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Triple talaq logjam

Legislation proscribing triple talaq must be made law at the earliest, says R Mukhopadhyay.

R Mukhopadhyay |

Poet Dwarkanath Bandyopadhyay once lamented, “Alas! India may not rise until her daughters wake up”. To quote Kaviguru Rabindranath, “Nobody will confer on the women the right to conquer or create their own destiny”.

Yet, unlike in western countries, in India transformation of women’s status by reformation and legislation, though slowly, silently and in a subtle manner, was commenced by the efforts of men like Raja Rammohan Roy in the matter of Sati, Pundit Iswar Chandra Bandyopadhyay Vidyasagar in the fields of women’s education, widow remarriage, right to property, child marriage restraint etc. in Bengal; by Gopal Krishna Gokhale in the field of female education in western India and by some others in other parts of the country.

These reformatory endeavours centred around Hindu women only. But a sizeable portion of the female populace of the country is Muslim and for them development of the country will remain sectional. Unless these women are brought into the mainstream by placing them at par with their counterparts in other communities, notably the majority Hindu community, the Constitutional objective of assuring the dignity of the individual – man and woman – will not be achieved.

Sati, untouchability and similar pernicious practices have not only been abolished but by special legislation practice of these evil systems in any form has also been made punishable. Offences against Scheduled Castes and Tribes have been made triable by the Sessions Court for imposition of more severe punishments. These evil practices, though not found in ancient Hindu scriptures or practice or tenets, took deep roots in society because of degeneration in values, relationships and outlook. Thus, to uproot them from society, stringent laws with harsh penal provisions had to be provided in order to ensure emancipation of Hindu women.

There are similar fields also in the realms of marriage, divorce, succession and inheritance to property in the domain of Mohamedan Law which when placed on the touchstone of the Constitution and in the context of the codification of Hindu Laws on these subjects, will appear aberrations and contradictions. Legislators, in their pragmatism, should have long ago stepped in to these areas, but did not for fear of backlash.

There is triple talaq, or talaq-e-biddat, one of the most debated and talked about issues ever since the Hon’ble Supreme Court struck down the practice as unreasonable, arbitrary, inhuman and unconstitutional depriving Muslim woman of their right to equality and equal treatment, status and opportunity as against their male counterparts.

This was done in the landmark 3:2 judgment in the bunch of cases on the writ petition of Shayara Bano and some other women and organisations delivered on 22 August 2017. The Court directed the Union Government to step in and legislate to prevent the practice where Muslim women were denied the opportunity and treatment available to women of other faiths. To know the form, manner and implication of talaq we must know what it is.

Unlike Hindu marriage, a Mohamedan marriage is a contract and not a sacrament. In the contract, consent of both is an essential ingredient but in dissolution it is the husband who rules the domain. The dissolution of marriage may be effected in three different modes of (1) Talaq ahsan, consisting of a single utterance of the word “Talaq” by the husband on the wife any time in the period between two menstruations followed by abstinence from sexual intercourse for the period of iddat i.e. the period during which the woman is bound to remain in seclusion i.e. a period of three lunar months, if not above puberty or three courses, if she is subject to menstruation to ascertain whether she was/is pregnant at the time of talaq; if pregnant, iddat would get extended till delivery and if the husband dies leaving a pregnant wife, the iddat is extended up to 4 months 10 days or till delivery whichever is longer; (2) Talaq Hasan comprising three pronouncements of talaq one each in three successive periods of menstruation and (3) Talaq-ul-biddat under which in a single tuhr (menstrual period) the husband thrice utters continuously the sentence “I divorce (talaq) thee” “I divorce (talaq) thee” “I divorce (talaq) thee” or a single utterance of “I divorce (talaq) thee” indicating an intention to divorce irrevocably.

With the pronouncement in this mode the divorce becomes irrevocable without any option. There is no period or scope for cooling off even as in many cases this mode is pursued in a haughty manner or on unjust, unreasonable grounds such as wife’s failure to deliver a male child. The utterance need not always be made to the wife in her presence but may be made also through mobile or telephone.

Husband’s decision is supreme and unchallengeable.
If the husband divorcing in talaq- hasan or talaq-ul-biddat is repentant and the divorced couple decides to remarry, the wife will have to marry another man, get the marriage consummated and obtain talaq (divorce) from such second husband. If she becomes pregnant by such consummation she will have to wait till delivery or if the second husband refuses, the whole exercise may become infructuous. What a paradox leading to a travesty.

