"Triple Talaq" and Divorced Muslim Women Rights

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“Marriages are made in heaven and consummated on Earth,” Supreme Court in his recent judgment quoted John Lyly. Dissolution of one’s marriage is termed a Divorce. By the legal separation of the spouses by a Court or other competent body the sacred bond of marriage gets mutilated. To ensure a smooth parting of ways the divorce is regulated by divorce laws. The divorce laws in India mainly are the Hindu Marriage Act and the Indian Divorce Act. Apart from this, Muslims are also part of India whereas the concept of marriage and divorce in Muslims is developed from a historical point of view and ancient perspectives. In Islam, divorce is known as ‘Talaaq’ and is divided into different categories. In this article, different types or modes of talaq are briefly discussed as well as two main landmark judgments are also described that act as a key for changing the legislation in favor of Muslim women.

Types of Talaq

Let us see what are the types of talaq in Muslim law:

Talaq By Judicial decree under the Muslim Dissolution of Marriage Act, 1939

• Lian: When a wife is falsely charged with adultery by her husband then she has the right to ask for a divorce by filing a regular suit under the Muslin Dissolution of Marriage Act, 1939. Marriage is revoked after passing the dissolution decrees by the court. If a husband wants to prevent divorce, he can do this by withdrawing the false assertion by his wife regarding adultery before passing the decree by the court.
• Faskh: This type of divorce occurs when both husband and wife feel that they are not compatible with each other. Under Section 2 of the Muslim Dissolution of Marriage Act, 1939, certain points are highlighted based on which a wife can file for a divorce. Some of them include, husband suffering from leprosy, is impotent, treats wife with cruelty, and various others.

Talaq By Mutual Consent

• Khula: It is a divorce through mutual consent between husband and wife in which the husband gives the authority to his wife. The wife, for her release, gives consideration of property to her husband as well as releases Mehr and other rights. Herein, an offer is made by the wife which is then accepted by the husband. Three days time is given to the husband for accepting or rejecting the offer, once the offer is accepted, the divorce becomes irrevocable. After this, a wife has to observe iddat. 
• Mubarat: In this mode of divorce, discharge or release from martial rights is performed with mutual consent among the parties. It is somehow similar to Khula but here any individual either husband or wife can make an offer.

Talaq By Wife

• Talaq-e-Tafweez: A delegated form of divorce in which the husband gave the power to pronounce divorce to his wife. While doing so, he must be above 18 years of age and should be of unsound mind. The delegated power by the husband can be temporary (irrevocable) or permanent (revocable) or absolute or conditional. This type of divorce can also be termed an agreement which is between the two parties after or before marriage. 

Talaq By Husband

• Ila: It is a constructive divorce and is not practiced in India. In this, the husband takes an oath not to indulge in sexual intercourse with his wife then she has to observe iddat. After completing the period of iddat, divorce becomes irrevocable and marriage dissolves. If during the iddat period, the husband cohabits with his wife then the divorce under Ila is revoked.
• Zihar: It is also a constructive divorce in which the wife’s comparison is done by the husband with a woman under his prohibited relationship such as a mother or sister. The husband pronounces his wife as “she is like his mother or sister,” whereas to do so man should be of more than 18 years of age and must be of sound mind. The husband is not allowed to cohabit with his wife after such a comparison for a period of four months. Zihar is complete after the completion of the identified time period. After this, the wife has the right to go to the Court for getting a decree of judicial divorce as well as ask for the decree of restitution of conjugal rights. If the husband wants to revoke Zihar by feeding sixty people, freeing a slave, and observing fast for two months.
• Talaq-ul-Sunnat: It is the form of divorce based on Muslim Personal law and is also called Talaq-ul-Raje. It is a revocable and approved form of talaq. Compromise and reconciliation between husband and wife are possible in this form of talaq. There are two categories of Talaq-ul-Sunnat listed below:
  • Talaq-e-Ahsan: It is one of the most approved forms of talaq. Herein, a single pronouncement of talaq is made by the husband during the tuhr (period of wife’s parity) of the wife. If a woman is free from menstruation either due to pregnancy or old age, talaq can be pronounced at any time. 
  • Talaq-e-Hasan: Under this talaq, the ‘Talaq’ word is pronounced simultaneously for three times in three states of purity. If there is no revocation after the first and second declarations then the third pronouncement is made in the third period of tuhr. After this marriage dissolves and talaq becomes irrevocable. The required Iddat period is then observed by the wife.
• Talaq-ul-Biddat: Also known as Triple Talaq, is disapproved or sinful form of divorce recognized under Sunni Law. In this form of talaq, the word ‘Talaq’ is pronounced three times and it immediately becomes irrevocable. Herein, if the parties want to remarry female partner needs to perform ‘nikah halala’ in which she has to marry another man and then divorce him. Through the Supreme Court judgment in the Shayara Bano vs Union of India and Others case, this type of divorce is unconstitutional in India.

For a very long time, Muslim women are fighting legal battles for their rights. The two most important battles fought by Muslim women are mentioned below:

The Two legal battles fought by Muslim Women 

First Battle: Mohd. Ahmed Khan vs Shah Bano Begum and Ors.

