Customs must uphold fundamental rights

In a landmark judgment declared in August 2017, the Supreme Court set aside the practice of divorce by pronouncing instant Triple Talaq as ‘violative of Article 14 of the Constitution’

On 22 August 2017, the Supreme Court of India, in a historic judgment, declared instant triple talaq (talaq-e biddat) unconstitutional. The division bench comprised five judges of which two ruled stating the practice is constitutional and three said that instant triple talaq is unconstitutional.

It is important to note here that, among the 23 nations across the world that have banned the practice of instant triple talaq, three are India’s neighbours namely Pakistan, Bangladesh and Sri Lanka.

In the historic case of Shayara Bano v/s Union of India & Others, the bench comprised members of different faiths – Chief Justice J S Khehar (a Sikh), Justice Kurian Joseph (a Christian), Justice R F Nariman (a Parsi), Justice UU Lalit (a Hindu) and Justice Abdul Nazeer (a Muslim).

The apex court had also directed the government to promulgate legislation within six months to this effect and said that until the government formulates a law regarding instant triple talaq, there would be an injunction against husbands pronouncing instant triple talaq on their wives.

The Muslim Women (Protection of Rights on Marriage) Act, 2019 declares the instant divorce granted by pronouncement of talaq three times as void and illegal. It provides for imprisonment for a term up to three years and fine to the husband who practiced instant Triple Talaq.

The custom in question

Triple Talaq is a form of divorce practiced in Islam, whereby a Muslim man could divorce his wife by pronouncing ‘talaq’ three times. The man need not cite any reason for the divorce and the wife need not be present at the time of pronouncement of talaq.

The pronouncement could be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or social media. In Islam, the main source of law is the written form of the sayings of the Prophet i.e., the Quran.

It is of three kinds: Talaq-e-Ahsan, Talaq-e-Hasan and Talaq-e-Biddat. The first one, Talaq- e-Ahsan, is the one where once the husband pronounces talaq, there has to be a three-month iddat period to factor in three menstrual cycles of the woman. This time is meant for reconciliation and arbitration.

During this period, if any kind of cohabitation occurs, the talaq is considered to have been revoked. After a period of iddat, during which it is ascertained whether the wife is pregnant, the divorce becomes irrevocable.

Talaq-e-Hasan also has a provision for revocation. Here, the words ‘Talaq’ are to be pronounced three times in the successive periods after menstrual cycles. This means, the husband makes the first declaration of Talaq and then waits for the next menstrual cycle to pronounce the next declaration.

The first and second pronouncements may be revoked by the husband. This can be done either expressly or by resuming conjugal relations. By doing so, the words Talaq become ineffective as it were not initiated in the first place at all.

However, if no revocation is made after the first or the second pronouncement, after the third the Talaq becomes irrevocable and the marriage dissolves.

Talaq-e-Biddat aka instant triple talaq, and the one that was challenged by Shayara Bano in the landmark petition, allows men to pronounce talaq thrice in one sitting or instantly, sometimes with a written talaqnama, a phone call or a text message. After the pronouncement, there is no room for revocation even if the man himself wants to. The divorce remains irrevocable.

This kind of triple talaq originated in the second century of the Islamic-era. It is a disapproved mode of divorce. In its judgment, the Supreme Court described instant triple talaq as manifestly arbitrary’ and said that it allows a man to ‘break down marriage whimsically and capriciously’.

A divorced woman cannot remarry her divorced husband in a ceremony as is allowed in most other religions. She can remarry her divorced husband only after she marries another man and then divorces him, through a practice called the nikah halala.

Challenging the custom

Muslim women had, for long, been demanding a ban on the evil practice of instant triple talaq. It was Uttarakhand’s Shayara Bano who approached the courts in 2016 when her husband divorced her by instant triple talaq. She was the original petitioner in the case and said that it was an “unfair practice” and demanded its abolition in India. Shayara Bano challenged this practice before the Supreme Court on the ground that it is discriminatory and against the dignity of women.

She said she was duped into accepting a letter that summarily broke her home. A marriage was dissolved, in minutes, unilaterally when her husband dispatching a ‘talaqnama’ to her while she was at her parent’s place in Kashipur, Uttarakhand recuperating from an illness. Shayara also suffered mental and physical torture at the hands of her husband who, after the divorce, denied her the custody of their two children.

In its verdict, the Apex Court found the said practice of divorce to be manifestly arbitrary, in the sense that, the marital tie can be broken ‘capriciously and whimsically’ by a Muslim husband without any attempt to reconcile to save the marriage. In a landmark judgment declared on 22 August 2017, the Supreme Court set aside the practice of divorce by pronouncing instant Triple Talaq as ‘violative of Article 14 of the Constitution’.

Supreme Court judgment vindicated the position taken by the Government of India that instant triple talaq or talaq-e-biddat is against constitutional morality, dignity of women and against gender equity as guaranteed by the Constitution of India.

Bridging the gap

The Supreme Court in its order had directed the government to promulgate legislation within six months to this effect. In the absence of a law, it’s difficult to stop a prevalent social practice till there is awareness and sensitisation.

So, even after the apex court order on 22 August 2017 till the time the bill was introduced in the Parliament on 28 December 2017, around 100 instances of pronouncing of instant triple talaq were reported in India.

Following the Supreme Court order, the government first promulgated the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 on 19 September 2018 and two more Ordinances were promulgated thereafter.

Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019 on 25 July 2019 and the Rajya Sabha passed it on 30 July 2019. After receiving the assent of the President of India, the Muslim Women (Protection of Rights on Marriage) Act, 2019 came into force with retrospective effect from the 19 September 2018 giving continued effect to the first the ordinance promulgated on 19 September 2018.

The provisions in the new law state that: Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal; Any Muslim husband who pronounces instant triple talaq upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine; A married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for her and dependent children; A married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband.