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17-min read

Understanding Triple Talaq

With SC now declaring the practice of triple talaq as invalid, there are questions left unanswered around the verdict and its applicability.

Debayan Roy | News18.com

Updated:August 22, 2017, 10:49 PM IST
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Understanding Triple Talaq
Muslim women walk at a market area in New Delhi on Tuesday, August 22, 2017. The Supreme Court on Tuesday struck down the triple talaq Muslim practice that allows men to instantly divorce their wives as unconstitutional. (AP Photo/Tsering Topgyal)
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New Delhi: Thirty-three years after the famous Shah Bano verdict, it was for the first time that the Supreme Court had ventured into the territory of Muslim personal laws. This case was more significant as it was result of a public interest litigation and with the SC taking suo motu cognizance of the issue.

With SC now declaring the practice of triple talaq as invalid, there are questions left unanswered around the verdict and its applicability. News18 tries to dissect a few:

So what has the verdict actually spoken about?

The 395-page verdict, divided in three parts, has the majority verdict as well as the minority judgment. The first part has the minority verdict by Chief Justice of India JS Khehar and Justice Abdul Nazeer. The second part is the lone verdict which forms a part of the majority by Justice Kurian Joseph and the last part has the verdict by Justice Rohinton Fali Nariman and Justice UU Lalit.

The majority verdict has ruled that triple talaq in one sitting is not constitutional and must be struck down. The majority has put an end to the practice of instantaneous triple talaq and has called it 'manifestly arbitrary' in the sense that marriage can be easily severed whenever a man wishes to do so. The judges have also noted that this severance of ties can happen most of the times without attempting any reconciliation. Hence the verdict held the practice to be violative of Article 14 of the Constitution of India. The three judges have also noted that Talaq-e-Biddat has no sanction in Quran, and hence, is not a part of Islam. So, essentially, it is only Talaq-e-biddat or Instant Talaq which has been struck down and Talaq e Hasan or Ehsan as a whole which mandates a gap of nine months before pronouncing the third talaq has been kept safe, untouched.

On the other hand, the minority verdict by CJI Khehar and Justice Abdul Nazeer rests on the fact that the practice of instant talaq forms a part of the 1400-year old faith of Muslims. The court has noted that triple talaq does not violate Article 25 of the Constitution and since it is a "component" of personal law, it has the constitutional protection. The court has also refrained to enter into the domain of personal laws as it is a "matter of faith."

Who all are covered under this verdict?

All the Muslims come under the ambit of this verdict. Every Muslim marriage is a contract and is based on offer and acceptance on both the sides. Hence, whoever contracts a Muslim marriage will come under the purview of this verdict.

Can a man still pronounce triple talaq and divorce a wife?

Nikah (Marriage), Talaq (Divorce) are still issues which are personal in nature. Now, if a man pronounces three talaqs in one sitting to his wife, then there are two repercussions.

First, wife can choose to ignore the utterance and continue living in the matrimonial house as the wife and claim benefits as the verdict rules that what is bad in theology cannot be good in law. Hence, the wife can opt to say that triple talaq in one sitting is no more valid and thus the matrimonial bond remains intact.

Second, if the woman is thrown out of the house or maltreated after the husband pronounces the three talaqs, the woman can very well file a criminal complaint against the husband under the sections of domestic violence and harassment. But if the crux is divorce, then the action of the husband can be challenged in the court where this judgment by the constitution bench would weigh in heavily in the favour of the aggrieved wife.

Hence, in essence, the man can still pronounce triple talaq in one sitting, but if one decides to challenge it in the court, then this verdict will favour the victim.

Why can't a husband be penalized if he pronounces the instant talaq, after all it's a Supreme Court judgment?

Is it the first time that the Supreme Court has ventured into the territory of Muslim Personal law, especially relating to triple talaq? No. It is not. Earlier in the Shamim Ara verdict, too, the Supreme Court had ruled that triple talaq in one sitting was unconstitutional. However, in that case, the judgment was an obiter (not the one that was prayed for) but in this case, the court had taken suo motu cognizance of the matter.

