Triple Talaq

In Islam, marriage is nothing but the expression of two words; one from the bride’s side and the other from the bridegroom’s, which are generally known as ijab and qubool (i.e. offer and acceptance).

The Indian Muslim practice includes only three utterances of the word talaq (i.e., talaq, talaq, talaq). This practice of triple talaq is disapproved and repudiated by almost all the schools under Muslim Law since it is not justified by Islamic religion or morality.

The whole procedure of divorce is rarely known except to few members of the bench and bar. It was held by Iyer J¹³ that

It is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbridled authority to liquidate the marriage. The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him, if they (namely, women) obey you, then do not seek a way against them (Quran IV:34). The Islamic Law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the Law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously.

Maulana Muhammad Ali, an eminent Islamic legal scholar, has also explained that if marriage is not serving its purpose it should be broken down.

Marriage being regarded as a civil contract and as such not indissoluble, the Islamic Law naturally recognizes the right in both the parties, to dissolve the contract under certain given circumstances. Divorce, then, is a natural corollary to the conception of marriage as a contract.... It is clear, then, that Islam discourages divorce in principle, and permits it only when it has become altogether impossible for the parties, to live together in peace and harmony. It avoids, therefore, greater evil by choosing the lesser one, and opens a way for the parties to seek agreeable companions and, thus, to accommodate themselves more comfortably in their new homes.

Without keeping these things in the background, the Supreme Court deliv­ered Shayara Bano judgment in 2017 when the controversy surrounding Muslim Personal Law reforms gained momentum, which resulted in a fractured mandate. Prof Baxi referred to Shaheen Sardar in the context of triple talaq who states that “the closing of ranks among all Sunni schools in relation to triple talaq and tahlil marriages testified to a new paradigm of inter-madhhab and inter-sect (Sunni- Shia) alliance”.¹⁵

The author is also of the same view that he had expressed long back when Justice Tilhari had given a judgment from Allahabad High Court on triple talaq, and it appeared in The Indian Express.¹⁶ Further, the author contributed a book¹⁷ on triple talaq in which he also reiterated the same view that shia law should be adopted in order to resolve the triple talaq problem and there is nothing wrong with following the Ithana Ashariya school (Shia law) by the followers of Sunni schools, and a fatwa should be given accordingly.

Similarly, ProfBaxi was of the opinion that the apex court should have decided the Shayara Bano¹⁸ judgement on triple talaq in the light of above-mentioned prin­ciples.

The verdict in the Shayara Bano case was fragmented, and it may be said that it is 2—1—2 split. It reflects no seriousness from the side of the judiciary as Prof Baxi referred how it would be decided. They didn’t mention either the doctrine of takhyar or the principle enunciated by Shaheen Sardar Ali as well as the jurispru­dence of Fiqh Al-Aqalliyyat. Even Justice Kurian, who maintained that he decided as per Sharia, perhaps remained oblivious of the previously mentioned principles like takhyar etc. and this goes on to show that perhaps Prof Baxi’s rational views went ignored.

However, what is less known is that twenty-two years ago, Tilhari J. delivered a judgment from Allahabad High Court in the case of Khatoon Nisa²⁰ and held the triple talaq invalid. Even at that time it was appealed in the form of a book on tri­ple talaq, mentioned earlier, covering all the views (for and against) for the Indian Muslim jurists to put their home in order; otherwise the judiciary would step in and then the interference in this matter of personal law by the state institutions like the judiciary would not be unwarranted. Because if legislature and judiciary will do this job which actually is to be done by the Islamic jurists, it is but obvious that due to lack of knowledge about Islamic jurisprudence and access to original sources of Islamic Law it would be marred with deficiencies. But Islamic jurists of our country failed to respond and ultimately the day came when the apex court had to take a step to address the grievances of Muslim women and set aside the triple talaq legally. Here we are reminded of the prophetic words of Saeed Ahmad Akbarabadi, who made earnest exhortations when he “asked the ulema to utilize existing opportunities of leadership to propose reforms in conformity with holy Quran and the Sunna”. If the moment was not seized, he cautioned, then it would result in “the government, with the help of Muslim intelligentsia, reforming the law even regardless of the Sharia”.

