From suo motu to judgment: The arguments for and against triple talaq

What is triple talaq?

Supreme Court of India  

What is triple talaq?

There are three forms of talaq (divorce): Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable. Biddat — pronouncing divorce in one go by the husband — is irrevocable.

Biddat is considered ‘sinful,’ but permissible in Islamic law. An anecdote in this context is about two men meeting in Medinah. The first man asks whether the second has divorced his wife, to which the latter replies that he has done so a thousand times. The man was produced before Caliph Umar, who whipped him. After the lashing, Umar told the man “triple talaq will suffice you.”

The All India Muslim Personal Law Board (AIMPLB) holds that for the Hanafis, who make up more than 90% Sunnis in India, triple talaq is a matter of faith followed for 1,400 years.

How did it come about?

On October 16, 2015, the Supreme Court questioned whether Muslim personal law practices of marriage and divorce reduce women to mere chattels. In a rare move, it registered a suo motu public interest litigation (PIL) petition titled ‘In Re: Muslim Women’s Quest for Equality’ to examine whether arbitrary divorce, polygamy and nikah halala (where a Muslim divorcee marries a man and divorces him to get re-married to her former husband) violate women’s dignity.

The court rued missing the opportunity to address the question of gender inequality in both the Shah Bano and Danial Latifi cases. In the Shah Bano case, the court merely goaded the government to frame the Uniform Civil Code. In the Latifi case, it upheld the right of Muslim women to maintenance till re-marriage. Many Muslim women and organisations backed the court’s initiative. However, a Constitution Bench decided to confine itself to examining triple talaq and not polygamy and nikah halala.

Why does it matter?

This has been an issue of concern for over 65 years for Muslim women, who comprise approximately 8% of the population as per the 2011 census. “Muslim women want to have a life equal to that of another woman, say a Christian or Hindu wife,” the government argued in court. The Centre claimed that instant talaq is not fundamental to Islam. It promised to bring in a new divorce law for Muslim men in case the court strikes down the three forms of talaq.

The government argued that Muslim marriage and divorce is codified under Section 2 of the Shariat Act of 1937 and came within the ambit of ‘law’ under Article 13 of the Constitution. Hence, they should abide by the principles of dignity and non-discrimination.

The All India Muslim Personal Law Board countered that triple talaq is a matter of faith like the Hindu belief that Ayodhya is Ram’s birthplace. The courts and the government should leave reform to the community, it said, quoting the Bombay High Court’s unchallenged decision in the Narasu Appa Mali case that personal law should not be tinkered with. Where will Muslim men go for divorce if you (the court) strike down talaq and Parliament refuses to pass a new law, the AIMPLB asked.

What next?

Justice Kurian Joseph, a judge on the Constitution Bench, ignited a spark by suggesting an alternative that a Muslim bride, at the time of the wedding, be allowed to lay down a condition in the nikahnama that she would not be subjected to instant talaq in case the marriage hits a rough patch.

Days after the court reserved the case for judgment, the AIMPLB filed an affidavit saying that it would issue a public advisory to qazis to advise bridegrooms against instant talaq and also add a condition in the nikahnama to exclude instant talaq. The AIMPLB even threatened social boycott of Muslim men who resort to instant talaq.

The hearings also saw the court toy with the idea of making the Muslim Dissolution of Marriage Act of 1939 — applicable only to Muslim women — gender neutral.

Another possibility is that the court may interpret the pronouncement of instant talaq as a single pronouncement of talaq.

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Printable version | Apr 15, 2021 10:18:26 AM |

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