So, just a verdict cannot penalize the man for pronouncing triple talaq, but a legislation can. Here comes the suggestion of the minority verdict that the Union of India bring in a law to regulate the practice of triple talaq within six months. But this suggestion is not binding on the government as it is not a part of the majority verdict. However, if a law is ushered in, thereby, making pronouncing triple talaq a penal offence, just the way polygamy is a penal offence under Hindu Marriage Act, then only the verdict will translate into proper penalty without the woman having to approach the court to claim her rights as a married woman.

A law would also instill a sense of fear in a Muslim man to refrain from pronouncing triple talaq in one sitting and disassociating himself from the woman as her husband.

Why did the Chief justice dissent? What was the basis of his verdict?

It is rare for a Chief Justice to give a dissenting verdict in a landmark constitutional case.

CJI JS Khehar first stated that practices like polygamy, devadasi system, and Sati were outlawed by way of legislation and not by the judiciary, and hence, does make a valid comparison the issue of instant talaq at hand. Second, it is stated that triple talaq has been in "vogue" since the last 1400 years and that the practice was a valid practice in law. CJI has considered the practice to be an integral part of the Sunni faith of Islam and has held it not to be violative of the exceptions to Article 25 of the constitution, which is namely, Public order and morality.

Triple talaq has also been explicitly held a part of Muslim personal law. "We are of the view that the practice of 'talaq-e-biddat' has had the sanction and approval of the religious denomination which practiced it, and as such, there can be no doubt that the practice is a part of their 'personal law'," reads the verdict by CJI Khehar and Justice Abdul Nazeer.

Was the verdict based purely on law or did it have religious connotations as well?

One of the primary reasons why the verdict is being talked about is because even though the case rests on the pedestal of constitutional rights and morality, the majority verdict has been comfortably beefed up with texts from not only the Quran but also hadiths (prophetic sayings) and its on the basis of this, the court has called the practice not only unconstitutional but also un-Quranic.

Firstly, Justice Kurian Joseph has quoted Surah-at-Talaq at a number of places in his verdict. It is worth remembering that Arif Mohammad Khan, while making representations for one the petitioners, had passionately argued on the basis of the Quran that the practice of triple talaq had no legal validity.

Justice Joseph has given reference to talaq in three Surahs, which are Surah II - dealing with social life of the community, then in Surah IV - dealing with decencies of family life and in Surah LXV - dealing explicitly with talaq. The verdict also cites hadiths and it is after a detailed enumeration of these sources that Justice Joseph comes to the conclusion that what is bad in theology cannot be good in law.

Even Justice Nariman and Justice UU Lalit noted that this practice has no sanction in the Islamic law, especially the Quran, and hence, deserve to be struck down. The verdict has made a comparison between the various sources of Islamic law and accorded Quran, a status higher than that of the Hadiths, Ijma, etc.

But disagreeing with this approach, the minority verdict judges have refrained to indulge into the arena of hadiths and examination of religious texts stating that it was a domain for religious scholars to ponder upon and not the judiciary.

Is it mandatory for the government to enact a law on Talaq within 6 months?

No, it is not. Chief Justice of India JS Khehar and Justice Abdul Nazeer have suggested that the government bring in a legislation to regulate triple talaq within six months, and until then, an injunction or a stay on talaq-e-biddat would be in place. However, since such a recommendation finds no mention in the majority verdict, it is not mandatory for the government to follow the SC diktat.

However, there are high chances that the government could bring a law to regulate the practice, since the then Attorney General, Mukul Rohatgi, on the instruction of the government, had submitted before the court, in May, this year, that if triple talaq was abolished, the government will be happy to bring a law that would ensure gender justice.

Some Common Question Answered on the Religious Aspect of Talaq and several kinds of it

Question: What is triple talaq?

Answer: First, before understanding what triple talaq is, we must understand what a 'Nikah' (Marriage) stands for in Islam. Nikah is essentially a contract laid down in a ‘Nikahnama’ drawn between the husband and the wife. This contract can have conditions and has a compulsory 'consideration' (Meher) to be paid at the time of the marriage. This consideration is paid by the man to the wife, and can be at times waived off by the woman as per her own will. So, the basic difference between a Hindu Marriage and a Muslim Marriage is that for Hindus, marriage is a divine sacrament whereas for Muslims, it is contract drawn between the husband and the wife.

So to explore the question of triple talaq, one must understand that in Islam, everything is followed as per Sunnah (Deeds of the prophet). Hence, most Muslim women bodies opposing 'triple talaq' want the Muslim bodies to adopt 'Talaq-e-Sunnah' (Divorce as per the Prophet's sayings and Quranic dictation) and discard 'Talaq-e-Biddah' (Divorce as per a later formed mode of divorce which propagates instant divorce).

