Instant Triple Talaq - Talaq-e-bidat

INSTANT TRIPLE TALAQ - Talaq-e-bidat

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Article 44, Uniform Civil Code, and more

The founding fathers of India envisaged that a common civil code for all citizens of India will one day make the dream of uniform status a reality. They enshrined the Article 44 precisely for that purpose in the Constitution, that read –  “Uniform civil code for the citizens : The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.

However, it was not to be. Call it the huge cultural and religious diversity of India, or the prevailing norms, or even the militant uprising against Indian forces (Nagaland, Mizoram etc.), a Uniform Civil Code (UCC) never came to be. In that perspective, the demand of Indian Muslim women to have the practice of Triple Talaq annulled has come full circle on 22 August, 2017, as the Supreme Court bench pronounced its verdict. In all fairness, even the UCC matter is not too straightforward, as a point later will explain. The Law Commission in its consultation paper (August 2018) also said the same thing (not feasible to have UCC).

In the dramatic turn of events, the verdict that emerged carried statements like ...

Triple talaq "is not integral to religious practice and violates constitutional morality"

It is "manifestly arbitrary" to allow a man to "break down (a) marriage whimsically and capriciously"

What is sinful under religion cannot be valid under law

The court said the practice is  "unconstitutional", "arbitrary" and "not part of Islam"

Major aspects of the story

1. 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. Advocated of the Uniform Civil Code (UCC) have often raised the issue and how it tends to go against the basic human rights.
2. 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
3. Three types of divorce : Under Islamic law, there are three types of divorce: (a) Talaq-e-Ahsan, (b) Talaq-e-Hasan and (c) Talaq-e-Bidat. (a) and (b) are revocable, (c) 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.
• 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.
• 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.
• 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.
4. 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. For a detailed Resource Page on Personal Laws, welcome here. For PDFs of all personal laws, please visit the Downloads Section.
   
   
   
5. 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.
6. 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.
   
7. 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.
8. 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
9. 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."
10. Not a unanimous verdict : There were in all 3 different judgements from the 5 judge bench, all calling the practice derogatory. After reading separate judgments, the bench ruled in 3 : 2 majority that Triple Talaq was void and illegal and 'unconstitutional'. SC also referred to the abolition of Triple Talalq in Islamic countries. 22 Islamic nations have banned TT and have a law for Talaq. Interestingly, the minority judgement questioned if these practices can be subjected to constitutional provisions.
11. A test for the government's resolve now : The two dissenting judges delivering the minority opinion (authored by Chief Justice JS Khehar with Justice Abdul Nazeer concurring) said that triple talaq is not regulated by the 1937 Act, rather it is an integral and constituent part of personal law. Also, since the practice of triple talaq was not contrary to public order, morality and health, it enjoyed the constitutional protection granted by Article 25. They also said that the practice was not amenable to a challenge on grounds of Articles 14, 15 and 21, because these provisions are limited to State actions, whereas the practice of triple talaq regulated the conduct of private parties. What does this mean? They said that the practice of triple talaq was "not inconsistent" with constitutional values and fundamental rights, and directed the government to consider legislating on the issue. So the ball is in the government's court, as it has to legislate (the injuction will hold till it does). That is a hot potato, and despite having publicly announced its intentions to do so, the NDA/BJP government will be tested on its resolve (of actually bringing a law in the Parliament to this effect).
12. Who said what : Chief Justice J S Khehar and Justice S Abdul Nazeer were in favour of putting on hold for six months the practice of triple talaq, asking the government to come out with a law in this regard, Justices Kurian Joseph, R F Nariman and U U Lalit held it as violative of the Constitution. This can well be that momentous decision the Muslim women had long desired, as a practice violative of their right to equality was continuing in Indian Muslim society.
    
    
    