What is strange is that though talaq-ul-biddat was sinful it was lawful. Could it be God’s desire to declare something sinful as lawful, ask current-day reformers. The dogmatic believers’ answer may be anybody’s guess, but the pragmatic believers’ answer has to be obvious; the mist is to be cleared after placing the question on the touchstone of the Constitution.

It seems to be a package of anomalies. These anomalies in a democratic set up with equal rights and opportunities without gender bias have to be removed for achieving and promoting welfare of the people by securing and protecting as effectively as may be possible a social order in which justice social, economic shall inform all the institutions of national life, as has been enjoined in Article 38 (1) of the Constitution.

Clause (2) of the some Article calls upon the State to eliminate inequalities in status not only among individuals but also among groups of people residing in different areas. However contractual or secular or religious may a marriage in any system or society be, it is undeniable that it is a social institution of national life. But the existing system of talaq, particularly talaq-ul-biddat, does not conform to social justice of equal status and opportunity. Nor does this caprice protect the moral and mental health of the woman subjected to instant talaq by her husband.

This indecorous system through ages and centuries remained a tool in the oppressive hands of a male-dominated society and degenerated into a social malpractice. There had already been enlightenment in a substantial section of Muslim women who either individually or collectively mustered courage to fight and root out this system. Some of them were either personally sufferers or suffered for their sisters or daughters.

Some of these women are Shayara Bano. Aafreen Rehman, Gulsaan Parveen, Ishrat Jahan, Ataya Bibi and some of the associations formed by the enlightened spirited Muslim woman are All India Muslim Women Personal Law Board, Muslim Women’s Quest for Equality.

They filed six writ petitions before the Supreme Court in one of which, filed by Muslim Women’s Quest Equality, the Respondent was Jamiat Ulma-I-Hind and in all the remaining five Writs Union of India was one of the Respondents. The Petitioner Shayara Bano pleaded for a declaration that talaq-e-biddat pronounced by her husband to bring an end to the matrimonial tie was void ab-initio, that such a divorce which abruptly, unilaterally and irrevocably terminates the matrimony purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (in short called the Shariyat Act) is unconstitutional, that it is violative of the fundamental rights guaranteed to the citizens in India under Articles 14, 15 and 21 of the Constitution, that the practice does not come within the rights covered for religious denominations under Articles 25(I), 26(b) and 29 of the Constitution. It was further contended that the practice of talaq-e-biddat has been denounced and banned in almost all Muslim theocratic countries and also in non-theocratic countries with Muslim majority and therefore it is not sacrosanct to the tents of Muslim religion. Respondents filed their versions.

The Hon’ble Supreme Court heard all sides including the Union of India through counsel such as Mr Amit Singh Chadha, Mr Anand Grover, Ms Indira Jaisingh, Mr Nitya Ramakrishnan, Dr Ranjan Chandra, Mr Arif Mohammed Khan, Mr Kapil Sibbal, Mr Salman Khurshid for the petitioners or respondent and finally Mr Mukul Rohatgi, Attorney General of India for Union of India; considered different modes of talaq as already discussed hereinabove, with reference to the different Quoranic prescriptions and tenets of Hadith, extensively quoted in the judgment from the Holy Book on the issue; considered different legislations like the Shariat Act, 1957, Dissolution of Muslim Marriages Act, 1939, Hanafi Code of Muslim law, laws on the issue in theocratic States like Algeria, Iraq, Kuwait, Libya, Morocco, Sudan, Tunisia, UAE, Yemen, Malaysia, Pakistan, Bangladesh and Muslim majority secular countries like Egypt, Jordan, Lebanon, Syria, Indonesia, and non-Muslim majority States like Philippines, Sri Lanka, etc., and different judicial pronouncements on the issue and found that in all those countries talaq-e-biddat has been done away with and banned forever. The Court also considered the Universal Declaration of Human Rights and also extensively dealt with different provisions of Part III on Fundamental Rights and Part IV on the Directive Principles of State Policy and also foreign judgments on the issue.

