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TRIPLE TALAK AND THE NEWLY FORMULATED LAWS

Neha Roy
TRIPLE TALAK AND THE NEWLY FORMULATED LAWS

TRIPLE TALAK AND THE NEWLY FORMULATED LAWS

Triple talak has always been a debatable and a controversial topic. Despite of new laws coming up for the protection of Muslim women, there are still people in the community who believe that Triple Talak should not be banned and still continues the practice.

In this blog I shall discuss about Triple Talak and the its aspects. My blog contains the following topics:-

·        What is Triple Talak

·        Forms of Talak

·        Triple Talak in India

·        Legal Ban on Triple Talak

·        Judgement

·        Legislation


WHAT IS TRIPLE TALAK?

Triple Talak is basically a form of divorce that was practiced in India which allowed a Muslim man to legally divorce his wife by articulating TALAK (i.e the Arabic word for divorce) three times. Moreover after a period of iddat during which it was assured whether the wife is pregnant, then in that case the divorce becomes irrevocable.

According to Muhammadan law, any husband who has a sound mind and has attained puberty, may divorce his wife whenever he desires without any valid reason, at his mere whim or caprice. He is free to do so just by mere words without any talaknama (deed of divorce). If the words are well understood or express(saheeh) no proof of intention in required. On the other hand the intentions of the user must be proved if the words used are ambiguous (kinayat). A talak pronounced under compulsion or in jest or even in state of voluntary intoxication is considered valid. Also if the husband do not intend to divorce his wife and under compusion gives talak, the talak was held valid. Moreover a talak pronounced by the husband while he is benumbed or asleep would not be valid even if he confirms after waking up. However, a talak is valid if pronounced during illness or even during death- illness. Presence of wife is not necessary for the pronouncement of talak. In the absence of the wife the husband went to the Kazi and pronounced the divorce where the talaknama was prepared and duly executed, the divorce was held valid, and the divorce was in effect from the date of the document, even though not communicated to the wife.

A talak is only valid when made by a written instrument, notwithstanding that it has not been brought to the wife’s knowledge. Provided the talak is pronounced in the absence of wife and is not brought to her notice then in that case she must either be referred to by name, or the words of repudiation must clearly indicate to her.

According to Quran the verse is self-explanatory: wherein there is no concept of three divorces in Islam. It is only after the second divorce that a man can get separated or retain his wife. The concept of “Three Divorces” nowhere exists in the Quran. However, the concept of “triple talak in one sitting” or “Instant talak” is alienate to the Quran.


?FORMS OF TALAK

1. (a) Talak- us- sunnat (For Shias and Sunnis)

It is basically sanctioned by the sunnat or traditions or customary talak. It is of two types:-

       i.           Talakahasan- This compromises of a single pronouncement of talak which is followed by abstention from sexual intercourse for the period of iddat.

     ii.           Talakhasan- Under this particular form of divorce there are three pronouncement of talaki.e once inbetween three successive periods of purity which thereby means intervals between menstruation which is called tuhr and abstention from sexual intercourse till the third pronouncement.

(b) Talak- ul-biddat (For Sunnis only)

These particular kind of talak is though valid but sinful and is considered as one of the disapproved forms of talak. This kind of talak is common amongst the Sunnis in India and is of two types:-

                   i.           Three pronouncement of talak in one go or at short intervals within one tuhr. The pronouncement may be made either in one sentence or in separate sentence (like say I divorce thee, I divorce thee, I divorce thee)

                 ii.           Talak can even be pronounced even during tuhr by a single declaration of tuhr by showing a clear intention that the divorce shall become irrevocable instantly (like say I divorce thee irrevocably)

2. Ila (Vow of Continence)

Under this form of divorce a husband who has attained puberty and is of sound mind swears by god not to have any sexual intercourse with his wife for a period of four months or may be more or for an undetermined period. In case the husband continues to have sexual intercourse even after declaring ila, the ila is considered cancelled. However, the custom of ila is obsolete now.

3.Zihar (Injurious Assimilation)

Zihar is basically a divorce by unlawful comparison. Legally, it denotes a man equating his wife to any of his female relations within prohibited degrees, for instance, his mother or his sister and after the declaration his carnal connection with his wife is unlawful until he pays his wife for atonement or undergoes a fast by way of repentance

4. Khula (Redemption)

In khula the divorce is given at the instance of the wife. It is effected by a proposal from wife to compensate the husband provided he releases her from his marital rights, and acceptance by the husband of the offer. This is a divorce by mutual consent.

5. Mubara’at (Mutual Separation)

Mubara’at is also a kind of divorce by mutual consent where both the husband and the wife desires separation and here the wife is not required to pay any compensation as in khula. Moreover, after mubara’at the wife has to observe iddat and the husband is apprenticed to maintain her and his children by her during her iddat.

6. Li’an or Laan (False charge of adultery)

 In case the wife is charged with false adultery, she has the right to sue for dissolution of the marriage. Nevertheless, this provision is only for the innocent wives. So, if a wive has an illegitimate child the suit on this ground will be dismissed by the court.


