Triple talaq in India

Triple Talaq (also known as Talaq-e-Mughallazah — Irrevocable divorce) is a form of divorce that is practiced by Muslims in India. It has been a subject of controversy and debates within the country, raising the issues of justice, gender equality, human rights and secularism. The Government of India and the Supreme court of India have been involved in addressing the issues.

The issue has also caused a debate on the need for a Uniform Civil Code in India.

Practice

Triple Talaq is a form of divorce practiced in India, whereby a Muslim man can legally divorce his wife by pronouncing talaq (the Arabic word for divorce) three times. The pronouncement can be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or social media. The man need not cite any cause for the divorce and the wife need not be present at the time of pronouncement. After a period of iddat, during which it is ascertained whether the wife is pregnant with a child, the divorce becomes irrevocable. In the recommended practice, a waiting period is required before each pronouncement of talaq, during which reconciliation is attempted. However, it has become common to make all three pronouncements in one sitting. While the practice is frowned upon, it is not prohibited. A divorced woman may not remarry her divorced husband unless she first marries another man, a practice called Nikah Halala. Until she remarries, she retains the custody of male toddlers and pre-pubertal female children. Beyond those restrictions, the children come under the guardianship of the father.

The All India Muslim Personal Law Board (AIMPLB), has told the Supreme Court that women can also pronounce triple talaq, and can execute nikahnamas that stipulate conditions so that the husbands cannot pronounce triple talaq.

Background

Further information: Divorce in Islam

The Muslim family affairs in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937 (Muslim Personal Law), one of the first acts to be passed after the Government of India Act, 1935 became operational, introducing provincial autonomy and a form of dyarchy at the federal level. It replaced the so-called "Anglo-Mohammedan Law" previously operating for Muslims, and became binding on all of India's Muslims. The Shariat is open to interpretation by the ulama (class of Muslim legal scholars). The ulama of Hanafi Sunnis consider this form of divorce binding, provided the pronouncement was made in front of Muslim witnesses and later confirmed by a Sharia court. However, the ulama of Ahl-i Hadith, Ithna Ashariyya and Musta'lian Isma'ili Shia persuasions do not regard it as proper. Scholar Aparna Rao states that, in 2003, there was an active debate among the ulama.

In traditional Islamic jurisprudence, triple talaq is considered to be a particularly disapproved, but legally valid form of divorce. Changing social conditions around the world have led to increasing dissatisfaction with traditional Islamic law of divorce since the early 20th century and various reforms have been undertaken in different countries. Contrary to practices adopted in most Muslim-majority countries, Muslim couples in India are not required to register their marriage with civil authorities. Muslim marriages in India are considered to be a private matter, unless the couple decided to register their marriage under the Special Marriage Act of 1954. Owing to these historical factors, the checks that have been placed on the husband's unilateral right of divorce by governments of other countries, such as prohibition of triple talaq, have not been implemented in India.

Opposition

The practice has faced opposition from various Muslim women. Some of them have filed PIL in Supreme Court of India against the practice terming it as "regressive". The petitioner has asked for scrapping of section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, terming it against the Article 14 of the Constitution.

During the hearings before its final judgement, the Supreme Court of India, on 13 May 2017, has described Triple Talaq as the "worst form of marriage dissolution". It also noted that the custom is banned in Muslim-majority countries Saudi Arabia, Morocco, Afghanistan and Pakistan.

Previously on 8 December 2016, the Allahabad High court in its ruling, has observed that the practice of Triple Talaq is unconstitutional and violates the rights of Muslim women.

In March 2017, over 1 million Muslims in India with women in majority, have signed a petition to end Triple talaq. The petition was started by the Muslim Rashtriya Manch (MRM), an Islamic organization affiliated to the right wing Hindu nationalist Rashtriya Swayamsevak Sangh (RSS).

Prime Minister Narendra Modi has raised the issue of Triple Talaq several times. On 29 April 2017, he commented that reformers from Muslim community would come forward to protect women from bad effects of Triple Talaq. He said, the Muslim community should not allow the issue to be politicised. On 9 May 2017, he told a delegation of 25 Muslim leaders from Jamiat Ulama-i-Hind to take the responsibility for initiating reform in this regard.

On 16 April 2017, the Bharatiya Janata Party led Government of Uttar Pradesh has said that it will constitute a high level committee of ministers, representatives of Muslim women’s organisations and women who have been given talaq to address the issue.

On May 10, 2017, senior cleric Maulana Syed Shahabuddin Salafi Firdausi has denounced Triple Talaq and Halala, calling them un-Islamic and instruments to oppress women.

Support

The All India Muslim Personal Law Board (AIMPLB) defends the practice. In April 2017, citing a report prepared by Muslim Mahila Research Kendra in coordination with Shariah Committee for Women, AIMPLB has claimed that Muslims have a lower rate of divorce compared to other religious communities, countering the argument that Muslims have highest number of divorce in the country due to the practice of Triple Talaq. It also claimed that it had received forms from 3.5 crore Muslim women across the country, supporting Shariat and Triple talaq.

Measures

AIMPLB issued a code of conduct in April 2017 regarding talaq in response to the controversy over the practice of Triple Talaq. It also warned that those who divorce for reasons not prescribed under Shariat will be socially boycotted in addition to calling for boycott of those who use Triple Talaq recklessly and without justification. In addition, it also stated that it should be delivered in three sittings with a gap of at least one month each.

See also

• Shah Bano case
• All India Muslim Women's Personal Law Board

Bibliography

• Choudhury, Cyra Akila (2008), "(Mis)Appropriated Liberty: Identity, Gender Justice and Muslim Personal Law Reform in India", Columbia Journal of Gender & Law, 17 (1): 45–110
• Esposito, John L.; DeLong-Bas, Natana J. (2001). Women in Muslim Family Law (2nd ed.). Syracuse University Press.
• Joseph, Suad; Naǧmābādī, Afsāna (2003), Encyclopedia of Women and Islamic Cultures: Family, Law and Politics, BRILL, p. 341, ISBN 90-04-12818-2
  • Murshid, Tazeen Mahnaz (2003), "Inheritance: Contemporary Practice – South Asia", Ibid, p. 304
  • Rao, Aparna (2003), "Kinship, Descent Systems and State – South Asia", Ibid, p. 341
• Mukhopadhyay, Maitrayee (August 1994), Construction of Gender Identity: Women, the State and Personal Laws in India, University of Sussex