Triple talaq , also known as talag-e-biddat, is a form of instant Islamic divorce which has been practiced by Indian Muslims. The practice of instant triple talaq was held unconstitutional by the Honorable Supreme Court in August 2017. The use and status of triple talaq in India has been a subject of controversy and debate. Those questioning the practice have raised issues of justice, gender equality human rights and secularism. The debate has involved the Government of India and the Supreme Court of India, and is connected to the debate about a Uniform Civil Code (UCC) mentioned in Article 44 of the Constitution of India. In July 2019, the Parliament of India declared the practice of triple talaq as illegal, unconstitutional and made it a punishable act. In fact, many countries across the globe have already banned the triple talaq. Islamic countries which have banned the triple talaq include Pakistan, Indonesia, Egypt, Turkey and Bangladesh among many others.
Forms of Talaq
There are three forms of talaq or divorce that is Absan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable whereas Biddat when pronounced in one go by the husband is irrevocable. When a man declares talaq thrice in one sitting, or through phone or writes in a talaqnama or a text message or whatsapp, the divorce is considered immediate and irrevocable, even if the man later wishes to re-conciliate.
The only way for the couple to go back to living together is through a nikah halala, where a Muslim divorcee marries a man and divorces him to get re-married to her former husband.
Triple Talaq Violates Fundamental Rights
The practice of talaq-e-biddat or triple talaq is considered awful in theology. However, it was earlier upheld as valid by law. Similarly, nikah halala violates the women’s dignity. The practice was against the basic tenet of Right to Life as prescribed by the Indian Constitution (Article 21) and violative of women’s dignity. Talaq-e-biddat was also against the Article 14 of the Constitution (which guarantees equality before the law). The practice amounted to gender discrimination and was not in line with the modern principles of human rights. The practice also wreaks havoc in the lives of divorced women and their children, especially those belonging to the weaker economic sections of the society.
Historical Timeline Leading to an End of Triple Talaq
Some of the cases pertaining to the issue of triple talaq are as follows
• In 1985, in the Shah Bano case, the Supreme Court granted Shah Bano, a 62 year old woman the right to alimony from her husband.
• In 1986, the government passed the Muslim Women (Protection of Rights on Divorce) Act which diluted the positive impact created by the Shah Bano Case.
• In 2001, in the Danial Latifi and Anr vs Union of India Case, the SC upheld the validity of the Shah Bano judgement.
•In August 2017, a five judge bench of the SC declared the triple talaq as unconstitutional in a majority 3:2 judgement. This was the culmination of a petition filed by Shayara Bano, whose husband had divorced her through a letter where he pronounced talaq three times, to declare the divorce as void.
Criminalisation of Triple Talaq : A First Step to UCC
The Parliament passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019, thereby criminalising the practice of instant triple talaq. It is truly a watershed moment in women empowerment in India. The court has given progressive thoughts enshrined in the Constitution which take precedence over personal law in society. Furthermore, the Supreme Court ruling that arbitrary personal laws cannot seek refuge under the ‘Freedom of Religion’ right and that ‘Equality before Law’ is supreme has once again brought the issue of the Uniform Civil Code (UCC) in forefront. A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption, etc. Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
Supreme Court View on Triple Talaq and UCC
With Supreme Court upholding the dignity of Muslim women by abolishing the discriminatory triple talaq, similar gender justice may be on the anvil for women across the religious groups. In October, 2015, Supreme Court of India asserted the need of a Uniform Civil Code and said that, “This cannot be accepted, otherwise every religion will say it has a right to decide various issues as a matter of its personal law. We don’t agree with this at all. It has to be done through a decree of a court”.
The Law Commission is exploring how to reform seemingly defective practices in personal laws of other religious denominations as well. Having recognised such defects’ , the Commission is considering whether the two-year period of wait for finalising a divorce for Christian women violates their Right to Equality. The Commission is also considering if the waiting period should be made uniform across all marriages.
The practice of triple talaq is not in consistence with basic human rights. It does affect the right to life of women. In India, personal laws on matters such as marriage, divorce, inheritance, alimony, etc. vary with an individual’s religion. Indian Muslims have Sharia-based Muslim Personal Law, while Hindu, Christian and Sikh Indians live under common law.
However, declaration of triple talaq as illegal can be considered as gateway to a uniform civil code. Uniform Civil Code for a state would be an ideal safeguard of its citizen’s rights. Its adoption will be a progressive legislation. With changing times, the need has arisen for having a Common Civil Code for all citizens, irrespective of religion, ensuring that their fundamental and Constitutional rights are protected.
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