TRIPLE TALAQ : UNDERSTANDING ITS IMPACT ON WOMEN'S RIGHT IN INDIA

AUTHOR: PADMAPRIYA SASMAL,UNIVERSITY LAW COLLEGE, UTKAL UNIVERSITY

Abstract

The common Islamic practices of Triple Talaq, Nikah Halala and Polygamy in India have played an important role in depriving the rights of women especially Muslim women. Triple talaq is the practice under which a Muslim man can divorce his wife by saying "talaq" three times in one go. Talaq-e-biddat has resulted in extreme injustice and oppression. This practice, which has been a controversial subject in the courts of law and society, had many far reaching effects on muslim women deeming them voiceless and secondary citizens. Triple Talaq was declared void unconstitutional by the Supreme Court of India in a landmark case "Shayara Bano v. Union of India" (2017) on grounds that it violated fundamental rights especially Article 14 which is Right to Equality and Article 21 which is Right to Life and Personal Liberty. To some, the judgement was a monumental step towards gender justice and empowerment of Muslim women in India. It also discusses the Muslim Women (Protection of Rights on Marriage) Act, 2019 which criminalises the practice of instant Triple Talaq thus ensuring more Safety and security to muslim women. The article underscores the judiciary and legislature have to ensure the rights of women and promote equality within the ambit of personal laws in India.

Keywords

Triple Talaq, Muslim Personal Law, Women's rights, Gender equality, Nikah Halala, Polygamy, Shayara Bano case, The Muslim Women Act 2019

Introduction

Talaq is an Arabic term which translates to mean the repudiation of marriage by a Muslim man and thus the ability to break all strings that bind him and the wife together. Under this law, wives cannot divorce husbands through the practice of triple talaq. A woman has to approach a court for the purpose of divorcing her husband on the grounds that it is made available under the Muslim Personal Law Application Act 1937. The man need not cite any reason for the divorce and the wife need not be present at the time of pronouncing the word ‘Talaq’ . This article examines the detrimental effects of Triple Talaq on Muslim Women's lives and also highlights the need for its abolition to pave the way for their social and economic progress. The media has reported other cases across the country where Muslim husbands have exercised the triple talaq on very weak or frivolous grounds, including, for example, their wives becoming fat, cooking improperly or waking up late one morning. There were many other incidents that had a nasty effect on Muslim women’s life but were never reported. This unfair practice distastefully caricatures human nature; it gives in to quick and intense anger in the heat of the moment and considers occasional ‘get out’ for polygamy.

Hence, the Supreme Court rightfully stated that this chauvinistic and paternalistic behaviour is ultra vires as it infringes on the right to equality as well as discriminates against women. It also provides an insightful analysis of the triple talaq, how it pushes women into poverty and the necessity to end these discriminatory practices. Triple Talaq was observed to offend Article 14, that social liberty characterised in Section 3 which the Supreme Court of India recognized in Shah Bano case 1986 and was reaffirmed in Shayara Bano case in 2017.

Methodology

Hence the following are the objectives of the present descriptive study, besides it is clear to acknowledge that there is some dire need to reform Triple Talaq and also to review the socioeconomic and legal consequences of the reform process upon the liberty of Muslim women. The research shall use secondary data collection methods in order to gain a good understanding of the subject matter.

Data Analysis : Primary sources of information will not be used in this study; instead, material from secondary sources only will be used hence using Court records or cases, administrative reports or reviews, articles, novel or story, newspaper articles and articles on the Internet. Particular emphasis shall be given to the recent Supreme Court judgement of Shayara Bano v. On the restraining order passed by the Union of India as also on the legislative changes in the form of The Muslim Women Act, 2019.

Literature Review

What is Triple Talaq ?

Triple Talaq or Talaq-e-Biddat is a method of divorcing a woman in which a Muslim man can dismiss his wife. After the decree is issued the marriage is dissolved and cannot be reversed, therefore the woman has no one to support her. While operating in some Muslim communities in India, it was a big issue concerning the rights of women because women were subjected to instantaneous and unilateral divorces. Triple Talaq has been described as un-Islamic by many scholars for the reason that the Quran has laid down a more formal structure. Triple Talaq was declared unconstitutional by the Supreme Court of India in the year 2017. But in the year 2019, Indian Government banned it and it became a criminal offence where men could get arrested and have to face imprisonment of up to three years.

