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TRIPLE TALAK AND THE NEWLY FORMULATED LAWS

TRIPLE TALAK AND THE NEWLY FORMULATED LAWSTriple 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·        LegislationWHAT 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 TALAK1. (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 repentance4. 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 INDIATriple 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 TALAKAfter 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. JUDGEMENTShayarabano 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 wivesLEGISLATIONThe Muslim Women (Protection of Rights on Marriage) Bill, 2017After 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, 2018Despite 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, 2019The 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.

Posted By

Neha Roy

2 weeks ago

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ARTICLE ON TRIPLE TALAQ

Talaq(divorce)Marriage is one of the most significant things in a person’s life which binds an individual into one but sometimes it becomes difficult to continue that marriage and people search for relief, then their comes talaq or divorce, a solution through which a person can break the bond and live separately.Talaq means ‘repudiation’ of marriage. Talaq is not liked by the almighty and he discourages it, talaq is a sin which is unforgivable in the eyes of Allah. However, in some situations it becomes impossible to continue the marriage between the husband and wife and it is only then that the Holy Quran provides the procedures to be followed for the dissolution of marriage in a generous manner that too with a possibility of revocation of the same. DISSOLUTION OF MARRIAGE PRACTICE BY MUSLIMS:-Dissolution of marriage means “putting the marriage to an end”. There are two legal ways to end a marriage.·       Divorce, governed by Dissolution of Muslim marriage Act 1939,·       Talaq, governed by Muslim personal lawsTalaq or dissolution of marriage is a process by which the marital relationship between the two parties comes to an end.CONCEPT OF TALAQ It was declared by the prophet that talaq is the worst thing in Islam permitted by law. It must be avoided as far as possible, but in some cases or situations it becomes a necessity. When it is not possible for the parties to continue their marriage with mutual understanding, trust and love it is better to allow them to end their relation. The basis of divorce in Islamic law is the inability of the parties to stay together rather than any specific cause on account of which the parties cannot live together.Either party of the marriage is allowed to initiate the process of talaq. There must be a valid reason for the purpose of talaq. Muslim females have only delegated rights and can purchase the same by way of khula Both Sunni and Shia law recognize talaq with certain differences in practice. There are several kinds of talaq under the Muslim law, which will be discussed hereafter.MODES OF TALAQ Talaq can be categorized under three categories, i.e. Talaq by a Muslim Man, Talaq by Muslim Woman and Talaq by Mutual Consent. Talaq by Muslim Men • Talaq ul Sunnat ~ ( Talaq – Ahasan and Talaq – Hasan) • Talaq ul Biddat ~ (TripleTalaq) • Ila • Zihar Talaq ul Ahasan is the most approved form of Talaq. In this Talaq, man makes single pronouncement of Talaq to his wife during the Tuhr period (Purity period during menstruation cycles). After the pronouncement of Talaq, wife goes for Iddat period of 3 Months. During this Iddat period, husband can revoke Talaq expressly or impliedly by having sexual intercourse with his wife. Under Shia law witness to the pronouncement and Intention of husband are important, however under Sunni law No witness are required and even Talaq pronounced by Mistake is acceptable. Talaq Hasan is a type of Talaq in which husband pronounce Talaq successively during three Tuhr period of wife. There must be clear intention on the part of the husband. Husband is abstained to have sexual intercourse with wife during the Iddat period, practiced by wife during the Talaq period.Talaq ul Biddat is the most common type of Talaq which is also known as Triple Talaq. Prophet does not approve this form of talaq, Muslims always believes in the concept of reunion. However, talaq ul biddat is irrevocable and hence there is no chance of reunion of marriage. The complete three pronouncements are given at a single time and the marriage gets over without any period of cooling down. Triple talaq was always condemned according to quaranic perception as it is very harsh and rigid. Shia schools do not even