    
13. During the arguments :
• The Centre had claimed that instant talaq was not fundamental to Islam. It promised to bring a new divorce law for Muslim men in case the court strikes down Ahsan, Hasan and Bidat.
• The government argued that Muslim marriage and divorce is codified under Section 2 of the Shariat Act of 1937 and came within the ambit of 'law' under Article 13 of the Constitution.
• Hence, they should abide by the principles of dignity and non-discrimination. The AIMPLB  countered by arguing that triple talaq is a matter of faith like the Hindu belief that Ayodhya is Lord Ram's birthplace. Courts and government should leave reform to the community. It quoted the Bombay High Court's unchallenged decision in the Narasu Appa Mali case that personal law should not be tinkered with. ''Where will Muslim men go for divorce if you strike down talaq and Parliament refuses to pass a new law?'' was their question.
• AIMPLB said that marriage in the Muslim community is a contract and in order to protect their interests, they can put special emphasis on certain clauses in 'nikahnama'. The board further said that a Muslim woman had every right to pronounce triple talaq in all forms, and also ask for very high 'mehr' amount in case of talaq.
14. Details of the Minority verdict : Chief Justice J.S. Khehar held that talaq-e-bidat is an integral part of Article 25 (freedom of religion).
• It has been followed for over 1,400 years by the Hanafis and has become a part of religious pratice.
• He held that instant talaq does not violate Articles 14, 19 and 21 of the Constitution, and passed it on to the legislature within six months to decide a law.
• Invoking extraordinary jurisdiction under Article 142, the he injuncted Muslim men from divorcing their wives using instant talaq.
• This was endorsed only by Justice S. Abdul Nazeer, thus, making it the minority judgment.
• However, Justices Kurian Joseph and Rohinton Fali Nariman gave separate judgments. Justice U.U. Lalit supported Justice Nariman's.
• This makes the triumvirate of the majority of three judges who ruled against instant talaq.
15. Justice Kurien’s sharp observations :
• In his judgment, Justice Kurian held that instant talaq was against the tenets of Quran.  "What is banned in Quran cannot be good in Shariat. What is banned in theology cannot be good in law".
• Justice Kurian differed with Chief Justice Khehar that just because a practice has been around for 1,400 years does not make it eligible for protection under Article 25.
• He also differed with the Chief Justice that triple talaq as a personal law is integral to religious belief. He said the practice should not violate public health, morality and order.
16. Detailed legal insight : Justice Nariman said triple talaq in all its three forms — talaq-e-bidat, talaq ahsan and talaq hasan — was "recognised and enforced" under Section 2 of the Shariat Act of 1937. Since the Shariat Act had recognised triple talaq, it was no longer a personal law to remain free of the fetters of the fundamental rights rigour but a statutory law, which comes under the ambit of Article 13(1) of the Constitution. Article 13 defines 'law' and says that all laws, framed before or after the Constitution, shall not be violative of the fundamental rights. Justice Nariman said talaq-e-bidat  allows a Muslim man to "whimsically and capriciously"  divorce his wife. The practice is "manifestly arbitrary" and does not enjoy the protection of Article 25. Moreover, he noted, instant talaq was merely permissive and not a absolute religious practice, and so, does not deserve the protection of Article 25, again. This view was supported by Justice Lalit.
17. Activists demand a proper law :  Activists are demanding that just a judicial pronouncement is not enough. The government should put some deterrent - any Muslim man who pronounces Triple Talaq in one sitting, must be penalized. In fact, divorce in one sitting is violative of quranic principles. Historical evidences exist of 100 lashes as penalty in such cases. And the Personal Law actually says Talaq is not an instant but a process.
    
18. What if no law in 6 months? Then the SC's injunction will continue. The courst has asked parties to keep their differences aside and help Centre in bringing out law on the practice.  
19. Arguments against the Uniform Civil Code (UCC) : Those who oppose the idea of UCC say that it is not possible in India due to sheer diversity. The Hindu Marriage Act was passed in 1955 and other acts related to succession and maintenance were also passed. These laws have special considerations for Hindus living in different regions, and of different castes and ethnic groups. As an example, in some communities in south India, marriage between an uncle and a niece is allowed and such unions are preferred. But this is sacrilege in north Indian Hindus. In the inheritance laws, 'Mitakshara' & 'Dayabhaga' are two different methods that the Hindu Inheritance Law provides, and people can choose either of the two to bestow inheritance. The Mitakshara Law doesn't apply in Bengal and Assam. Nagas have an agreement with India that "No Act or law passed by the Union Parliament affecting the following provisions shall have legal force in the Nagaland unless specially applied to it by a majority vote of the Nagaland Legislative Assembly." This protects - (a) The Religious or Social Practices of the Nagas, (b) The Customary Laws and Procedure, (c) Civil and Criminal Justice so far as these concern decision according to the Naga Customary Law. Mizoram got that in 1968 and the Sixth Schedule of the Constitution was enacted to guarantee provisions to Meghalaya, Arunachal Pradesh, Manipur, and Tripura.
20. Strong suggestion! During the hearing, Justice Kurian suggested an alternative that a Muslim bride, at the time of the wedding, should be allowed to lay down a condition in the nikah nama that she would not be subjected to instant talaq in case the marriage hits a rough patch.
21. Timeline of events :
• SEPTEMBER 19, 2018 – GoI brings an ordinance to enforce the Law while it is still pending in the Parliament (Rajya Sabha)
• MONSOON SESSION 2018 – The Bill is unable to clear Rajya Sabha, that gives notice for many amendments to it.
• 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.
• AUGUST 22, 2017 – SC verdict declares the practice of instant triple talaq unconstitutional!
• MAY 18, 2017 – SC reserves verdict on batch of petitions challenging constitutional validity of triple talaq practice among Muslim
• 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)
• MAY 16, 2017 – AIMPLB says triple talaq is a 1,400-year-old practice, and constitutional morality and equity cannot arise when a matter of faith is concerned.
• 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.
• 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".
• MAY 3, 2017 – SC allows Salman Khurshid as amicus curiae in hearing of pleas challenging constitutional validity of triple talaq, 'nikah halala' and polygamy.
• APRIL 29, 2017 – The opposition charged PM Narendra Modi with politicising the triple talaq issue for electoral mileage
  