Question: What is Talaq- e-Sunnah?

Answer: According to the Prophet’s sayings, giving talaq to a wife in a fit of rage or anger is strictly prohibited. The Quran advises the husband to settle the differences through a mutual conversation as the first step. This step is known as the Fa'izu Hunna. If the differences continue between the husband and the wife, the parties should refrain from any conjugal acts till they settle their dispute. This step of physical separation known as the Wahjuru Hunna is prescribed so that the couple re-unites. However, even if this second step fails, it is recommended that the husband must attempt to talk to the wife, make peace with her and talk about the gravity of the situation. This third step is known as the Wazribu Hunna. However, Quran advises that even if the third step fails, the fourth step of 'arbitration' must be followed. In this step, a member from each of the spouses' family is present and the parties try to make amends in the strained relationship.

It is only after all these four steps have failed that a husband pronounces the first talaq. The husband has to compulsorily wait for a wife's iddah (menses) to complete before pronouncing another talaq. Not more than two talaqs can be pronounced during the course of iddah. Iddahs are considered to be the three monthly courses. During these three month cycles, a man cannot give his third talaq. This had been envisaged so that the couple sorts out their differences in this period. Quran prescribes that if a woman has attained the age of menopause then the period of iddah is three months, whereas if a woman is pregnant, then the period of Iddah would be till the child is born or the termination of pregnancy.

If the differences still persists then the third talaq is pronounced, after which the relations between the husband and the wife are severed. Hence, the women groups who are claiming to revive this practice are only vouching for the fact that they get the maximum time to sort out their differences which is often not possible in an 'instant talaq'.

Question: What exactly is this 'instant talaq'? How is it different from Talaq-e-Sunnah?

Answer: This instant talaq is essentially 'Talaq-e-Biddah'. 'Biddah' means innovation and essentially all Muslims are advised against introducing 'biddahs' in their religion. This practice of talaq was first promoted by Caliph Umar, and is staunchly opposed by all the petitioners who have approached the Supreme Court for a reform in the case of triple talaq. However, the Muslim Personal Law Board has not still spoken up on the issue and claims that this can be sorted out internally. Dr. Asma Zehra, an executive member of the All India Muslim Personal Law Board, was questioned about this during a recent press conference and said, "We have left it for our Ulema (scholars) to decide what is best for us." However, this answer is far from the truth, as something which is not mentioned in the Qur’an or is a part of the Sunnah can never be justified as a lawful act by a Muslim.

Question: Can a man marry his wife after pronouncing the third talaq?

Answer: No. After the third talaq, a woman is supposed to marry another man, consummate the relationship, and only after following the original procedure of Talaq-e-Sunnah, will she be able to marry the former husband again. This practice is known as the ‘Nikah Halala’, and many Muslim women have condemned this practice as barbaric and it assumes more importance, in case the talaq is given as Talaq-e-Biddah. Women have often described it as a barbaric practice and there are demands to abolish this practice.

Question: Do the women have any right to divorce the husband in Islam?

Answer: There are broadly two methods under which a wife can claim divorce. One is Talaq-e-Tafweez and the other is Talaq-e-Khula. Under Tafweez, the husband ‘may’ delegate his power to give talaq to his wife or any third party. This right has to be in the form of a contract with conditions, like, ‘if a man marries again’ then there can be a divorce, etc. But a contract will not be without conditions or be absolute.

The second one is Khula. This is a divorce which is at the 'request' of the wife. In this case the woman has to make an offer of divorce to the man. The man must accept the offer with consideration, which often means the woman, has to give back the Meher taken during marriage. After these two steps, a Khula is granted. The woman often approaches a qazi-court as well to demand a Khula from the man. There needs to be an execution of a Khulanama.

But something which needs to be broadly observed is that in both the cases, it's only a request or a husband's wish to draw up a contract to give the wife an option to divorce him. Thereby, putting the husbands first, and somehow lacking in achieving gender equality in this regard.