recognize this type of talaq. It is only recognized under Sunni law which considered it as a sin.ILA is also known as constructive divorce. In ILA the husband takes an oath not to have a sexual intercourse with his wife. It is believed that if a man is able to control is sexual urges against his wife for four months, he is entitled to have divorce with her. Marriage dissolves irrevocably.Zihar is a type of Talaq in which a husband compares his wife with his mother or any female in prohibited degrees. After such a comparison the husband does not cohabit with his wife for a period of four months. After the expiry of this period zihar is complete and the marriage gets over. Talaq by Muslim Women • Talaq e Tafweez – It is also known as delegated Talaq, in which husband delegates his power to give Talaq to any third person or to his wife. Wife can give Talaq to herself whenever she wants to dissolve the Marriage. Talaq by Mutual Consent • Khula-wife can repudiate her marriage by the process of khula, she can give an offer to her husband with some consideration usually it is mahr the whole or part of it, but it may be any property though not illusory. If the offer is accepted by the husband he is bound to give talaq to his wife.• Mubarat- mubarat is a mutual agreement between the parties through which they can repudiate their marriage. There is no consideration involved in it. The intention must be clearly expressed for the repudiation of the marriage.TRIPLE TALAQ:- TALAQ-UL-BIDDAT which is popularly known as triple talaq or instant talaq. Triple talaq is the most crucial form of talaq and it was not approved by prophet. Muslims believes in reunion of marriage and triple talaq is irrevocable it did not give chance of reconciliation. Triple talaq is pronounced three times in one sitting and did not give chance of taking back your wife once you pronounce it. Triple talaq is prohibited according to quran and it is a sin as it is a very harsh and rigid form of talaq. Sunni school recognizes this form of talaq but it is a sin and according to shia school this form of talaq does not exist. It is a form of talaq which empowers Muslim men to give talaq to his wife in any form whether it is written, oral or in a modern style by the use of internet/electronic form.TRIPLE TALAQ ACCORDING TO THE HOLY QURAN:There is no conceptualization about triple talaq in Islam. According to Quran after a second talaq a man can retain his wife or split up. The constant of triple talaq or instant talaq is not mentioned in the book of Holy Quran anywhere.The pronouncement of three talaq in one sitting is a misconception; this form of talaq is not mentioned anywhere in the Quran who allow a man to terminate his marriage by way of triple talaq as we all know that instant talaq is irrevocable and quran do not prefer it as prophet believes in the reunion of marriage, triple talaq is nothing but a scorn to the laws. The holy Quran mentioned the principles for talaq and marital accolade in surah nisah…4:35…. (…quote…)In this ayat of surah nisah, Allah clearly asks for arbitration and reconciliation with the help of relatives. Hence, it is clear that no talaq can be effective without their interference, whether given one, twice, thrice or thousand times.The surah talaq verses 1-12 (…quote…)Thus, the fact is proved from the above mentioned surah that the concept of triple talaq does not exist in the Quran. Triple talaq was introduced by umar caliph and it is not mentioned anywhere in Quran.The caliph and the scholars who initiated triple talaq in one sitting (without arbitration, reconciliation and the conditions written in the Quran) need to know the laws that Allah has made. People should follow the guidelines that Allah has shown through the mode of Quran not the laws which was the creation of caliph and scholars.TRIPLE TALAQ IS ILLEGAL:The supreme court of India declared talaq-ul-biddat or triple talaq unconstitutional in august 2017.Triple talaq means pronouncing of the word talaq thrice in one go but the actual triple talaq or divorce in Islam pronounce over three sittings. Therefore, Supreme Court declared instant triple talaq as invalid.After that the government has amended the Muslim women protection of rights on marriage bill and has brought a fresh bill to outlaw instant triple talaq.DIFFERENCE BETWEEN INSTANT TRIPLE TALAQ AND VALID TRIPLE TALAQ:Instant triple talaq OR TALAQ-UL-BIDDAT is a form of talaq which is very cruel and rigid, it is a form of talaq in which a Muslim man pronounce the word talaq three times in one sitting to his wife. It was banned in many Islamic countries but the Indian Muslims still practiced it in India. With the development