CONCEPT – TALAQ-E-BIDAT (INSTANT TRIPLE TALAQ)

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CONCEPT – TALAQ-E-BIDAT (INSTANT TRIPLE TALAQ)

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• The practice of Triple Talaq: This is a form of divorce followed by (some) Muslims in India, and has been at the centre of the controversy for long, raising questions of human rights, secularism and gender justice. It is seen by a section of Muslims as regressive and complaints have been lodged, citing how wrong it is towards women. Advocates of the Uniform Civil Code (UCC) have often raised the issue and how it tends to go against the basic human rights.
• Muslim Personal Law and practices: Issues such as divorce, inheritance and marriage are governed by the Muslim Personal law (Shariat) Application act, 1937. After internal struggle for many decades, following a petition filed by harassed women, the Supreme Court reviewed whether Triple Talaq is fundamental to Islam and therefore legally binding. Some Muslim scholars objected saying it is tantamount to meddling with their personal, not acceptable in a secular country. But progressive members have shown how it has been denounced in a Islamic nation such as Pakistan. Read all about Personal Laws in India in a detailed Resource Page, here

• Three types of divorce: Under Islamic law, there are three types of divorce: (1) Talaq-e-Ahsan, (2) Talaq-e-Hasan and (3) Talaq-e-Bidat. (1) and (2) are revocable, (3) is not. The All India Muslim Personal Law Board (AIMPLB) held that for the Hanafis (more than 90% Sunnis in India) triple talaq is a matter of faith followed for 1400 years.

1. Talaq-e-Ahsan is the ideal way of dissolving a marriage where ‘ahsan’ means best. The husband must pronounce divorce in a single sentence when the wife is in a state of ‘purity’, that is, free from her menses. The wife has to observe a period of iddat or a waiting period, after talaq is pronounced. The iddat period is three monthly courses for menstruating women and in case of pregnant women, till the time of delivery. During the iddat period, divorce is revocable.
2. Talaq-e-Hasan is a ‘proper’ way to divorce but not as good as Ahsan. Here, the husband pronounces talaq three times spread over three monthly courses. The divorce is revocable during those months.
3. Talaq-e-bidat was banned by the Supreme Court in its August verdict, is the one considered undesirable and a ‘sinful’ in Islam, yet considered valid under Sharia law. This kind of instant divorce is not the norm within Islam, but a rarity. Bidat means sinful innovation – this form was introduced by Umayyad Dynasty (A.D. 661–750) in order to circumvent the law. Under this, the husband pronounces talaq thrice in one sitting. Divorce is instant and becomes irrevocable immediately when it is pronounced, irrespective of iddat. Thus, once pronounced, it cannot be revoked.

• Personal Laws: Advocates of personal laws have often tended to defend the practices of Triple Talaq and Nikah Halala to safeguard an archaic practice. The verdict is expected to bring about a fundamantal alteration to the Muslim personal law which allows Muslim men to divorce their wives simply by uttering the word "talaq" three times. Muslim women say they have been left destitute by husbands divorcing them through "triple talaq", including by Skype and WhatsApp. The campaign towards removing Triple Talaq gained weight when instance of divorce by Skype did the media rounds.
• The matter reaches the Supreme Court: On October 16, 2015, the Supreme Court questioned if the Muslim personal law practices of marriage and divorce reduce women to mere chattels. In a rare move, it registered a suo motu public interest litigation (PIL) petition titled ‘In Re: Muslim Women’s Quest for Equality’ to examine if arbitrary divorce, polygamy and nikah halala (where a Muslim divorcee marries a man, divorces him to get re-married to her former husband) violate women's dignity. Later, in his judgment, Justice Nariman observed that it is "not possible for the court to fold its hands when petitioners [Muslim women] come to court for justice." The issue was whether the practice that authorised a Muslim man to unilaterally, irrevocably and instantaneously divorce his wife by saying the word ‘talaq’ three times in succession - talaq-e-bidat - was violative of the fundamental and human rights of gender equality & dignity of Muslim women, guaranteed under the Constitution of India, specially Articles 14 (equality before law), 15 (protection against discrimination) and 21 (protection of life and personal liberty). Muslim women and organisations joined forces with the court's initiative. However the Court decided to confine itself to examining triple talaq and not polygamy and nikah halala.  The arguments later narrowed to instant talaq or talaq-e-bidat.
• The Brave Ladies: The petitioners were 

1. Shayara Bano (Kashipur, UKd, 2015) - was divorced through a letter while she was at her mother's home. In 2016, Ms. Bano approached the Supreme Court with a demand that the ‘talaq-e-biddat’ pronounced by her husband be declared void, and contended that such an unilateral, abrupt and irrevocable form of divorce be declared unconstitutional; 
2. Ishrat Jahan (Kolkata) - 15 years of marriage ended by verbal triple talaq over phone, 
3. Atiya Sabri (Saharanpur, UP) - a letter with the 3 words "talaq, talaq, talaq" sent
4. Gulshan Parveen (Rampur, UP) - in a letter to the police, the husband declared he had given triple talaq, 
5. Afreen Rehman (Jaipur) - she was recuperating from an accident after having lost her mother in it (and father earlier) and received a note with the three dreaded words written on it. “If marriage happens with the consent of two people, then how can divorce be one-sided?” she had asked.

