This article is written by Janhavi Deshmukh, a student of Maharashtra National Law University Mumbai.
The personal law in India is a law for people coming from different religion and each law applies according to the religion of the person. It has been so many years that Muslim women are fighting for gender equality in the Islamic law which govern and control right related to marriage, divorce and property rights. All-India Muslim Personal Law Board is one of the most important body in Muslim community. There are many supports and well-wishers for board as well as there are various people criticising it. Many a times, this board declined the proposal to change the Muslim personal law as they believe it will violate the basic principles of Islam. Further, there are many male members dominating that particular board. Whereas, The Holy Quran does not support a system that is only managed by the patriarchy system. Muslim women rights of inheritance, marriage, divorce has inspired many Muslim women activists to fight for their rights.
What is triple talaq
Basically, what Talaq means is dissolution of marriage. It is an Islamic word meaning divorce stating that a Muslim man can severe all marital ties with his wife. Under the Muslim law, Triple Talaq means independence from the relationship of marriage immediately where the man by simply uttering the word ‘talaq’ three times, dissolves his marriage. This instant divorce is called Triple Talaq. The Muslim Personal Law (Shariat) Application Act of 1937 had allowed and legalised the practice of Triple Talaq which gave a Muslim husband special privileges over his wife. The dissolution of marriages in Muslim Law takes place by four ways that is through husband, wife, mutually, or by judicial process. A divorce can be taken by husband in two manners- Talaq e Sunnat and talaq e Biddat.
Talaq e Sunnat is classified in two types- Talaq e Ahsan and Talaq e Hasan. Talaq e Ahsan means very good. It says that a Muslim man can divorce his wife by using the word talaq three times but after that the couple needs to observe 90 days iddat period. If there is settlement among the couple in these 90 days period, then the talaq can be revoked. Talaq e Hasan means something good or pure. It says that a Muslim man can divorce his wife by using the word talaq three times in successive manner which means the husband will pronounce talaq in first month, second month and the third month. In this the couple needs to observe 90 days iddat period. If the parties settle and have reconciliation before the uttering of the word talaq in the third month, then the marriage will be still considered valid.
Talaq e Biddat is considered bad form of talaq. It says that a Muslim man can divorce his wife by using the word talaq three times through physical or any online mode and then there itself the marriage gets dissolved. This is also called as triple talaq. Talaq e Sunnat is a traditional approved type of talaq and has been mentioned in sharia Islamic laws while talaq e Biddat is derived and innovative form of talaq.
Case that declared triple talaq illegal
The case which declared triple talaq as illegal is Shayara Bano vs Union of India. Shayara Bano and Rizwan Ahmed were married for 15 years. In 2016, he got divorced by triple talaq (Talaq -e Biddat) method. She filed a Writ Petition in the Supreme Court requesting to hold three practices unconstitutional which are Talaq-e-Biddat, polygamy, Nikah-Halala as they violate Articles 14, 15, 21, 25 of the Constitution. Talaq-e- Biddat is a practise which gives the husband the right to divorce to his wife by uttering ‘talaq’ three times in one sitting without his wife’s consent. Nikah Halala is a practise where a divorced lady who wish to remarry her husband would have to marry and get divorced, from a second husband before she goes back to her first husband. And polygamy is a practice which allows Muslim men to have more than one wife. The petitioner for the case was: Shayara Bano while the respondents for the case were: Union of India, Ministry of Law and Justice, Ministry of Women and Child Development, Ministry of Minority Affairs, National Commission for Women., All India Muslim Personal Law Board, Rizwan Ahmad. In August 2017, the 5 Judge Bench of the Supreme Court declared its decision in the Triple Talaq Case, announcing that the practice was unconstitutional by a 3:2 majority. Hence, by majority, the supreme court declared triple talaq as illegal and conveyed the parliament to make over a law on it.
Triple Talaq which is also termed as Muslim Women (Protection of Rights on Marriage) Bill, 2019, was passed by the Indian Parliament as a law on July 30, 2019, to make instant Triple Talaq a criminal offence. The Supreme court declared triple talaq illegal in august 2017 after which the Lok Sabha passed the Muslim (protection of rights on marriage) bill in December which got lapsed in Rajya Sabha. In September 2018, the cabinet passed ordinance by making triple talaq a punishable offence and 3 years of jail term was decided. Finally, the bill was introduced in Lok Sabha by Minister of Law and Justice Ravi Shankar Prasad on June 21, 2019. The Bill replaced an Ordinance promulgated on February 21, 2019. The Rajya Sabha passed the Bill, with 99 votes in its favour and 84 against it. The Triple Talaq law makes the instant triple talaq a criminal offence by providing jail for term of three years for a Muslim man who commits the crime. The law also states Triple Talaq to be a cognisable and non-bailable offence.
This law has been controversial in the legal history of India as on one hand it was branded as an attempt by the communal government to tinker with personal belief of religious minority community and on other hand women rights group asking for abolishing of tripe talaq. In India, the legislation has been brought at par with other Muslim majority countries including Pakistan and Bangladesh. This was long overdue for a country that has taken pride in its adherence to the principles of secularism, democracy, and equality. Personal laws of other religious communities, Hindus and Christians, have gone through renditions to address some concerns relating to gender equality in matters of inheritance and polygamy. Despite the gains, gender equality does not permeate all aspects of civil law. This legislation presents a chance to put in place a civil code that soaked in equality across faiths and gender.
The inquiry remains that in the case of announcing the act of triple talaq unlawful would enhance the state of Muslim ladies more than the nullification has done. Further such a move would pit the privileges of a Muslim lady against her social and social accepts. Understand that character subversion is an exceptionally complex marvel. The issue with personality legislative issues is that it doesn’t extraordinary distinction yet is somewhat molded by the very contrast. Drawing upon the post-current grant the subjectivity of the Muslim ladies must be comprehended to be built inside the same socio-social setting. For instance, devout Islamic ladies may challenge man centric administrations of quaranic elucidation home, while in the meantime articulating a kind of worldwide solidarity. It must be comprehended that the personality of a Muslim lady is characteristically connected to her Muslim-ness and can’t be stripped from it. In this way the law changes can’t consider the straight story of exploitation through the male centric Muslim people group yet rather likewise needs to give space to declaration of multi layered personalities like these. Subsequently, after the talk of every above viewpoint it can be reason that, popular conclusion should be guided into favouring such liberal judgments and certain uniform systematized laws which help in a vital method to invalidate to some degree the disparities in the current individual Muslim laws. Accordingly, there is have to dispatch a mindfulness battle against the abuse of a different Muslim women rights identifying with marriage, separate, property rights and so forth polygamy.
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