TRIPLE TALAK IN INDIA

Triple talak has always been a subject of debate and controversy in India. Triple talak has always raised a question of justice, gender equality, human rights and secularism. The Government of India and the Supreme Court are involved in this debate too. Instant triple talak was deemed unconstitutional by the Indian Supreme Court on 22 August 2017. There was various debate upon the topic where three of the five judges in the panel declared the practice of triple talak to be unconstitutional whereas the remaining two declared the practice of triple talak as constituent while simultaneously requesting the government to ban the practice by enacting a law.


LEGAL BAN ON TRIPLE TALAK

After a very long discussion and opposition The Muslim Women (Protection of Rights on Marriage) Act, 2019 was passed on 26 July 2019. Triple Talak was made illegal in India on Aug 1, 2019. It qualifies that instant triple talak in any form is illegal or void and can lead up to three years in jail for the husband. The new law allows the women to demand maintenance for her dependent children.

This act was first introduced to Parliament in 2107 by the Government. There were many oppositions to such act and was sent to select community for scrutiny. The bill followed a 2017 Supreme Court which states that the practice of instant triple talak is unconstitutional and such divorce is considered illegal and void. The bill was welcomed by the Muslim triple talak petitioner Ishrat Jahan when presented.


JUDGEMENT

Shayarabano vs Union of India & others was the case related to this and the bench was made up of multi faith members which includes Chief Justice JS Khehar (a Sikh), and Justice Kurian Joseph (a Christian), RF Nariman (a Parsi), UU Lalit (a Hindu) and Abdul Nazeer (a Muslim). The Court examined triple talaq to see whether it has essential features of Islamic belief and whether it has protection of the constitution.

Where in 397-page ruling, two judges came up with the validity of triple talak and on the other hand three judges upheld that it was unconstitutional thereby barring the practice by 3-2 majority and among them one of the judge argued that Islamic law is violated by triple talak. The Central Government was asked by the bench to announce legislation within six months to govern marriage and divorce in the Muslim community and until then there would be injunction against husbands articulating instant triple talak on their wives


LEGISLATION

The Muslim Women (Protection of Rights on Marriage) Bill, 2017

After 100 of cases of instant triple talak in the country since the Supreme Court judgement in 2017, the Narendra Modi Government formulated a bill and acquaint it in the Parliament with the intention to make instant triple talak in any form illegal and void and could lead up to three years of jail for the husband. Well on one hand this bill was supported by Congress in the Lok Sabha by law ministers Ravi Shankar Prasad whereas on the other hand MPs from AIMIM, RJD, BJD, AIADMK and AIML opposed the bill mentioning it as arbitrary in nature and a faulty proposal. 19 amendments were moved in the Lok Sabha but none were accepted.

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018

Despite of Supreme Court striking the practice of triple talak, some parts of Islamic community continued the practice of instant triple talak. To make the practice illegal or void the Government issued an ordinance.

The provision for such ordinance are as follows:-

·        Instant triple talak remains cognizable with a maximum of three years imprisonment and fine.

·        Only complaint with the police by the wife or her blood relative will be recognised.

·        The offence is non- bail able i.e. only a magistrate and not the police can grant bail. Bail can be granted only after hearing the wife.

·        Custody of the minor children from the marriage will go to mother.

·        Maintenance allowance to the wife is decided by the magistrate.

On September 19, 2018 the ordinance was cleared by the President.

The Muslim Women (Protection of Rights on Marriage) Bill, 2018

 The Government introduced a new bill in the Lok Sabha on December 17, 2018 to replace the ordinance that was to expire on 22 January 2019.

The provision of the bill are as follows:

·        All declaration of instant triple talak in any form to be void or illegal.

·        Instant triple talak remains cognizable offence with a maximum of three years imprisonment and a fine. The fine amount is decided by the magistrate.

·        The offence will be cognizable only if the information relating to the offence is given by the wife or her blood relatives.

·        The offence is non- bail able but there is a provision that the magistrate may grant bail to the accused. The bail may be granted only after hearing the wife and if the magistrate is satisfied with reasonable grounds for granting bail.

·        The wife is entitled to subsistence allowance and the amount is decided by the magistrate.

·        The wife is entitle to seek the custody of her minor children from the marriage. The manner of custody will be determined by the magistrate.

·        The offence may be compound (i.e. stop legal proceedings and settle the dispute) by the magistrate upon the request of the woman against whom talak has been declared.

On 27 December 2018 the bill was passed by the Lok Sabha but the bill remained stuck in the Rajya Sabha because of the opposition’s demand to send it to a select committee.

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

The Government proclaimed the ordinance on January 10, 2019 as because the triple talak ordinance 0f 2018 was to expire on January 22, 2019. Moreover the triple talak bill of 2018 failed to be passed in Parliament Session. The ordinance was approved on January 12,2019 by the president of India Ram NathKovind.

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

 On 31st July 2019, The Muslim Women (Protection of Rights on Marriage) Act,2019 became law replacing the previous ordinance.




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