Triple Talaq: Then and Now

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Vedatrayee, a Kolkata-based young lawyer, takes a hard look at the issue of triple talaq, with a historical perspective. Read more in her regular column, exclusively in Different Truths.

October 2015 gave Shayara Bano an experience that spurred her fight against a custom disguised tyranny when her husband sends her a speed post with the words ‘Talaq’ written three times after 15 years long oppressive and violence-ridden marriage. The custody of her two minor children was also taken away from her. That is when she decided to fight for the cause least knowing that she was to become the pioneer of what in the long future will be held as a ‘landmark verdict’ bringing along battled for change not only in the Muslim community but the Indian society. The Apex Court later tagged the previous four cases of Gulshan Parween, Ishrat Jahan, Afreen Rehman, and Atiya Sabri, all victims of unilateral divorce by their husbands. 

In a society where an outstanding percentage of Muslim women, or for that matter, women, hide away from the public eye when it comes to ‘dishonouring’ their husbands, I have to start by congratulating these brave hearts and the Indian judiciary. The Supreme Court of India by a Constitutional Bench comprising of the then Chief Justice J.S. Khehar and Justices Kurian Joseph, Rohington Fali Nariman, Uday Umesh Lalit and Abdul Nazeer on 22nd August 2017, after two years of Bano’s petition, ruled that the practice of triple talaq is ‘unconstitutional’ and ‘illegal’. The Bench admirably comprised of five judges belonging to five different religions. The verdict now stands to be one of the few judgments that restore our faith in the Indian judiciary. Like many other custom disguised evil in the society, the practice of triple talaq (Arabic for divorce) or instant divorce had been an area of concern since perhaps the start of civilisation, ironically!

The Hue and Cry

There are three forms of Talaq- AhsanHasan and Biddat of which Ahsan and Hasan are revocable. Triple Talaq or Talaq-ul-biddat or Talaq-e-Mughallazah or instant divorce is a form of divorce practiced or rather was practiced by the Sharia Muslims in India and is a type of unilateral irrevocable divorce, whereby a Muslim man could legally divorce his wife by pronouncing talaq three times in one go. The pronouncement could have been written, oral or in modern times, through SMS or any other electronic media. The fact that it was not necessary for the husband to cite any cause for the divorce and the wife to be present at the time of the pronouncement has made this system a centre of controversy and debates within the country, raising the issues not only of constitutionality of a personal law but of justice, human rights, and secularism.

Previously countries like Pakistan and Bangladesh put a ban on Talaq-ul-biddat. Legally speaking, Muslim marriage has been shown to be a contract in the existing Mohammedan Law and being so it cannot come to an end by the instance of only one of the parties and that too whimsically. Hence triple talaq is void ab initio. It has always been void and logically should never have existed but for the muscle power of religion and fallacy of our society. For instance, when the April proceedings of the five-judge constitutional bench were on, the Muslim Personal Law Board has been heard to say that eliminating things like triple talaq ‘are akin to rewriting Quran and forcing Muslims to commit a crime’. It is noteworthy to mention here that the worst outcome of triple talaq was the tyranny of ‘Nikah Halala’, which means that a man cannot remarry a woman after triple talaq unless she has already consummated her marriage with another man and her new husband dies or divorces her. Appearing for Ishrat Jahan, one of the petitioners argued on the varied and often ‘casual’ manner in which manner instant talaq was pronounced, courtesy the advent of technology. Is it acceptable of an intoxicated husband typing talaq on WhatsApp to his wife and although repenting after coming to his senses having to let his wife go through consummation of Nikah Halala if he intends to keep her as his wife?

Current Scenario

The historical order of 22nd August 2017, days before the retirement of Chief Justice J.S. Khehar, has provided a long-awaited and much-needed relief to over 90 million Muslim women in India. The mental insecurity that years of marriage can be broken by the mere utterance of three words has ceased to exist in the hearts of these Muslim women. Before this, the Allahabad High Court had announced triple talaq to be unconstitutional, back in 2002. The sheer lack of media hype like the present day had it covered from the eyes of many women rights activist groups. There have been discussions about the verdict being a step towards Uniform Civil Code (UCC), which although included as a Directive Principle of State Policy, continues to remain a far-fetched dream. Amidst our surprisingly mediocre secular practices, UCC is the call of the hour. The hugely positive response to the verdict of abolishing is evident to the growth of India as a Democratic Republic (one of the few in the world). 

The criticism of the verdict on grounds of minority bashing and ‘meddling with religion’ makes me wonder about the very base of our constitutional philosophy. When it comes to the Constitution, it is not necessary to think of it as a religious or communal standing. This is a Human Right that has been safeguarded and to give it a religious standing is absolutely uncalled for as it would be against the idea of secularism that the makers of the Constitution wanted to imbibe in the Supreme law of the land. Religious over enthusiasm is what has supported a wrong and fallacious anti-law to exist and operate this far into civilisation. Thus, it is quite obvious that we must think beyond the various boxes of customs and norms that have been imposed on us since the time the learned Human learned about religion, community, caste, class, colour, race and creed. We as the neighbors of the same country, India, must work together for the empowerment in general and social empowerment in particular of ourselves. Let us cease to be cynical and think independently of religion and party politics and celebrate the Indian Judiciary for strengthening the confidence of this magnanimity named India.

©Vedatrayee Dutta  

Photos from the Internet

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A young lawyer by profession from The City of Joy, Vedatrayee is currently pursuing LLM from Calcutta University. She is a Bharatanatyam danseuse who has won a number of prestigious awards and performed in several National Festivals and Competitions throughout the country. Another passion that stirs her from deep within is the welfare of street and abandoned animals. She volunteers for a sociocultural endeavor, Swatantra, striving for the social, cultural and behavioral empowerment of the population.