of technology, many Muslim men who wanted to repudiate their marriage without any reasonable cause took advantage of it and verbalize talaq three times in one go over the phone or via message to divorce their wives.Social websites like Emails, Skype, Face book and WhatsApp messages also played a very important role in damaging the life of the helpless women, by using the social websites many Muslim men divorced their wives without thinking that how it will destroy the life of the women and their children.Triple talaq got validation from some Islamic jurists who declared it as a correct form of talaq, they called it irrevocable.The conditions of instant triple talaq is too harsh that even if a man regretted or felt guilty after uttering the word talaq three times in one go and wished to take back his wife or give a chance to his marriage , he was not allowed to do so. The Islamic jurists insisted to go through Nikah halala if a man to take back his wife again in his life.Nikah halala means the women has to marry another man and after that she have to consummate the marriage and then she can ask for talaq from her new husband with his consent, after securing divorce from her new husband, the women is required to wait for a period of three months which is known as iddat. Only after the completion of this whole process the women become pure and thus allowed for remarriage.However many other Islamic jurist who have read the holy Quran properly has condemned triple talaq saying that it is not mentioned anywhere in the Quran or hadith.WHAT IS VALID TRIPLE TALAQ?TALAQ-UL-Ahasan is the most approved form of Talaq. In this Talaq, if a man has efficient reason to talaq his wife he then makes single pronouncement of Talaq to his wife during the Tuhr period (Purity period during menstruation cycles). After the pronouncement of Talaq, wife goes for 3 Months of iddat period. During this Iddat period, husband can revoke Talaq expressly or impliedly by having sexual intercourse with his wife. At the expiry of the period of iddat the man pronounces the word talaq third time then the divorce is complete.Divorce is considered complete even if the man does not spell the word 'talaq' for the third time provided he does not revoke talaq after iddat expressly or by impliedly. Now duly pronounced triple talaq is final and irrevocable.INSTANT TRIPLE TALAQ BILL WAS INTRODUCED BY GOVERNMENT OF INDIA:After Supreme Court declared instant triple talaq as unconstitutional in august 2017. The government started preparing a bill with the help of an inter-ministerial group headed by home minister Rajah Singh which stated instant triple talaq as illegal and void no matter in what form a person has given it for example- oral, written or in any electronic form.The bill provides a jail term of three years to the husband who pronounced instant triple talaq to his wife.The bill is known as the Muslim women protection of rights of marriage bill 2017.IMPORTANT POINTS MENTIONED IN THE BILL:·       A Muslim man who will use instant triple talaq as retort would be jailed for three years.·       The custody of the minor children would be granted to the affected women.·       According to the bill if a person utter the word talaq to his wife in any manner whether it is oral, written, or by using an electronic media shall be considered as void and illegal.·       The divorced women will be entitled to maintenance.·       The offence committed under the purview of this bill will be non-bailable and cognizable.QUESTIONS AGAINST THE INSTANT TRIPLE TALAQ BILL:·       Supreme Court already declared triple talaq as unconstitutional to protect the rights of Muslim women in the case of shayara bano.·       After the judgment of the Supreme Court the effect is that the marriage is legally valid and the persons continue to be lawfully wedded, so there is no necessity of criminalizing the practice of instant triple talaq.·       According to law Muslim marriage is a civil contract so; the procedures to be followed should also be of civil nature.·       The government should protect the women by providing them economic and socio-legal support.·       The women can use the provisions like domestic violence act 2005 and section 498A of the Indian penal code if there is violence within the marriage in addition to the pronouncement of instant triple talaq.·       Any blood relative of the aggrieved women or any member related to her by the marriage can filed a complaint against the husband, there is no provision given for the consent of the women before filing a complaint by their relative hence, if the marriage is inter-caste then the other party can take advantage of it and the Muslim man will become a target.