Status of Muslim women under Triple Talaq : Triple talaq has been a tradition which has been acceptable in Muslims society from time immemorial and has been deeply rooted in the psyche of Muslim’s people. Thus it does not become different the moment an explicit declaration is made that such a thing is void of law. In case a lady has accepted the idea of a triple pronouncement divorce the lady may consider it unlawful to cohabit with the husband although it is not considered as a divorce in per the provision of the law 4. From a number of research 5, women from marginalised groups engage in informal community means to seek for their rights in their packages contrary to the law court means. Since poor women are afraid of approaching the courts and police stations. For the same reasons, it has been further argued that the Act might as well compel husbands to tender triple talaq and abandon the spouse. Her family relations may even reject accepting her back because of her disempowered status since she cannot be married again. It goes against the constitutional principles of gender equality, secularism, and the right to a life of dignity. Muslim women have been living with poverty, educational , economic and social backwardness , political exclusion and manipulation.

Challenges in banning triple talaq :

Cultural and Religious Sensitivity : They insisted that Triple Talaq had its origin in the Islamic law. This can be accepted as violating the rights of practising religion, therefore; some Muslim groups will oppose it and conclude that it has been banned.
Legal pluralism : India runs a system of parallel legal systems for people of different religions. The High Court did not consider the argument whether eradicating Triple Talaq would raise further apprehensions about connection between Uniform Civil Code and religious freedom.
Community Backlash : While several liberal segments of the Muslim world support the prohibition, many conservative districts inside the Muslim society think that the ban threatens their freedom and can cause revolutions.
Lack of Awareness and Education : Implementing the ban may be difficult since some Muslim women may even lack adequate knowledge on their legal justice as some of them do not dress in the said fashion.
Political Polarisation : Hence the Triple Talaq there is a major concern which is politically influenced and different political parties hold different views and hence any reform becomes a big challenge.
Implementation Challenges : As long as the ban is in practice the overall prevalence, monitoring and compliance with the ban are difficult especially in the rural and remote areas where support structures are virtually nonexistent to vulnerable women.
Resistance from Clerical Bodies : Male religious representatives have been a major impediment to any endeavour to alter the personal laws as they regard such as incursion into their legal and social domain.
Fear of Increased Talaq Cases : Of course, its critics retain that the ban of Triple Talaq may pave the way to various other forms of unilateral divorces or instance, the husbands dumping their wives without legal divorces.

These are some of the issues, which make it quite challenging and hard to enforce the Triple Talaq ban in India.

The Muslim Women (Protection of Rights on Marriage) Act, 2019 :

Key Provisions of the Triple Talaq Law:

Criminalization of Instant Divorce : The law has specified that the uttering of Instant Triple Talaq (in verbal, written or electronic form) is “illegal” .
Punishment : A man who practises Triple Talaq can be prisoned up to three years and have to pay a fine”.
Cognizable and Non-bailable Offence : This is an offence which is cognizable which means the police can arrest the man based on the complaint of the wife or her family members. It is also “non bailable” which means that one can only be released on bail by the magistrate.
Maintenance for the Wife : According to the law the role of providing necessaries to the wife and dependent children is assigned to the husband after the marriage has been terminated and this is done through the payment of “subsistence allowance”(maintenance).
Custody of Children : It allows the woman to claim “child custody in case of a divorce” of the couple.
Prohibition of the Practice : The practice of instant Triple Talaq is declared as “invalid”, in legal terms it means that the marriage has not been dissolved and the woman is still married to the man unless a proper legal procedure of divorce is undergone.
Purpose: This law has been made for the protection of Muslim women against the unjust and unreasoned practice of Triple Talaq and to provide Muslim women with their legal rights to maintenance and custody of It was regarded as women emancipation and Gender equality in the Muslim society in India considering the holiness of the woman.

Case laws related to Triple Talaq :

Here are three important case laws related to Triple Talaq :

Shayara Bano v. Union of India (2017)

Judgement : The Supreme Court declared “Talaq-e-Bidat” (Triple Talaq) unconstitutional primarily on the rights of Muslim women, Article 14 of EqualityClause, and Article 21 of Life.

Significance : This was the case that resulted in the Triple Talaq being banned, and the subsequent legislation of “Muslim Women (Protection of Rights on Marriage) Act, 2019”.

Shamim Ara v. State of U.P. (2002)

Judgement : According to the Supreme Court verdict the Triple Talaq must be pronounced under proper process based on sound cause and efforts for amicable resolution of the dispute. It did not legalise instant and arbitrary Talaq.

Significance : This case was a starting point or a source that helped to call in to the ledge of the instant Triple Talaq, and to determine that divorce should be done following due process.

Mohd. Ahmed Khan v. Shah Bano Begum (1985)

Judgement : In the recent Shah Bano case the supreme court awarded maintenance to the applicant Shah Bano on the ground of general law and opposed the Muslim personal law.

Significance : Though not directly concerning Triple Taka, in this case it paved the way for discussions on Muslim women’s rights and reforms in Muslim personal law for protection of the rights of Muslim women.

Result

The results of this descriptive study underscore the complex effects of Triple Talaq on the advancement of Muslim women and the pressing need for social and legal change.

