IT ALL COMES DOWN TO 3 WORDS: TALAQ, TALAQ AND TALAQ (Triple Talaq)

One of the landmark judgments this year was the Apex Court’s decision invalidating the practice of Triple Talaq on the ground of it being unconstitutional. It was hardly a week or so, a newspaper headline quoted “Muslim body of Barelvi Sunni Muslims in Uttar Pradesh has asked madrassas to include Triple Talaq in the syllabus.” The reason given by the Organization was that the parents fear telling their kids about the practice fearing it to have a detrimental effect on their child. The question whether making the practice more overtly visible to kids of a tender age will do some good or not is yet to be found out which at the present moment is attracting a lot of criticism from the parents.

SHAYARA BANO V. UNION OF INDIA

This case popularly known today as the “Triple Talaq case” has challenged the constitutional validity of some Muslim Personal Law practices like triple talaq, nikah halala and polygamy.

The Supreme Court in its judgment has quashed the practice which is about 1400 years old as gender discriminatory and also violating the Right to Equality as enshrined in the Constitution of India, 1950.

In this case, Shayara Bano, the petitioner approached the court after her divorce with her husband, Rizwan Ahmad in 2015. Her husband in the presence of two witnesses uttered the word talaq three times and said that from that day their relation as Husband and wife ceases. Shayara aggrieved by this, challenged Section 2 of the Muslim Personal Law (Shariat) Application Act 1937 as unconstitutional which permits the unilateral and irrevocable termination of the ties of matrimony. Section 2 talks about the Application of Personal Law to Muslims in the field of succession, matrimony and dissolution of Marriage etc.

The most striking feature of this judgment was that the impartiality in the decision making process can be traced by the fact that the five judge bench which gave the verdict belonged to different faiths. The 5 judge bench held the practice of Talaq-e-biddat as unconstitutional by a majority of 3:2 different opinions after hearing seven petitions where women complained of their dissolution of marriage on whatapp and on facebook. While on one hand, Justice Kehar and Justice Abdul Nazeer favoured on putting a hold on the practice and asked the government to frame laws for the same, Justice RF Nariman, Justice Kurian Joseph and U.U. Lalit held it as violative of the Constitution. But what was unanimous was that the bench held this practice as “the Worst and undesirable way to end marriage.”

IS TRIPLE TALAQ REALLY UNCONSTITUTIONAL

The answer is NO. The Supreme Court has only banned instant triple talaq and declared it to be unconstitutional and not “Triple Talaq” per se. Thus, a difference between the two has to be clearly demarcated. While on one hand, instant Triple Talaq or talaq-e-biddat happens by the three times uttering the word “talaq” in one instance through phone, messages or e-mail or normal sitting. In the other form of talaq i.e. talaq-ul-sunnat, the husband can say the word ‘talaq’ once and then say it the second time only during the next lunar cycle till then the women prepares herself for the “iddat” period.

Talaq-e-biddat is usually irrevocable and if the husband wants to reconcile later then it could only be done through nikah-e-halala in which the women should consummate her second marriage, then get divorced and after following three months of iddat period can return to her husband which actually seems to be more of a punishment to Muslim Women instead of reconciliation.

CONSTITUTIONAL VALIDITY

The practice of Triple Talaq puts into question three of the most important Fundamental Rights of a citizen namely Right to Equality, Protection against discrimination and Right to life and Liberty as enshrined in the Indian Constitution under Article 14, 15 and 21 respectively. The decision can also be credited for making a step closer towards the Uniform Civil Code under Article 44 which mandates the replacement of personal laws which are based on customs and scriptures with a uniform set of rules that govern every citizen.   

It is to be noted that the provisions of the 1937 Act (Section 2) would be hit by Article 13 to the extent of the inconsistency with the Provisions under Part III of the Constitution. Thus, instantaneous Triple Talaq practice if violated any constitutional provision would be void which was also put forth by Justice Nariman. 

IS TRIPLE TALAQ AN ESSENTIAL PART OF MUSLIM LAW

Article 25 of the Indian Constitution only protects “vital” or “essential” aspects of religion and hence, it is quite essential to find out whether the Muslim Personal Law Board's contention on Triple Talaq saved by the constitutional provision or not becomes of prime importance. Salman Khurshid, a senior advocate assisting the court suggested that this practice was optional and the women had the right to stipulate in her “nikahnama” that the husband could not have the right to dissolve marriage by triple talaq making it clear that this practice doesn’t form the core of the Shariat Law and hence no claim for protection under Article 25.

CONCLUSION

This verdict on declaring the practice of Triple Talaq is undoubtedly going to ameliorate the condition of Muslim Women by protecting them against the unilateral dissolution of marriage and shows that no matter how old a custom or practice is, it would be vitiated in case it violates the basic tenets of Human Rights and is definitely a step towards achieving Uniform Civil Code in the country.