The inescapable ambiguity in the court’s judgement, together with its direc­tive to the legislature to formulate a law in this regard, as well as the consistent indifference of Muslim jurists, ultimately resulted in the Parliament passing the Muslim Women (Protection of Rights on Marriage) Act in July 2019. This pro­posed legislation, as was obvious, is replete with misunderstandings and draft­ing errors. Section 2(b) of the Act defines talaq as talaq-e-biddat and any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by the Muslim husband. Section 3 says that any pronouncement of the talaq by a person upon his wife by words, either spoken or written or in an electronic form or any other manner whatsoever, shall be void and illegal. This writer fails to understand that when the Supreme Court deliberated only the issue of triple talaq — and this is the only issue which is debatable among Muslim jurists — then why, apart from talaq-e-biddat, no other form of talaq finds men­tion in the Act. It would create a lot of confusion and open the floodgates of doubt and misunderstandings during the course of interpretation. The issue was whether triple talaq should be treated as a single revocable talaq or final irrevo­cable talaq and the apex court like in other Muslim countries seems to be inclined towards the former, so that the doors of reconciliation between the parties should always remain open. The apex court as well as the legislature talks about the laws of Muslim countries, saying that this type of divorce is not permitted there. However, the laws of Muslim countries as we know consider triple talaq as single revocable divorce and do not make it void and illegal. Thus the provision of the proposed law is not in conformity with the Islamic Law. Section 4 provides for punishment for imprisonment for a term which may extend to three years and a fine.

The problem is that even women’s organizations or other social organizations have not been consulted while proposing such drastic measures, let alone the question of consulting Islamic scholars. Many members in the House questioned as to how could a man in jail provide a subsistence allowance. Criminalization for a civil matter and absence of provision for maintenance of a divorced wife in the Act is a recipe for disaster. It leaves no room for reconciliation and thus has no positive impact on Muslim families. The essence of the Islamic Law of divorce is to proceed from mediation and reconciliation and to arrive at a harmonious resolution of the dispute. Most importantly, the proposed law lays scant emphasis on the provision of fines which could have substantially aided the woman. The provision relating to imprisonment will gravely strain the relationship, stigmatize the husband, and will sour the matrimonial relationship and adversely affect the mental development of the children involved. A bad husband sometimes proves to be a good father. This fact cannot be denied. However, the issue of custody of the children as provided in the act is in consonance with Islamic Law. It begs the question that if marriages fail, should the resultant outcome necessarily lead to the imprisonment of the husband? The correct penalty should only be monetary; for instance, section 9 of the Hindu Marriage Act, 1955, which provides for res­titution of conjugal rights, also envisions “attachment of property” as a penalty for failing to obey the decree of restitution and there is no provision for jail.

It is surprising for every criminal law student, because if a person without intention to separate from his wife pronounces talaq three times, how he will be prosecuted under criminal law, because the mens rea is the essential element to constitute criminal offence? Apart from that, if a woman strictly adheres to her religious belief, and according to her faith the company with the husband who divorced her leaves nothing but to have illegal intercourse and she would be entitled of zina, then how can a woman can be forced to live a miserable life when the purpose of marriage is to live within a happy and prosperous relationship? And when they become constrained, then according to Cheshire, “it is better to wreck the unity of family than future happiness of spouses”. In a nutshell this pro-women law, which is highly debated with tall claims by responsible authori­ties throughout the length and the breadth of the country, raises the question of how it will protect women and provide survival to her and her children till the husband is in jail, and after coming from the jail, how will the couple lead a har­monious life? This entire exercise will certainly affect the development of minor innocent children.

One more issue relating to this is halala and unfortunately our overburdened court took the issue to test its constitutional validity. We are astonished to note that if a law has no base for its validity, what could be its constitutional validity? In Islam, after the third pronouncement of talaq the couples are isolated forever and they cannot marry with each other. But in order to ameliorate the position of the degraded women of Arabs, a pro-women measure is provided that by chance if the divorcee married someone else and unfortunately that husband is dead or he divorced her, then in order to provide a safeguard to this woman, the law permits that the woman and her former husband with free consent can marry with each other. This is known as halala and nothing else. Unfortunately, in some segments of Sunni Indian Muslims some derogatory practices are prevalent. Why is this shameful practice not declared derogatory under the constitutional law and why is the Supreme Court wasting its precious time to test its constitutional validity, which is not the law itself but a social evil? This is a social evil and a derogatory practice against women and therefore constitutionally invalid per se. At the same time it is a gross violation of human rights of women. It is also strictly prohibited in Islam.

V.