·       The terms of imprisonment up to 3 years are arbitrary and harsh. The crimes like rioting, causing death by negligent act etc are punishable by 2 years in jail or fine or both. All this crimes have lesser punishments than pronouncing instant triple talaq.These questions were asked by the women rights activist who opposed the bill.The bill was passes by the lok sabha in 2018 by majority votes.LEADING CASES RELATED TO TRIPLE TALAQ:SHAYARA BANO AND OTHERS V. UNION OF INDIA AND OTHERS, WRIT PETITION.A.S. PARVEEN AKHTAR VS. THE UNION OF INDIA, ON 27TH DECEMBER 2002.SHAHID AZAD VS. UNION OF INDIA ON 28TH SEPTEMBER 2018.AIMS OF TRIPLE TALAQ ACCORDING TO QURAN:Instant triple talaq is not mention in the Quran; talaq is not like by the almighty but if the situation becomes toxic for the partners then they can dissolve their marriage by way of valid triple talaq which gives chance of reconciliation.The aimed of valid triple talaq is to enhanced the chances of reconciliation by resolving their disputes. It gives time to the man to cool down and take his wife again into the marriage by expressly or impliedly.The people who are ignorant of this form of talaq and instead performed instant triple talaq are sinners in the eye of almighty.DISSOLUTION OF MUSLIM MARRIAGE ACT 1939:According to dissolution of Muslim marriage act 1939 a Muslim woman can seek for divorce from his husband through reasonable grounds for example- if the wife is suffering from cruelty, if the husband is impotent, if the husband is not known or heard about for the period of seven years, if they are living separately for more than 2 years etc but the grounds should be proved by the woman in the court of law and the judge will decide the matter and passed the judgment whatever he deems fit.CONCLUSION:Considering the fact that the triple talaq is not Islamic and it has no place in Islamic laws, most of the Muslim countries banned triple talaq a long time ago, but it is used by Indian Muslim men and they misuse the power of talaq without any valid reason.With passing days it is becoming the most common way to part ways by the process of triple talaq in some cases women don’t even know that what is the cause of the talaq, men took advantage of the triple talaq to terminate their marriage without the consent of other party. Anger is also one of the causes of divorce in most of the cases.Both men and women should enjoy equal rights and opportunity in the society. With the changing of the time the religious practices and laws are also needed to be changed. Our society should understand the importance of equality, and accepts the defaults.India is home to world’s third-largest Muslim population which is governed by the Sharia or Islamic jurisprudence and this has been the case since British colonial rule. But till, today, India’s Muslim women are facing the threat of a sudden, oral, and out of court divorce.According to Muslim personal law there are many forms of talaq by using it a man can terminate the marriage but the options for women is very limited she can end her marriage only if the husband delegate his rights or by way of mutual consent. Many men took advantage of the laws and misused it for their personal motive.India is a secular country and Indian Muslims are a part of this country so if the government passed any bill for the betterment of the society or for the betterment of Muslim women’s conditions then what is wrong in it. There are women who were the victims of the instant triple talaq but either they kept their mouth shut or people made them quiet by infiltrating fear of Allah as many of the woman are illiterate or because of societies pressure they accept this injustice as their fate, but now the scenario has changed woman know their rights by the advancement of technology, they want equal rights and they have raised their voice against the cruel instant triple talaq.As a country we should think about this issue and solve this problem, after facing lots of difficulties and hurdles finally the woman come forward and ask for the justice. There are loopholes in the bill but we can make it better instead of fighting and making it a religious issue. Three years of imprisonment is harsh but there is always an alternative we can ask the government to make the imprisonment three years or fine. There is always a way to end the evil but we have to act as a one nation.

Posted By

sahista aslam

6 months ago

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Pune
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Experience: 29 Year(s)
Senior Lawyer
Vijayawada
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