TRIPLE TALAQ in INDIA: Judgement and Key features.

“Triple Talaq”

We all know that India has the largest democracy in the world and the constitution of India gives the right to equality for every Indian citizen but also there are few personal laws which could deprive us of our fundamental rights.

Triple talaq is one of them and not only it has created a vulnerable situation for the Muslim community women in India but also Triple talaq has abolished the right of gender equality for Muslim females.

What is Triple Talaq?

Triple Talaq, also known as talaq-e-biddat or instant divorce or talaq-e-mughallaza or unchangeable divorce.

It is a form of Islamic divorce which has been used by Muslims in India, especially devotees of Hanafi Sunni Islamic schools of jurisprudence.

It permits any Muslim man to legally divorce his wife by stating the word talaq (the Arabic word for “divorce”) three times in oral, written, or more recently in any electronic form.

“Triple talaq in India”, the issue exploded when a Muslim woman Shah Bano and her five children forsaken by her husband Md. Ahmed Khan, a renowned Lawyer in Indore (Madhya Pradesh) in 1975.

Before, Shah Bano two more cases were registered i.e. Tahira Bano vs Ali Hussain and Fazlunbi vs K. Khader Vali.

 ACCORDING TO ISLAM  

The Divorcee female can get the maintenance only during the period of Iddat i.e. A period of time (3 months but it may vary in different conditions) during which a divorced or widowed woman cannot remarry, originally observed in order to determine if a child was conceived prior to divorce or widowhood and if it is so, iddat lasts until she gives birth.

There is only a provision of Mahr which will be given to the bride during the marriage, which becomes her legal property. It could be anything demanded by the bride such as jewelry, home goods, furniture, a dwelling or some land etc.

 HIGHLIGHTS 

In 1975 Shah Bano’s (62 yrs) husband Md. Ahmed Khan abandoned her with 5 children after the marriage of 43 years.

Shah Bano Image courtesy@APN LIVE
Shah Bano Image courtesy@APN LIVE

On 6th November 1978 Md. Ahmed Khan legally divorced Shahbano.

Shah Bano filed a court case against her husband and on 23rd May 1985, the Supreme court’s five judges bench including chief justice Y.V Chandrachur pronounced a historic decision favoring Shahbano i.e Md. Ahmed is liable to give maintenance of Rs. 500/- per month to Shahbano.

This historic decision of the supreme court became a great relief for the women of the Muslim community.

But the leaders and the members of All India Muslim Personal Law Board started accusing and opposing Rajiv Gandhi Government of the decision of the Supreme court.

On the same year, the supreme court asked Rajiv Gandhi government to pass the uniform civil code bill.

 ACTIONS BY THE GOVERNMENT 

Lt.RAJIV GANDHI
Late.RAJIV GANDHI

The 80s was the Rajiv Gandhi’s Prime Ministerial era, and he was very well known for the Shah Bano issue.

Mr. Gandhi was not only a prime minister but also a political leader he knew that he is going to lose the Muslim vote bank in the next election because of the decision of the Supreme court favoring Shah Bano.

So, in 1986 Rajiv Gandhi passed a bill in parliament i.e. The Muslim Women Protection Right on Divorce Act

 ACCORDING TO THIS BILL  

A Muslim woman will be paid the maintenance from her husband only for the 3 months i.e. the period of Iddat.

This act also abolished the rights of the Muslim woman of filing case in court.

PM Shri Narendra Modi
PM Shri Narendra Modi

On 7th October 2016  for the first time in India’s constitutional history, the Narendra Modi government opposed the practice of triple talaq, ‘nikah halal’ and bigamy among Muslims and favored a relook on grounds of gender equality and secularism in the supreme court of India.

Again on 22nd October 2017, the Indian Supreme Court deemed instant triple talaq (talaq-e-biddah) unconstitutional.

Three of the five judges in the panel agreed that the practice of triple talaq is unconstitutional.

The remaining two stated the practice to be constitutional while simultaneously asking the government to ban the practice by ratifying a law.

The Modi Government framed a bill called The Muslim Women (Protection of Rights on Marriage) Bill, 2017 and introduced it in the Parliament which was passed on 28th December 2017 by the Lok Sabha.

 ACCORDING TO THIS ACT 

Instant or triple talaq (talaq-e-biddah) in any form spoken, in writing or by electronic means such as email, SMS, and WhatsApp is illegal and invalid, with up to three years in jail for the husband.