Socio-Economic Impact : Triple Talaq has a more socio-economic effect on Muslim women and their status in the society. In the case where this method of divorce is applied, many women end up without adequate child support, alimony or access to marital property, thus ending up being financially insecure. The problem that many women face in obtaining employment increases their vulnerability in the economic front. Further, their limited education level works as another factor that makes them more marginalised as it denies them the chance to move up in their own lives as well as at the workplace.
Legal Challenges : There have been certain positive Legal Changes such as – The Muslim Women (Protection of Rights on Marriage) Act, 2019 and the Shayara Bano v. Union of India judgement there remain significant enforcement deficits. Most of them are illiterate in law, and are compelled by social pressures, which makes them abandon their rights to litigation. Lack of proper legislation regarding alimony and post divorce support are also the causes that result in women’s disenfranchisement.
Psychological and Social Impact : One of them is psychological torture, under which women experience trauma, anxiety, and social isolation after Triple Talaq. Their failure to reconstruct their life is also by the irreversible characteristic of the divorce since it ends the marriage irretrievably; this results in psychological ill-health.
The Need for Reform : The research that is currently available states that legal changes have probably initiated the reform against Triple Talaq, while social changes are required. Community based awareness, education, and economical uplifting programmes are required for Muslim women. The study therefore calls for a review of the personal laws with special reference to gender justice, equity and women rights as enshrined in the Constitution and international human rights.

Discussions

SUGGESTED SCHEMES FOR TRIPLE TALAQ :

CODIFICATION OF THE MUSLIM PERSONAL LAW : Muslim law has to be codified, and this is a task which needs to be performed with utmost seriousness, which can be expected from academics, legal practitioners, liberals and liberal ulema. These three internalised common denominator laws must therefore be gender just laws. Muslim men’s organisations must demand change from Muslim women for its change.
ENCOURAGING THE IDEA OF A UNIFORM CIVIL CODE : The understanding of beliefs and customs which may lead to tensions between different ethnic groups will help to achieve the process of national integration. It will enhance unity and integrity of the country plus it will help in eliminating several evils, unfair and unreasonable activities prevalent in the communities. In order for it to be acceptably civilised, every relation of every person must conform to these rules.
PRIORITISATION OF GENDER EQUALITY : One must emphasise equality of men and women within the lack of the fundamental rights as the overriding factor as compared to the conservatism of the religious professors. One way of doing this is by saying a firm ‘no to’ polygamy and triple talaq. Personal law issues cannot be discussed without taking into account the fact of patriarchy, and those laws that subordinate women cannot stay unchanged.
SUPPORTING ALL REFORM MOVEMENTS THAT CHALLENGE PATRIARCHY : It is therefore the call of any responsible citizen to support his or her government in getting rid of the injustice that women face so that it will trigger the development of the whole nation. It means that we have to attempt to be such people who can take traditions from the dark side to the bright one and not the other way around.

Why do we need to ban Triple Talaq ?

Immediate Divorce : Triple Talaq made it possible to seek dissolution of marriage, should the Union prove beyond repair, instantly. Should mediation, counselling, or any other technique not be effective in addressing conflict, the practice provided an option out of toxic or unhappy marriage. Some people point that allowing the instant divorce saved those couples from protracted litigation, which can have a detrimental impact to both parties in particular, and their families in general.
Legal Rationalisation : Another reason some people support Triple Talaq is that it has its origin in the religious laws and some have been practising it for centuries now. They argue that almost all personal laws such as marriage and divorce laws respectively are part of the religion and therefore, should not be regulated by the state. It allowed Muslim men to do the right thing in dissolving a marriage as allowed in the Qur’an without interference in family matters that people within a Muslim society consider to be their own business.
Triple Talaq was practised and was in vogue in Islamic societies where men especially dealt with family and legal matters. According to the norms of gender divisions, a man even without his wife’s permission could dissolve the marriage.
According to some scholars it was the continuation of pre Islamic traditions where men were given freedom to divorce their wives without any questions asked. This gradually evolved into part of Islamic jurisprudence and the practice’s defenders claim that it simply manifested a cultural process which had gone on for centuries.
Utility in Divorce : Many people also strongly support Triple Talaq because delaying divorce or prolonging legal procedures could create many problems for the couple and the children as the marriage does not work. Triple Talaq also provided a quick and instant solution without having to approach the court for lengthy procedures.

Conclusion

“Triple Talaq" is not just a question of personal law but a matter of fundamental human rights affecting the empowerment and progress of women. In our practice, it exposed women in precarious situations lacking dignity, security and prospects for equality. It is, therefore, an imperative that we work towards urgent reforms to enable a society where women are respected and revered. These must not only look at legal provisions, but also change in social mindset and communities that perpetrate these heinous crimes, creating a safer working environment for women to get their share of what is rightfully theirs. That is the only way to truly establish gender equality and sustainable development.