaths

People of different geographical locations follow a certain type of Talaq.
As Indian Muslims follow the first method of divorce, we shall discuss in detail about this category. 'Talaq' in classical Islamic Law refers to the husband's right to dissolve the marriage by simply announcing to his wife that he repudiates her. It requires neither justification nor court approval. Classical jurists imposed certain restriction on valid Talaq such as the declaration must be made in clear terms; the husband must be of sound mind and not coerced.

There are three stages in this procedure – Trple Talaq,
Stage One- The initial declaration of talaq (repudiation) is a revocable (ṭalāq rajʿah) which does not terminate the marriage. There is a 3 months waiting period called IDDAH, for this stage. Husband can revoke the repudiation at any time during this period. The waiting period is intended to give the couple an opportunity for reconciliation, and also a means to ensure that the wife is not pregnant (Three Months is to be read as 3 Menstrual Cycles). Resumption of sexual relations automatically retracts the repudiation. The wife retains all her rights during the waiting period.
Stage Two is "Minor" divorce (bayn baynuna sughra) - initiated  when the waiting period of 3 months expires. If the couple wants  to reconcile their relationship then they will have to remarry.
Three If the husband repudiates his wife for the third time, it triggers a "Major" divorce (bayn baynuna kubra). Now the couple cannot remarry without an intervening consummated marriage to another man - which is known as Nikah halala


What is the source of Triple Talaq?
Triple Talaq is part of 'Muslims Personal Law' (MPL) which is based on 'Sharia Law'. The Sharia Law, which in turn is derived from the scriptural sources of Islam -Quran and Hadith
Triple Talaq Sharia Law Quran + Hadith
(part of MPL)

Sharia Law = provisions of Quran + Hadith (preaching of Prophet Mohammad) +
unwritten customs evolved over a period of time
What does the Quran say about the marriage system and its dissolution.

According to the Holy book of Quran, marriage is intended to be unbounded in time. The relationship between the spouses should ideally be based on love (mawadda wa rahma, 30:21)
When marital harmony cannot be attained, the Quran allows and even advises the spouses to bring the marriage to an end (2:231). The community is called upon to intervene by appointing arbiters from the two families to attempt a reconciliation (4:35).
And as part of reconciliation there are 4 steps to be followed (4:34-35)
  1. Sort it out (fa'izul hunna) among themselves. When there is a marital discord, the Koran advises the parties to sort it out among themselves.
  2. Temporary physical separation (wahjura hunna) - If the differences persist, they are asked to undergo temporary physical separation in the hope that this will encourage them to unite.
  3. Husband to explain seriousness of the situation - the husband is instructed, as a third step, to once again explain (wazribu hunna) to his wife the seriousness of the situation and try to bring about a reconciliation
  4. Matter to be placed before two arbiters - if the dispute still remains inresolved, as a fourth step, the Koran requires the matter to be placed before two arbiters, one from the family of each spouse.
It is only after the failure of the above 4 reconciliation attempts that the Koran allows Talaq, mentioned in the following chapters,
  • Chapter 2 - Al-Baqara
  • Chapter 4 - Al-Nisa and
  • Chapter 65 - Al- Talaq