On 19th September 2018, the Union Cabinet approved the Ordinance to modify provisions of the Triple Talaq Bill.

President Ram Nath Kovind signed the Ordinance on the same day. The official name for the law is The Muslim Women (Protection of Rights of Marriage) Ordinance 2018.

 THE JUDGEMENT STATES  

Even though The Muslim Women (Protection of Rights on Marriage) Bill 2017 is pending in the Rajya Sabha and despite the Supreme Court has detected that the practice of Triple Talaq is unconstitutional, the practice still carries on.

 THE KEY FEATURES 

The Ordinance is valid to the whole of India but it is not stretched to the State of Jammu and Kashmir.

Any pronouncement of ‘talaq’ by a Muslim husband to his wife in any manner, spoken or written, shall be invalid and illegal.

Any Muslim husband who communicates the ‘talaq’ verbally or in writing will be a punishable offense of up to three years in jail. The punishment may be also extended.

Despite the presence of general laws in force, if a Muslim man pronounces ‘talaq’ to his wife, then the woman and her children are eligible to receive an allowance for maintenance. Such amount can be determined by a Judicial Magistrate of the First Class.

The Ordinance also states that a Muslim woman is authorized to the custody of her minor children even if her husband has pronounced ‘talaq’ to her.

The offense is pronouncing talaq is cognizable if the Muslim woman on whom it is pronounced transfers the information to a police officer.

The offense is also compoundable if the Muslim woman claims on the same and the Magistrates allows certain terms and conditions which he may determine.

A person dubious of this offense cannot be granted bail unless a claim is filed by the accused after a hearing in the presence of the Muslim woman (on whom talaq is pronounced) is conducted and the Magistrate is satisfied with the reasonable grounds for granting bail.

 TEN MAJOR COUNTRIES TO BAN TRIPLE TALAQ BEFORE INDIA 

1.  Turkey (1926)

2.  Egypt (1929)

3.  Tunisia (1956)

4.  Iraq (1959)

5.  Pakistan (1961)

6.  Indonesia (1974)

7.  Bangladesh (1985)

8.  Algeria (2005)

9.  UAE (2005)

10. Sri Lanka (2006)

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 THE 5 WOMEN WHO FOUGHT TRIPLE TALAQ IN INDIA 

Afreen Rehman Image courtesy@DNA INDIA
Afreen Rehman Image courtesy@DNA INDIA

AFREEN REHMAN
Age: 26

Resident: Jaipur, Rajasthan

Case: Afreen got married in 2014 after getting a match through a matrimonial portal. After two-three months of marriage, her in-laws started mentally harassing her and demanded a dowry.

Following which she went back to her parents. In the May 2017 she received a letter via speed post announcing a divorce.

Ishrat Jahan
Ishrat Jahan Image Courtesy@Khaskhabar

ISHRAT JAHAN
Age: 31

Children: 4

Resident: Howrah, West Bengal

Case: Ishrat divorced by her husband over the phone from Dubai in the year April 2015. She was divorced after 15 years of marriage.

 

Atiya Sabri
Atiya Sabri Image Courtesy @UttarPradesh.org

ATIYA SABRI
Age: 30

Children: 2

Resident: Saharanpur, Uttar Pradesh

Case: Atiya got married in 2012. On 12th December 2015, she filed a complaint with a Mahila Thana of Saharanpur.
Stating her in-laws were demanding Rs 25 lakh as a dowry from her parents and she was being tortured for not paying the amount. She was triple talaq given by her husband on a piece of paper.

Shayra Bano
Shayra Bano image courtesy@Indiatoday.in

SHAYARA BANO
Age: 35

Children: 2

Resident: Kashipur (Udham Singh Nagar district), Uttarakhand

Case: Shayara was given triple talaq in October 2015 after 15 years of marriage.

Gulshan Parveen
Gulshan Parveen Image courtesy@Indian Express

GULSHAN PARVEEN
Age: 31

Children: 1

Resident: Rampur, Uttar Pradesh

Case: Parveen got married in April 2013 and was a victim of domestic violence for a dowry for over two years. In 2015 she received talaq-nama

from her husband on a Rs 10 stamp paper when she was with her parents.

Finally, The Muslim Women (Protection of Rights of Marriage) Ordinance 2018 has proven once again that  “God’s mill grinds slowly but surely”.

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