In this case, Shah Bano Begum was disowned by his husband Mohd. Ahmed Khan (lawyer) and tossed out of her marital house along with her five children at the age of 62 in 1975. She filed an appeal in the Madhya Pradesh High Court seeking restoration of maintenance amount of 200 rupees which was ceased by her husband. Also, she demanded an increase in the maintenance amount which is 500 rupees per month. In 1978, her husband gave an irrevocable instant divorce (triple talaq or Talaq-ul-Biddat) and used it as a defence to not pay maintenance amount. The High Court then directed her husband to pay 25 rupees per month as maintenance in 1979, whereas she further urged to increase the amount to 179 rupees per month. The MP High Court accepted the demand and provided her with 179 rupees maintenance from her husband as at the age of 62 she was unable to earn and maintain herself. Mohd. Ahmed Khan (her spouse) approached the Supreme Court challenging the High Court’s decision. 

In 1985, the Supreme Court upheld the decision of the High Court and dismissed Mohd. Ahmed Khan’s appeal. The verdict was given by Chief Justice Y.V. Chandrachud, who said that the legal liability of the husband comes to an end if a divorced wife is capable of maintaining herself. The situation, in the Shah Bano case, was vice versa; therefore, a divorced wife is entitled to gain alimony or maintenance under Section 125 of CrPC (Code of Criminal Procedure). Due to this verdict of the Supreme Court, many Muslims criticized the judgment as they considered that the verdict is against the rules of the Quran and Islamic laws. This led to huge protests; therefore, the then-Rajiv Gandhi government passed an Act, the Muslim Women (Protection on Divorce) Act, 1986, that overturned the judgment of the top Court. It was counted as one of the most misguided decisions of Rajiv Gandhi. Further, a similar case was addressed by the Supreme Court in 2017 which was another important legal battle fought by Muslim Women for their rights. 

Second Battle: Shayara Bano vs Union of India and Ors.

In 2016, Shayara Bano was divorced by her husband Rizwan Ahmed, after 15 years of marriage, by way of triple talaq without any reason. She was one of the victims of domestic violence and dowry harassment. After receiving a divorce letter from her husband declaring instant talaq, she filed a writ petition before the Supreme Court. In the petition, she challenged the constitutionality of practices of talaq-ul-biddat, polygamy, and nikah halala. The petition also highlighted that these practices are in violation of fundamental rights including Article 14 (right to equality), Article 15 (non-discrimination), Article 21 (Protection of Life and Personal Liberty), and Article 25 (Right to Freedom of religion and conscience) of the Constitution of India. The plea was supported by women’s rights organizations including BMMA (Bhartiya Muslim Mahila Andolan) and the Bebaak Collective. All India Muslim Personal Law Board, in opposition, argued that uncodified Muslim Personal law is not subject to judicial review. Also, it urged that under Article 25 of the Constitution divorce is a religious practice and thus protected. The case was referred to a larger bench as appealed by Shayara Bano and in 2017, a five-judge bench including Justices Jagdish Singh Khehar, Rohinton Fali Nariman, K.M. Joseph, S. Abdul Nazeer, and Uday Lalit gave the decision on the matter.

The bench delivered the judgment in favor of Shayara Bano and declared triple talaq unconstitutional by a 3:2 majority. The Supreme Court also ordered the legislature to take appropriate measures to stop abuse against women. While giving the judgment, Justice K.M. Joseph observed that talaq is against the Quran and said that “What is held to be bad in the Holy Quran cannot be good in Shariat and, what is bad in theology is bad in law as well.” The other two judges, Justice Uday Lalit and Justice Rohinton Nariman said that talaq-ul-biddat is an unconstitutional practice as it is arbitrary as well as regulated by the Muslim Personal law (Shariat) application, 1937. Justices S. Abdul Nazeer and Jagdish Singh Khehar stated that it is an essential religious practice in Muslim culture and is followed by a large number of people. Lastly, the Supreme Court stated that talaq-ul-biddat violates fundamental rights under Part III of the Indian Constitution. Through this verdict, the government of India took certain measures for improving the lives of Muslim Women and passed the Muslim Women (Protection of Rights on Marriage) Act, 2019.

• Muslim Women (Protection of Rights on Marriage) Act, 2019

This Act was passed after the 2017 judgment of the Supreme Court in the Shayara Bano case focusing on the protection of the rights of married Muslim women as well as preventing instant divorce by pronouncing triple talaq. This Act introduced various changes in the context of Muslim law. Under Section 3 of this Act, it is illegal or void to pronounce triple talaq by a husband to his wife in any manner either written, verbal, or using any electronic media. According to Section 4 of this Act, any person who pronounces talaq in such a manner is subjected to imprisonment of 3 years or is fined. Moreover, Section 5 of this Act ensures Muslim women that they can seek allowance for maintaining themselves and their children from their husbands as well as Section 6 ensures that custody of a minor child is entitled to Muslim women. In addition to this, Section 7 of the Act illustrates that bail can be granted to the accused by the Magistrate on reasonable grounds. 

Conclusion

In a nutshell, there are more than one mode of divorce in Muslim law but talaq-ul-biddat is one of the most sinful and disapproved forms of divorce also known as triple talaq. Muslim women are not aware of the rights provided to them and are bound to the Muslim Personal Law. In early times, Muslim women who were disowned by their husbands were not able to reach the Court to fight for their rights. But after the Shayara Bano case, there had been various changes in the legislation for improving the lives of Muslim females. The most important legislation passed by the government after the 2017 case was the Muslim Women (Protection of Right on Marriage) Act, 2019 which declared instant talaq illegal or void.