Triple Talaq Issue – Tradition Vs Fundamental Rights

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Recently, the Parliament has passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019, thereby criminalizing the practice of instant Triple Talaq. The bill is humanitarian consideration for Muslim Women suffering from triple talaq. Under this law, giving instant triple talaq will be illegal and void, and will attract jail term 3 years and a fine for a man.

What is Triple Talaq?

  • Triple Talaq is a type of Islamic divorce that has been practiced by Muslims in India, particularly the followers of Hanafi Sunni Islamic schools of jurisprudence.
  • It facilitates any Muslim man to divorce his wife legally just by stating the word talaq (the Arabic word for “divorce”) 3 times in oral, written, or more recently, electronic form.
  • Triple Talaq is mostly known for its controversy throughout the world. Muslim-majority nations such as Saudi Arabia, Morocco, Afghanistan, and even Pakistan have prohibited triple talaq.

Why SC made Triple Talaq unconstitutional? (Arguments against Triple Talaq)

In August 2017, the Supreme Court has invalidated the triple talaq practice by calling it arbitrary and unconstitutional.

SC termed instant talaq as “manifestly arbitrary” which makes it violative of Article 14 (Right to Equality).

Social factors

  • The mere existence of this tradition for over 1,400 years itself cannot make it legal.
  • An individual’s equality and dignity are placed at the mercy of their communities by this practice.  Individual rights prevail over the community’s rights.

Religious factors

  • Triple talaq is against the basic tenets of the Holy Kuran.
  • Muslim Personal Law (Shariat) Application Act 1937 had earlier put an end to unholy, oppressive and discriminatory customs and traditions in the Muslim community. Likewise, Triple talaq can also be invalidated.

Legal factors

  • A section under the Shariat Act 1937 has already recognized triple talaq as a statutory right rather than a fundamental right = puts triple talaq outside the ambit of Article 25.
  • Thus it was made clear that triple talaq was no longer a personal law and it comes under the scope of Article 13 of the Constitution i.e., Laws inconsistent with or in derogation of the fundamental rights.

What are the arguments in favor of Triple Talaq?

  • Arbitrary: Triple talaq has been backed by the All India Muslim Personal Law Board (AIMPLB), a private organization that monitors the enforcement of Muslim personal law. It mentions that the State does not have the right to interfere in religious matters.
  • Cultural diversity: India is popular for its diverse cultural trends. Every religion can practice their own laws and rules, with no interference from the lawmaking bodies. Discouraging this feature will be a bad move since there are Hindu personal laws too that allows them to have their own rules. Changing the diversity of India and forcing them to adapt to the uniform civil code will be an extreme move.
  • Interference in religion: Constitution provides the right to all religions to freely practice their own customs and traditions. If the government interferes in the things which are supposed to be traditional to a certain religion, people are going to oppose it in huge numbers. This could cause mistrust among people which can negatively impact the harmony of the nation.
  • Forcing them to decide: Rather than enforcing the Uniform Civil Code, the government of India could order the personal law boards to act with sensitivity with these matters like Triple talaq and Nikah halala. Several Muslim countries have altered their rules regarding triple talaq. Surely, the Muslim Personal Law Board too can do that with some instructions from the high courts.
  • Constitutional right: Talaq as a personal law practice was an integral part of Article 25 (Right to freedom of religion).
  • It has been practiced for over 1,400 years = it becomes a matter of firm religious faith and cannot be tested on the criterion of Article 14. Thus personal laws like instant talaq were an exception to the constitution’s stated objective of protecting gender equality.
  • Instant talaq cannot be made void just because the Koran does not expressly provide for or approve of it.
  • AIMPLB also claims that Muslims have a lower rate of divorce when compared to other religious communities.

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What are the salient features of Muslim Women (Protection of Rights on Marriage) Bill, 2019?

The Muslim Women (Protection of Rights on Marriage) Bill 2019 declares talaq, including in written or electronic form, to be void (not enforceable by law) and illegal.

Definition

  • It defines talaq or any other form of talaq stated by a Muslim Man leading to instant and irrevocable divorce.
  • It refers to Talaq-e-biddat as the practice under Muslim personal laws where stating the word ‘talaq’ 3 times in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.

Cognizable offense:

It makes the declaration of talaq a cognizable offense.

  • Note: Cognizable offense means the offense for which the police officer can arrest an accused person without a warrant.
  • The offense will be cognizable only if the complaint is made by the married women (against whom talaq has been declared), or any person related to her by blood or marriage.
  • A husband declaring talaq can be sentenced to imprisonment for up to 3 years along with a fine.

Bail:

The Magistrate may grant bail to the accused.

  • But it may be granted only after hearing the woman.
  • The Magistrate has to be satisfied that there are reasonable grounds for granting bail.

Compoundable:

The Magistrate can compound the offense upon the request of the woman.

  • Compounding refers to the procedure where the two sides agree to stop legal proceedings and settle the dispute.
  • The terms and conditions of the compounding will be decided by the Magistrate.

Allowance:

A Muslim woman against whom talaq has been declared is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the allowance will be determined by a First Class Magistrate.

Custody:

She is also entitled to seek custody of her minor children. The determination of custody will be made by the Magistrate.

What are the concerns with this bill?

  • There are great possibilities for misuse of the provisions by women and it will lead to the imbalance of power in Muslim marriages.
  • It is unclear why a civil contract should invite a criminal penalty. If talaq is made cognizable offense, then a police officer who receives a complaint can put the man behind the bars without getting prior permission from the magistrate. This has raised the fear of Muslim men becoming soft targets since they can be thrown in jail for 3 years with just a complaint.
  • The law is not necessary since the Supreme Court had already outlawed the practice.
  • The original 2017 Bill stated that the offense would be non-bailable, which has been diluted to a bailable offense in the latest version.
  • The woman is entitled to receive from her husband a subsistence allowance for her and her dependent children. However, it is illogical to expect a man who is imprisoned for 3 years and with less chance of earning a livelihood to pay the allowance.

What is the way forward?

  • According to social activists, Muslim marriage is a civil contract between two adults and the procedures to be followed on its breakdown should also be of civil nature. Penal action to discourage the practice of instant triple talaq does not take into account issues of the economic security of women.
  • The government should strengthen the negotiating capacities of women by providing them with support and criminalizing instant triple talaq was not the answer.
  • It has also been suggested that the government should provide economic support to the affected women, children and other dependents if the husband is put behind bars.
  • There are several instances where Muslim clerics disregarded the Supreme Court ban on triple talaq by using the term “talaq-e-bain” to divorce the wife unilaterally. Hence, in such cases, Triple Talaq in some form or other names will continue to occur even after this bill as such laws by their nature are difficult to implement. Any form of divorce will continue to happen with some other name until the Muslim clergy change its very nature.

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MAYANK MISHRA
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MAYANK MISHRA

Very Well written !!!