• Shah Bano and Danial Latifi case: The Supreme Court rued missing the opportunity to address the question of gender inequality in both the Shah Bano and Danial Latifi cases. In the Shah Bano case, the court merely pushed the government to frame a Uniform Civil Code. In the Latifi case, it upheld the right of Muslim women to maintenance till re-marriage. But nothing came out of both the situations.
• Indian Muslims: For nearly seven decades, Indian Muslim women comprising nearly 8% of the total Indian population (2011 census) have been extremely vulnerable. The present population of Muslims in India is more than 18 crores, of which women number more than 8.5 crores
• The Verdict by the 5 Judges Bench on 22-08-2017: The verdict was delivered by five senior most judges of different faiths, showing the secular thread running through the Bench. In a majority 3 : 2 judgment, the Bench finally set aside 'talaq-e-bidat' which means instant / irrevocable 'talaq' as a "manifestly arbitrary" practice which is not protected by Article 25 (freedom of religion) of the Constitution. The bench barred the controversial practice, i.e. passed an injunction on it, asking the Centre to bring legislation within 6 months as only a judicial pronouncement would not be enough. Hence, the court put a six-month stay on the practice, directing Parliament to enact a law. Chief Justice Khehar addressed the courtroom and concluded that "by majority of 3:2, talaq-e-bidat is set aside."

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• Timeline of events

1. SEPTEMBER 19, 2018 – GoI brings an ordinance to enforce the Law while it is still pending in the Parliament (Rajya Sabha)
2. MONSOON SESSION 2018 – The Bill is unable to clear Rajya Sabha, that gives notice for many amendments to it.
3. DECEMBER 28, 2017 – "The Muslim Women (Protection of Rights on Marriage) Bill, 2017" was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on December 28, 2017. The bill is passed on 28-12-2017 by Lok Sabha.
4. AUGUST 22, 2017 – SC verdict declares the practice of instant triple talaq unconstitutional!
5. MAY 18, 2017 – SC reserves verdict on batch of petitions challenging constitutional validity of triple talaq practice among Muslim
6. MAY 17, 2017 – SC asks the All India Muslim Personal Law Board (AIMPLB) whether a woman can be given an option of saying 'no' to triple talaq at the time of execution of nikahnama (Islamic marriage contract)
7. MAY 16, 2017 – AIMPLB says triple talaq is a 1,400-year-old practice, and constitutional morality and equity cannot arise when matter of faith is concerned.
8. MAY 15, 2017 – Attorney General Mukul Rohatgi told the Supreme Court that the Centre will bring in a new law to regulate and marriage divorce among Muslims if the practice of triple talaq is declared unconstitutional. The SC also refused to hear all the three cases of Polygamy, Nikah and Halala at once, saying it will focus on ne matter at a time.
9. MAY 12, 2017 – SC says the practice of triple talaq was the "worst" and "not desirable" form of dissolution of marriages among Muslims, even though there were schools of thought which termed it as "legal".
10. MAY 3, 2017 – SC allows Salman Khurshid as amicus curiae in hearing of pleas challenging constitutional validity of triple talaq, 'nikah halala' and polygamy.
11. APRIL 29, 2017 – The opposition charged PM Narendra Modi with politicising the triple talaq issue for electoral mileage
12. APRIL 21, 2017 – The Delhi high court dismissed a plea seeking to stop the practice of triple talaq on Hindu women married to Muslim men.
13. APRIL 11, 2017 – The Centre has told the SC that the practices of triple talaq, nikah halala and polygamy impact the social status and dignity of Muslim women and deny them fundamental rights
14. MARCH 30, 2017 – SC says these issues are "very important" and involve "sentiments" and says a constitution bench would start hearing from May 11.
15. MARCH 27, 2017 – AIMPLB tells SC that these pleas were not maintainable as the issues fall outside judiciary's realm
16. FEBRUARY 16, 2017 – SC says a five-judge constitution bench would be set up to hear and decide on 'triple talaq', 'nikah halala' and polygamy.
17. DECEMBER 9, 2016 – The Allahabad high court, in a verdict, stopped short of calling the practice of triple talaq under Muslim law unconstitutional but observed that personal laws could not override constitutionally guaranteed rights of individuals
18. OCTOBER 7, 2016 – For the first time in India's constitutional history, Centre opposes in SC these practices and favours a relook on grounds like gender equality and secularism
19. JUNE 29, 2016 – SC says triple talaq among the Muslims will be tested on "touchstone of constitutional framework"
20. MARCH 28, 2016 – SC asks Centre to file a copy of the report of a high-level panel on 'Women and the law: An assessment of family laws with focus on laws relating to marriage, divorce, custody, inheritance and succession'. SC also impleads various organisations, including AIMPLB, as parties in suo motu matter
21. FEBRUARY 5, 2016 – SC asks Attorney General Mukul Rohatgi to assist it on the pleas challenging constitutional validity of triple talaq, nikah halala and polygamy
22. OCTOBER 16, 2015 – SC bench asks CJI to set up an appropriate bench to examine if Muslim women face gender discrimination in cases of divorce while dealing with a case of Hindu succession

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