The Supreme Court further held that Rashid Ahmed’s case decided by the Privy Council in 1932 upholding triple talaq under talaq-e-biddat as valid and binding requires a re-look after the enactment of Shariat Act in 1937 and in the context of judgments of different High Courts on the issue because the Shariat Act did not settle how the disputes relating to intestate succession, maintenance, dower guardianship, gifts, trusts and trust properties and wakfs were to be dealt with; had they been settled the matter would be different.
However, the Hon’ble J S Khehar, CJI with S Abdul Nazeer, J., upon consideration of the entire issue thought it fit to exercise the Court’s discretion under Article 142 of the Constitution to issue appropriate directions and accordingly directed the Union of India to bring about and enact appropriate legislation in respect of talaq-e-biddat in the context of the Shariat and till such legislation comes about, injuncted all Muslim husbands from pursuing talaq-e-biddat to divorce their wives at the first instance for the next six months and thereafter for ever if such legislation was enacted within that period.

Justice Kurien Joseph in his separate judgment expressly endorsed and re-iterated the law declared in Shamim Ara’s case as the law for banning triple talaq agreeing with the view that Shamim Ara’s case deprecated triple talaq as it was opposed to the tenets of the Holy Quoran and, therefore, it cannot get approval of Shariat. Article 25 empowers the State to frame laws to regulate, amongst others, any secular activity associated with religious practice and provide for social welfare and reform. Justice Joseph differed from the Hon’ble CJI’s opinion that triple talaq is an integral part of Muslim religious practice. He further observed that long usage by itself cannot make it valid when it is otherwise, particularly under the Quaran, invalid.

After the 1937 Act no practice against the tenets of the Quaran is permissible and, therefore, there cannot be any constitutional protection to the practice of triple talaq. When religious issues of such nature are pitted against other Constitutional rights legislative measures with harmonisation of interests in view is the course to be adopted. His lordship, however, retrained from issuing any directive to the State. Accordingly for his lordship “what is bad in the Holy Quoran cannot be good under the Shariat and so what is bad in theology is bad in law as well.”

In a separate judgment, the other two Hon’ble judges, RF Nariman and UU Lalit, JJ observed that since Triple Talaq is instant and irrevocable as soon as it is pronounced thrice, there is no scope for reconciliation and it is manifestly arbitrary but valid even without any reasonable cause which cannot be the law after Shamim Ara’s case. It is capricious and whimsical and self-serving for Muslim husband without any scope to save it. It is, therefore, violative of the fundamental right guaranteed under Article 14 of the Constitution and therefore the 1937 Act insofar as it seeks to recognise and enforce triple talaq is a law in force under Article 13(1) of the Constitution and must be struck down as being void to that extent. Section 2 of the 1937 Act was thus struck down.

With the Supreme Court having handed down the weapon in clear and unambiguous term for appropriate legislation on the issue, the Government, being emboldened, introduced and got passed by the Lok Sabha the historical Bill – The Muslim Women (Protection of Rights on Marriage) Bill, 2017. It is now before the Rajya Sabha. There is an argument of the proponents of triple talaq that the penal provisions of the Bill will do more harm than good to women – conciliatory measures must be provided for in the Bill. But we should be mindful of the penal provisions in the SATI Act or other reformatory legislations on the Hindu System. Polygamy amongst Hindus has been abolished and made a punishable offence.

There has been raised by some political parties, opposed to the party in power at the Centre, a demand to send the triple talaq Bill to a Select Committee and thereby to shelve it. Tragedy of Shah Bano may then repeat. That judgment was epoch-making in the judicial history of India. Let us hope that the party at the Centre will not be cowed down by the street demonstration and slogans against the judgment and Bill as had happened in the case of Shah Bano whereby the then party in power at the Centre reversed the fruitful effect of the judgment by legislating Muslim Women (Protection of Rights on divorce) Act, 1986 and limited the husband’s liability to pay maintenance only for the period of iddat and thereby for ever sealing the financial fate of the hapless destitute Shah Bano.

Political vote bank interests of the parties may, as the Hon’ble Supreme Court implored, be kept apart in greater interest of the nation, national integration and the society. Let political sagacity, bereft of obstinacy, and constitutional pragmatism without unreasonable obduracy play their timely role on the issue. Let it be a slow and steady step in achieving the oneness in unity of the nation.
Muslim Women have been already raising their voice against the obnoxious and derogatory system of nikah halala and other practices. Their voice cannot be any more stifled in the face of this success.

The writer retired from the West Bengal Higher Judicial Service and is a former District Judge.