Author: Manish Sinha
The dissolution of marriage between man and woman under Islamic law id called Talaq. This is utterance of the word three times to get this completed.
Correct Process for Talaq–
It must be for a genuine cause. There must be measures taken for reconciliation and if not worked out then two people can decide to call of their marriage. The idea to utter the word Talaq 3 times is between different interval if individual mutually decide along with 1 arbitrator on both sides to be in relationship again then they can. If not, then it can be granted.
The process is called Talaq e Sunnat is the right way of getting in to Talaq. It has two processes to get talaq:
Talaq e Ahasan and Talaq a Hasan.
In talaq e ahsan- The man makes the statement to give talaq to the women. During the period of purity, these utterances are not irrevocable. There is a period of Iddat or period of prohibition, usually these are 3 cycles, during these periods, the man has still the option to call of his decision and stay with the same woman.
Same way in Talaq a hasan- when man says the first utterance then of the word Talaq- it has to be pass through three cycles and during these cycles the reconciliation could be made and is allowed.
Both these methods allow conciliations , revocability, and arbitration and these could not be instant talaq.
Fact of the case
Shayra Bano was married to Rizwan Ahmad for the last 15 years and she suffered this Talaq in 16th Year of her marriage by her husband following the method of Talaq E Biddat, which means by uttering the word Talaq instantly three times.
She filed a writ petition in the Supreme Court of India to stop 3 practices Talaq e Biddat, Nikah Halala and Polygamy. They stated these practices unconstitutional as they violate article 14, 15, 21 & 25 of Indian Constitution.
Nikah Halaa which means if a woman wants to come back post Talaq from his first husband then before she can come back she has to marry and give talaq to her second husband and then only she can go back to first husband.
Whereas polygamy allows Muslim man to marry more than one woman
Issue of the case
Whether Talaq e Biddat is a religious practice followed by Muslims.
Whether this practice violates Fundamental Rights of Woman.
Legal provisions used in the case
Arguments of Shayara Bano
A senior Advocate Mr. Amit Chadha representing Shayara Bano, argued that triple talaq is not a religious form and is not recognized by Muslim Personal Law application act 1937.
He further argued that Quran do permit to get divorce for reasonable cause and with attempt of reconciliations. As per his findings in the argument to strike down triple talaq because it was allowing an uncodified power to Muslim men to divorce and it violates Article 14 and 15 of Indian constitution.
Talaq Talaq Talaq- Is not a regional practice, it does not come under Talaq e Sunnat. It came into existence with some modifications where people said when ultimately Talaq is to be given then why to give more time. It got modified and people started following it since many years. This modification is called Talaq e Biddat.
He concluded by suggesting that if triple talaq is struck down, the law of divorce for Muslims would be the dissolution of Muslim marriage act, 1939 that could apply equally the entire Muslim community, irrespective of gender.
Arguments by respondent :-
Mr. Kapil Sibal argued that marriage is a private contract under Islamic law , no state can change this form.
He said article 13 does not apply as triple talaq belongs to Muslim Personal Law and its absence in article 13- means that it is excluded from beginning from constitution so could be exempted.
You can turn to the right to freedom of religious practice under article 25 clause 2. He argued that the constitution empowers Parliament to make social reform law on secular activities associated with religious practices. Hence, only after Parliament pass the law on the subject can a court assess its validity. Mr. Sibal suggested that collection of money in a temple an example of such secular activity.
Mr. Sibal concluded as that that Muslim women are not discriminated in the practice of triple talaq rule He proposed four options :
- She can register the marriage under the special marriage act, 1954
- She can insert bind groom with terms and condition in Nikaah Nama.
- She could delegate the right to talaq to herself and exercise it as per her wish.
- She can insist on the payment of a high mehar amount to deter the practice of triple talaq.
In August 2017- 22nd Day the bench of five judges pronounced its decision that practice is unconstitutional by a 3:2 majority. The argument went for six days from both sides and the bench reserved the case for judgement.
The court said we cannot make law- it’s the job of parliament so it must be addressed by that house.
Justice Nariman and Uday Lalit found that Talaq e Biddat is regulated by Muslim Personal Law (Shariat Application 8, 1937.
They said its not a religious practice and what is bad in Quran can not become good in Shariat, what is bad in theology is bad in law as well.
Chief Justice Khehar and Justice Abdul Nazeer stated that triple talaq is not regulated by Shariat Act of 1937, but it belongs to personal law. So it is protected by Article 25 and 44. But to solve the case- it is found that discriminatory practice of Talaq E Biddat is a legal action and not challenge to its belonging ness with Indian constitution.
Conclusion and suggestions
July 30, 2019, Parliament of India declared triple talaq practice as illegal, unconstitutional and is a punishable act from August 1, 2019 and it got effective from September 19, 2018.