Where is the conflict? Triple Talaq as a tradition and its impact on an individual
Divorce per se is not a bad word. In fact it is one integral and essential part of the marriage system. Same way, it is not the triple talaq which is a problem Then what is the big fuss about it. Let us analyse the issues surrounded in regard to triple talaq,
  1. Instant: Though Quran categorically mentions the three tier procedure of the triple talaq, which takes minimum 3 months of time. But in practice it is not being followed. Instant TT is against the very principle and guidelines of Quran. Instant has no place in original preaching.
  2. Misinterpretation: The self declared mullahs, or for that matter even the well recognized organisations and legal schools, most of the times wrongly interpret the preaching in Quran endorsing the talaq procedures which goes against the very sayings.
Some legal schools held that a triple talaq performed in a single meeting constituted a "major" divorce, while others classified it as a "minor" divorce. Of late, even the instant talaq over phone, Whatsapp and so on are validated by these so called legal schools.
  1. Alimony - Maintenance of divorced wife is limited to period of ‘Iddah’- 3months. As a result of this, the economically dependent women are pushed into a helpless situation. The estranged women most of the times along with their children, are left to their fate.
  2. Exploitation of women: There are many examples of men, taking advantage of poverty, marry children and within no time estrange them just with a tripple talaq. And as there is no set procedure to give protection or justice, the women are at receiving end.
  3. Little say for women: In classical Islamic law it refers to the husband's right to dissolve the marriage by simply announcing to his wife that he repudiates her.  It requires neither justification nor court approval. In only one amongst the 3 types of Talaq (Mutual), the women has a say or an option to express her opinion. The other forms are one sided and tilted towards men, which makes the process discriminatory against women.
  4. Nikha Halala:  The most contentious part of Triple Talaq, going against equality is Nikha Halala. If a divorced couple want to remarry after taking the full and final talaq, then it is the woman who has to take all humility to marry a third person, consummate (have sex with him) and then  if the current husband gives her voluntary talaq or if he dies, could only remarry her divorced husband.  Reconciliation of dissolved marriage, in which men and woman are part of it, is seen as a punishment for women and only for woman.
What are Laws related to it in India?
  • Muslim Personal Law (Shariat) Application Act, 1937 -section 2
  • Dissolution of Muslim Marriage Act, 1939
  • section 125 of the Code of Criminal Procedure  - Order for maintenance of wives, children and parents.
  • Muslim Women (Protection of Rights on Divorce) Act, 1986.  -It overturned the judgment of the Supreme Court (Shah Bano) and restricted the right of Muslim divorcees to alimony from their former husbands for only 90 days after the divorce (the period of Iddah)


What does the court Judgments said or opined about it?



JUDGMENT
Crux of the Judgments
 Aga Mahomed Jaffer Bindaneem vs. Koolsom Bee Bee.1897
The practice of Triple Talaq to be "Good in law though bad in theology". Also it was held that it would be wrong for the courts to put their own construction on the Koran in opposition tot he express ruling of commentators of "Such antiquity and high authority"
Bai Tahira vs. Alii Hussain Fidaalli Chothia, 1979
  • Every divorcee is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right
  • No husband can claim, under S.127(3)(b) absolution from his obligation under S.125 towards a divorced wife

Faazlunbi vs. K.Khader Vali &Aanr,. 1980
  • The Supreme Court has given the decree that the anomaly to be given to the destitute divorcee woman should be proportionate to the decent living conditions. 
  • It was an  improved version of the decree passed in the Bai Tahira vs. Alii Hussain Fidaalli Chothia, 1979, 
Mohd. Ahmed Khan v. Shah Bano Begum, 1985
  • The 5 Judge bench has reiterated that the code of Criminal Procedure controls the proceedings in such matters and overrides the personal law
  • If there was a conflict between the terms of the code and the rights and obligations of the individuals, the former would prevail.

  • Invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed or religion
  • The Court also regretted that Article 44 of the Constitution of India in relation to bringing of Uniform Civil Code in India remained a dead letter and held that a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.

Danial Latifi & Anr vs Union Of India, 2001

  • Triple Talaq is a violation of not only equality before law but also equal protection of laws and inherent infringement of Article 21 as well as basic human values
  • The Muslim Women (Protection of Rights on Divorce) ct, 1986 is an un Islamic, unconstitutional and it has the potential of suffocating the Muslim women and basic feature of the Constitution; that there is no reason deprive the Muslim women form the applicability of the provisions of Section 125 Cr.PC and consequently, the present Act must be held to be discriminatory and violation of Article 14 of the Constitution; that excluding the application of Section 125 Cr.PC is violation of Article 14 and 21 of the Constitution.


Shamima Farooqui versus Shahid Khan case, 2015
Upheld the Shah Bano Judgment and The Muslim Women (Protection of Rights on Divorce ) Act, 11986 was nullified.