It is only after all these four steps have failed that a husband pronounces the first talaq. The husband has to compulsorily wait for a wife's iddah (menses) to complete before pronouncing another talaq. Not more than two talaqs can be pronounced during the course of iddah. Iddahs are considered to be the three monthly courses. During these three month cycles, a man cannot give his third talaq. This had been envisaged so that the couple is able to sort out their differences in this period. Quran prescribes that if a woman has attained the age of menopause then the period of iddah is three months, whereas if a woman is pregnant, then the period of Iddah would be till the child is born or the termination of pregnancy.

If the differences still persist then the third talaq is pronounced, after which the relations between the husband and the wife are severed. Hence, the women groups who are claiming to revive this practice are only vouching for the fact that they get the maximum time to sort out their differences which is often not possible in an 'instant talaq'.

Question: What exactly is this 'instant talaq'? How is it different from Talaq-e-Sunnah?

Answer: This instant talaq is essentially 'Talaq-e-Biddah'. ‘Biddah’ means innovation and essentially all Muslims are advised against introducing ‘biddah’ in their religion. This practice of talaq was first promoted by Caliph Umar, and is staunchly opposed by all the petitioners who have approached the Supreme Court for a reform in the case of triple talaq. However, the Muslim Personal Law Board has not still spoken up on the issue and claims that this can be sorted out internally. Dr. Asma Zehra, an executive member of the All India Muslim Personal Law Board, was questioned about this during a recent press conference said, “We have left it for our Ulema (scholars) to decide what is best for us.” However, this answer is far from the truth, as something which is not mentioned in the Quran or is a part of the Sunnah can never be justified as a lawful act by a Muslim.

Question: Can a man marry his wife after pronouncing the third talaq?

Answer: No. After the third talaq, a woman is supposed to marry another man, consummate the relationship, and only after following the original procedure of Talaq-e-Sunnah, will she be able to marry the former husband again. This practice is known as the ‘Nikah Halala’, and many Muslim women have condemned this practice as barbaric and it assumes more importance, in case the talaq is given as Talaq-e-Biddah. Women have often described it as a barbaric practice and there are demands to abolish this practice.

Question: Do the women have any right to divorce the husband in Islam?

Answer: There are broadly two methods under which a wife can claim divorce. One is Talaq-e-Tafweez and the other is Talaq-e-Khula. Under Tafweez, the husband 'may' delegate his power to give talaq to his wife or any third party. This right has to be in the form of a contract with conditions, like, if a man marries again then there can be a divorce, etc. But a contract will not be without conditions or be absolute.

The second one is Khula. This is a divorce which is at the 'request' of the wife. In this case the woman has to make an offer of divorce to the man. The man must accept the offer with consideration, which often means the woman, has to give back the Meher taken during marriage. After these two steps, a Khula is granted. The woman often approaches a qazi-court as well to demand a Khula from the man. There needs to be an execution of a Khulanama.

But something which needs to be broadly observed is that in both the cases, it's only a request or a husband's wish to draw up a contract to give the wife an option to divorce him. Thereby, putting the husbands first, and somehow lacking in achieving gender equality in this regard.

Question: Are there any other Islamic countries which have taken reforms in the mode of talaq?

Answer: Let's begin with our neighbour Pakistan. Pakistan in 1961 had passed the 'The Muslim Family Laws Ordinance'. According to this law, if a man wishes to divorce his wife, he will pronounce talaq and approach the Chairman of the Union Council which is appointed by the state, and give him a written notice and forward the same to his wife. Within 30 days of the receipt of the notice, the Chairman will set up an Arbitration Council which shall consist of himself, a representative of each of the spouse, and the board would try to bring reconciliation. If any individual tries to bypass this legislation then they will be punished with simple imprisonment for a year or a fine which may extend to Rs 5,000 or both.

Another example is Morocco, which has a majority population of Islam. They have the Moroccan Family Code (Moudawana) passed in 2004. The code aims at putting both husband and wife on an equal footing, thereby prohibiting the man from pronouncing divorce unilaterally except when the procedure is being supervised by someone. The code also attempts to bring arbitration and conciliation between the parties concerned. The code further states that if a man chooses to still divorce a wife, then a divorce can only be granted only if the husband pays off all the due rights held by the wife and the children. Like Morocco, Algeria, Indonesia, Iran and Tunisia have similar legislations which do not recognise a divorce given by a husband unilaterally, and compel the parties to resort to a court of law.

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| Edited by: Bijaya Das
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