• 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.
• 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
• MARCH 30, 2017 – SC says these issues are "very important" and involve "sentiments" and says a constitution bench would start hearing from May 11.
• MARCH 27, 2017 – AIMPLB tells SC that these pleas were not maintainable as the issues fall outside judiciary's realm
•  FEBRUARY 16, 2017 – SC says a five-judge constitution bench would be set up to hear and decide the challenge on 'triple talaq', 'nikah halala' and polygamy.
• 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
• 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
• JUNE 29, 2016 – SC says triple talaq among the Muslims will be tested on "touchstone of constitutional framework"
• 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 the AIMPLB, as parties in the suo motu matter
• 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
• 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
22. Welcome across the board : The verdict was welcomed across the board. Shayara Bano, the first woman to challenge instant triple talaq in a court, says the SC judgment should be accepted. “I welcome the verdict and support it. This is a historic day for Muslim women." Many poleticians tweeted their support. Prime Minister Narendra Modi, on the occasion of 71st Independence Day, had openly admired the courage of women suffering due to Triple Talaq, asserting that nation is with them in their struggles. This is likely to bring rich political dividends to the BJP in the coming times, as the Opposition parties, once again, have failed to understand the spirit of the times and utilise it - this time for a progressive cause!
23. The big battle has just begun : It is only the practice of talaq-e-bidat that is outlawed. Everything else, considered patriarchal and regressive by women rights groups, remains. It is a very long battle, albeit with a healthy starting point now.
24. Law Commission swings into action post Triple Talaq : The Supreme Court has ruled that arbitrary personal laws cannot seek refuge under the ‘Freedom of Religion’ right and that ‘Equality before Law’ is supreme. In the aftermath, a valuable touchstone for the Law Commission has been created while handling contentious issues under the Uniform Civil Code (UCC). The issue of gender justice for Christian and Hindu women will now surface prominently, as the "Waiting Period" issue shows. The Commission is considering if the two-year period of wait for finalising a divorce for Christian women violates their Right to Equality, and that logically brings the next question - if the waiting period should be made uniform across all marriages, or, if the period is sufficient and in keeping with the religious sentiments. Another aspect is whether all religious denominations should have common grounds for divorce. The Law Commission will look into Hindu women's ability to exercise their right to property, often 'bequeathed' to sons customarily. The issue of compulsory registration of marriages, and protecting couples who enter into inter-religious and inter-caste marriages are next on the agenda. The battle for gender justice never was easy, not short and sweet.
25. Law Commission and the UCC : The Law Ministry of India, in 2016, had asked the Law Commission to look into the prospects of a Uniform Civil Code. The Law Commission started the process by launching a questionnaire. Its Chairman Justice BS Chauhan said that they were attempting to bring a synergy between family law and gender equality. The Commission started seeking views of the citizens through an open questionnaire. Opinions are sought on the Uniform Civil code/ Family law reform as the UCC should ensure no gender discrimination or injustice, but not necessarily a “standardization”. The issue of Triple Talaq was pertaining to only the instant or spontaneous talaq and not regular talaq prescribed under Islamic Law. The aim of the survey exercise was to find a right answer to the basic question of gender justice. The Commission assured it will consider all aspects related to family laws which may not be in accordance with the mandate of the Constitution, but no religion or religious faith of any person shall be adversely affected. The reform, if any, is bound to be in conformity with the principles of the Constitution, including those of secularism, Freedom of Religion and equality. The report of the law commission on the uniform civil code is likely to be submitted to the government only in 2018. With the Supreme Court order on Triple Talaq available, the law panel will also ascertain whether the verdict can shed light on what personal law is. It will seek answers on the issue of religious faith and religious practice in the 400-page order. It has already received nearly 45,000 written views on the common code, and is at present working on tabulating the responses. The government has already said that it will take the report to an all-party meet it will convene to decide on the future course of action. 
26.  Deep Dive : 
1. Download all relevant personal laws from the Downloads Section. Some select ones are given here : Supreme Court - Triple Talaq judgement, The Muslim Personal Law Shariat Application Act 1937, The Hindu Marriage Act 1955, The Hindu Marriage Laws Amendment 2013, The Muslim Women (Protection of Rights on Divorce) Act, 1986, The Shah Bano case judgement, 23-04-1985, Supreme Court, 
2. Read all about Personal Laws in India in a detailed Resource Page, here

The Muslim Women (Protection of Rights on Marriage) Bill, 2017

• The 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 makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.  It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.  
• Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
• Offence and penalty :  The Bill makes declaration of talaq a cognizable and non-bailable offence.  (A cognizable offence is one for which a police officer may arrest an accused person without warrant.)  A husband declaring talaq can be imprisoned for up to three years along with a fine.
• Allowance :  A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children.  The amount of the allowance will be decided by a First Class Magistrate. 
• Custody of minor children : A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children.  The determination of custody will be made by the Magistrate.

The Ordinance, Sept. 2018

• The ordinance does take care of some precautions.
• When a criminal offence? The ordinance is not arbitrary. It criminalises the act under the following conditions.
• Complaint compulsory : It has ensured that the triple talaq will be treated as a cognisable offence only if the women affected (or her family – blood or marriage relations) files a police complaint.
• Compoundable : The offence is now made compoundable – so parties can settle among themselves.
• Bail : Magistrate can grant bail to the husband after hearing the wife.

Comments welcome below