Supreme Court Judgement, 2017
Has banned Triple Talaq and asked the Union Govt to make relevant law within 6 months.
SC has observed that the practice of 'Triple Talaq' is unconstitutional and violates the rights of Muslim women. it is the “Worst Form of Marriage dissolution”




What should be the solution?
  1. . To begin with we should not see it as Hindu Vs Muslim or a majority vs monirity. Neither it should be looked or limited to the majority encroaching upon minority. What we should see is the solution by discarding instant and one sided  tripple talaq is for the good of the very Muslim community, particularly women.
  2. It should not also be looked as an encroachment on the Shariat Law as the custom of Triple talaq is itself banned in Muslim-majority countries. More than 20 Muslim countries viz. Saudi Arabia, Morocco, Afghanistan and Pakistan have done away with this method of divorce. Many others have reformed personal laws requiring a 90-day waiting period after utterance of first talaq, in addition to a scrutiny by a quasi-judicial authority.
  3. We need to do away with the practice of Nikah Halala - the most heinous dimension of triple talaq.
  4. Polygamy is the next enemy to the women. The kind of psychological, physical harassment the women in this regard go through is absolutely unwarranted.  
  5. Speed up the Judicial Proceedings. Justice delayed is justice denied.If you spend years dissolving a marriage, then chances of rehabilitating become almost difficult.
  6. Uniform Civil Code -To what extent we can discuss, debate the validity of myriad personal matters which are now governed by the personal laws? Mere judgments squashing an aspect of the personal law or declaring a law null and void will not serve any long term purpose. we have seen the same in Shah Bano case where in the anomaly aspect of Sharia Law which says that the husband is responsible for the maintenance of the divorced wife shall be only 90 days. An act was passed to override this judgment and from there on there is no clarity on the validity of this aspect.
Thus the  larger and one time solution for addressing loopholes and anomalies of personal laws of all the religions, which discriminates, suppresses the basic and humane rights of an individual and the section of the society at large, is to bring in  Uniform Civil Code. Make this Directive Principle of State Policy read through Article 44, a Law.
Is Gender inequality or discrimination only prevalent in Muslim community? A case for UNIFORM CIVIL CODE
If we are seeing the Triple Talaq from the prism of gender inequality then is this discrimination limited to Muslim community and also limited to marriage dissolution?
The answer is, inequality and discrimination is traumatizing, suffocating and unjust not bearing the limitations of the community or of issues such as marriage dissolution. To mention a few facets of discrimination which were and some still are part and parcel of the traditions.  

  • Devadasi; Jogini (A young girl of an age 8-16 is dedicated to God for the rest of her life. In short it is nothing but traditionally accepted prostitution) - banned by law but prevalent even now
  • Sati - banned by law and outlawed by the ongoing custom and tradition as well
  • Prohibition of Widow remarriage - banned by law but prevalent in some parts of India
  • Prohibition of Child Marriages - banned by law but prevalent even now. Studies show little difference in percentage-wise between Hindus and Muslims when it comes to marrying off girls of underage. According to the last Indian census, nearly 8 million girls were married off before they turned 10 years
  • Culture and tradition of khap panchayats which most of the times go against the  basic principle of Equality, gender in particular
  • In some Hindu Temples viz. Shabarimala, Shani Shingnapur and other prayer areas, menstruating women are not allowed in.
  • Women, even today doesn't enjoy equal succession rights to property.
  • The clash between religious beliefs and a woman's reproductive rights to contraception and abortion, still exists in Christianity.
As mentioned earlier the discrimination in many forms is common in all religions. Only a Uniform Civil Code which governs every citizen of this country without any discrimination is the need of the hour.

Conclusion

Triple talaq has been wrongly interpreted by the so called legal schools and mullahs. As a result of which the dangerous tradition going against the individual woman's Fundamental Rights, has been set in place in the Indian society. so seeking change in it, with the changing times,  particularly when it is being exploited, shall not be a matter of concern.
In times of ambiguity and conflicts of religious ideologies vis-a-vis the individual and society at large, there are two guiding principles to be followed,
1. Humanity, Basic Rights and Equality – which is the very base of every religion of the world, and
2.  The Constitution of India.
In light of the above, all the personal laws should be subject to the Fundamental Rights. And the Constitution should not stop where personal law starts. Be it of Hindus, Muslims, Christians or any other, all the personal laws should stand the scrutiny of the Fundamental Rights.

To understand the present context of a tussle between the personal laws and individual rights, and clear the dust to form an opinion on it, Dr. B.R.Ambedkar's words, a speech issued in the Constituency Assembly should deffinitely throw the wisom light,
"'Human Rights' flowing from an individual's Right to Life, Equality before Law and dignity, over-ride the 'Freedom to practice Religion'"