The Mythology of Triple Talaq in India
The Mythology of Triple Talaq in India
The Mythology of Triple Talaq in India
By Kagzi Parvezhasnath .H
B.A .L.L.B 5th year
1. Introduction
Prior to Islam, divorce among the ancient Arabs was easy and of frequent
occurrence. A divorce by Talaq is the mere arbitrary act of the husband who may
repudiate his wife at his own pleasure, An Arab husband had absolute power to
divorce his wife without cause.
The unfortunate woman in Ancient Arabia is due to the fact that women being
illiterates, were ignorant of their position in society; and men, being callous to remain
ignorant.
According to Tyabji, the pre-Islamic Arabs, could keep their wives in a species of
perpetual bondage3, pretending to take them back after repeated divorces, merely for
thje purposes of preventing the wives from remarrying and from seeking the then
much-needed protection of a husband. Divorce had become a one-sided engine of
oppression in the hands of the husband. An Arab could marry and give divorce a
large number of women. There was no law relating to divorce. An Arabs consider
the women as an instrument fo r conjugal happiness. The crude method of divorce
can be witnessed from Cadi Numan’s record of an instance where Ali refused to
divorce one of his four wives in order to marry another, and he told the people of
Kufa not to give their daughters in marriage to Imam Hasan (his own son), for he was
in the habit of marrying and divorcing a large number of women, a cause ofr action
which Ale disapproved.
Prophet Mohammed restrained the power of divorce possessed by the husband. He
is reported to have said that ‘with Allah, the most detestable of all things p0ermitted is
divorce”. The Quran, though it gave a certain countenance to the old custom of
divorce, restrained the power of divorce possessed by husbands.
3. Definition of divorce
The word ‘talaq is usually meant ‘repudiation’. Literally it means the taking
off of any tie or restraint’. It comes from a root ‘tellaqu’ which means to release (an
animal) from a tether’; whence to repudiate the wife, or free her from the bondage of
marriage. In law it signifies the absolute power which the husband possesses of
divorcing his wife at all time. Thus, talaq means the repudiation of the wife by the
husband in exercise of his absolute power conferred on him by law.
Hedaya had defined ‘talaq’ as dismissal in the primitive sense.
According to Durrul Mukhtar ‘talaq’ signifies ’the removal of restraints’. But they
use the word ‘Talaq’ ….. in respect of others ‘itllaq’ by implication (which means
‘though art unrestrained’) is held to denote ‘talaq’ by implication only.
In law it means removal of the restraints of Nikha at once by irrevocable divorce.
Legally it would meant dissolution of marriage or the annulment of its legal status by
certain words.
A Constitution Bench has declared that the practice of instantaneous Triple Talaq is
unconstitutional.
On 22nd August 2017, the 5 Judge Bench of the Supreme Court pronounced its
decision in the Triple Talaq Case, declaring that the practice was unconstitutional by
a 3:2 majority.
Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her
through instantaneous triple talaq (talaq -e biddat). She filed a Writ Petition in the
Supreme Court asking it to hold three practices – talaq-e-biddat, polygamy, nikah-
halala – unconstitutional as they violate Articles 14, 15, 21, 25 of the Constitution.
Talaq-e- bidat is a practise which gives a man 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 woman who wants to remarry her husband would have to
marry, and obtain divorce, from a second husband before she can go back to her first
husband. And polygamy is a practice which allows Muslim men to have more than
one wife.
On 16th February 2017, the Court asked Shayara Bano, the Union of India, various
women’ rights bodies, and the All India Muslim Personal Law Board (AIMPLB) to
give written submissions on the issue of talaq-e- bidat, nikah-halala and polygamy.
The Union of India and the women rights organizations like Bebaak Collective and
Bhartiya Muslim Mahila Andolan (BMMA) supported the Ms Bano's plea that these
practices are unconstitutional. The AIMPLB has argued that uncodified Muslim
personal law is not subject to constitutional judicial review and that these are essential
practices of the Islamic religion and protected under Article 25 of the Constitution.
After accepting the Shayara Bano’s petition, the Apex Court formed a 5 judge
constitutional bench on 30th March 2017. The first hearing was on 11th May 2017. On
22nd August 2017, the 5 Judge Bench pronounced its decision in the Triple Talaq
Case, declaring that the practice was unconstitutional by a 3:2 majority.
10. Conclusion
1400 years old practice comes to an end, it is difficult to understand the position of
women’s who triply divorced by her husband. As India is a Country where women are
fully dependent on their husband to live, they treat husband as an Idol. Trivial fights
between husband and wife takes place in every societies in the world this doesn’t
mean that husband should put his hands up from the marital tie and responsibilities
towards his wife and children and leave them on streets without roof. Some Muslim
men abuse this practice to get rid of wife and to marry other women and some abuses
this weapon as a threat to demand dowry. In modern world men are misusing this
practice whimsically by pronouncing talaq via WhatsApp, postcard, emails messages
and other means of electronic communication. Triple talaq is always considered as
vagarious and whimsical act of the husband. Second Caliph, Umar who gave assent to
practice triple talaq was just to meet with emergency situations to protect the religion
from abuse and not to declare it as a permanent law
No doubt Muslim women are suffering a lot, they always live with a fear of triple
talaq and forced to survive like a slave. Practice of talaq-e-biddat violates the basic
human right of women. Marriage is a sacred relationship and a gift of God. Even the
Holy Quran doesn’t approve this form of talaq and it declared as Haram by some
Jurists. Quran permits talaq only after the attempt of reconciliation and in presence of
two witnesses. It is so disgust to observe such kind of practice where the marriage
solemnizes by consent of both the partners by pronouncing “Qubool hai” thrice and
dissolving such auspicious marriage arbitrary without the consent of wife, even non-
Muslims can sense and smell it as a sinful practice.
Gender friendly personal laws in the form of Uniform Civil Code is required with the
passage and change of time in a secular state like India. The journey from shah Bano
to Shayara Bano determines various precedents in favor of Muslim women. These
precedents now protect the fundamental rights of Muslim women. It violates the right
to equality guaranteed under Article 14, on the grounds of gender discrimination it
also violates right guaranteed under Article 15, Article 21- Right to life includes right
to live with dignified life and Article 25 gives freedom to practice any religion &
protects the all religious practice, hence all these fundamental rights are assassinated.
Misusing triple talaq should be condemned since it is against the Quranic Injunction. I
agree with the judgement of the Honorable Supreme Court and fully support the law
constituted by the parliament
9. References
1. Yousuf Rawther v Sowaramma, AIR Ker, 1971, 216.
2. Ahmad A. Mohammedan Law (23 ed.).
3. Ajmery V Moin, ALJ 1332, 1983.
4. Arshad R. Islamic Family Law.
5. Dagdu Pathan V Rahimbi, (3) MhLJ, 2002, 602.
6. Doi AR. Shariah: The Islamic Law, 1984.
7. Menski DP. Muslim Family Lawm, 1998.
8. Mohd Ahmed Khan V, Shah Bano Begum. AIR SC, 1985, 945.
9. Mohd Umar khan V. Gulshan Begum. Cri LJ. 1992; 899 at 900 (MP).
10. Moonshee Buzloor Ruheem V. Shumsoonnissa Begum, (1867)11 MIA 551 (610).
11. Moonshee Buzul-Ul-Raheem V. Luteefut-Oon-Nissa, (1861)8 MIA 397 (395).
12. Mulla DF. Principles of Mahomedan law, 2013.
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14. Riaz Fatima V, Mohd Sharif. 2007, DMC 26 Del.
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