SHOULD TRIPLE TALAQ BE BANNED IN INDIA???

ISSUE OF TRIPLE TALAQ IN INDIA

INTRODUCTION

Triple Talaq, also known as talaq-e-biddat, instant divorce and talaq-e-mughallazah, is a form of Islamic divorce which has been used by Muslims in India. It allows any Muslim man to legally divorce his wife by stating the word talaq (the Arabic word for "divorce") three times in oral, written, or more recently electronic form.

The use and status of triple talaq in India has been a subject of controversy and debate. Those questioning the practice have raised issues of justice, gender equality, human rights and secularism. The debate has involved the Government of India and the Supreme Court of India, and is connected to the debate about a uniform civil code in India. On 22 August 2017, the Indian Supreme Court deemed instant triple talaq (talaq-e-biddah) unconstitutional. Three of the five judges in the panel concurred that the practice of triple talaq is unconstitutional. The remaining two declared the practice to be constitutional while simultaneously asking the government to ban the practice by enacting a law.

Triple talaq is a form of divorce that was practised in India, whereby a Muslim man could legally divorce his wife by pronouncing talaq (the Arabic word for divorce) three times. The pronouncement could be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or social media. The man did not need to cite any cause for the divorce and the wife need not have been present at the time of pronouncement. After a period of iddat, during which it was ascertained whether the wife is pregnant, the divorce became irrevocable. In the recommended practice, a waiting period was required before each pronouncement of talaq, during which reconciliation was attempted. However, it had become common to make all three pronouncements in one sitting. While the practice was frowned upon, it was not prohibited. A divorced woman could not remarry her divorced husband unless she first married another man, a practice called nikah halala. Until she remarried, she retained the custody of male toddlers and prepubescent female children. Beyond those restrictions, the children came under the guardianship of the father.

The All India Muslim Personal Law Board (AIMPLB), a non-governmental organisation, had told the Supreme Court that women could also pronounce triple talaq, and could execute nikahnamas that stipulated conditions so that the husbands could not pronounce triple talaq. The practice of instant divorce is already banned in 22 Muslim-majority countries, including Pakistan.

CURRENT SITUATIONS

The practice faced opposition from Muslim women, some of whom filed a public interest litigation in the Supreme Court against the practice, terming it "regressive". The petitioners asked for section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, to be scrapped, describing it as being against Article 14 of the Constitution (equality before law).

On 13 May 2017, during the hearings before its final judgement, the Supreme Court described triple talaq as the "worst form of marriage dissolution". It noted that the custom is banned in the Muslim-majority countries of Saudi Arabia, Morocco, Afghanistan and Pakistan.

On 8 December 2016, the Allahabad High Court observed in a ruling that the practice of triple talaq was unconstitutional and violated the rights of Muslim women.

In March 2017, over 1 million Indian Muslims, a majority of whom were women, signed a petition to end triple talaq. The petition was started by the Muslim Rashtriya Manch, an Islamic organisation affiliated to the right wing Hindu nationalist organisation Rashtriya Swayamsevak Sangh.

On 10 May 2017, senior cleric Maulana Syed Shahabuddin Salafi Firdausi denounced triple talaq and nikah halala, calling them un-Islamic practices and instruments to oppress women.

The practice was also opposed by Hindu nationalists and Muslim liberals.

The All India Muslim Personal Law Board (AIMPLB) defends the practice. In April 2017, citing a report prepared by Muslim Mahila Research Kendra in co-ordination 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 the highest number of divorce in the country due to the practice of triple talaq. It also claimed that it had received forms from 35 million Muslim women across the country, supporting shariat and triple talaq.

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.

JUDGEMENT

A multi-faith bench heard the controversial triple talaq case in 2017. In a 397-page ruling, though two judges upheld validity of triple talaq (talaq-e-biddat), the three other judges held that it was unconstitutional, thus barring the practice by 3–2 majority. One judge argued that triple talaq violated Islamic law. The bench asked the central government to promulgate legislation within six months to govern marriage and divorce in the Muslim community. The court said that until the government formulates a law regarding triple talaq, there would be an injunction against husbands pronouncing triple talaq on their wives.

According to The Economist, "Constitutional experts said [the judges] legal reasoning fell short of upholding personal rights over religious laws", whilst noting "The judgment did not ban other forms of Muslim divorce that favour men, only the instant kind."

CONCLUSION & SUGGESTION

The controversy of triple talaq has lately been exploded by the media especially in India and other states of the subcontinent for reasons duly attached to political strategy and disregard to the law. In practical Divorce in Islam is Similar to Divorce in a normal functioning society.

Below is the procedure for Talaq (Divorce) in Islam.

·         Due to the financial responsibilities which he has to bear, the right to divorce in Islam is primarily given to the husband, the wife can equally apply for a divorce so as the man. A Muslim who wishes to divorce his wife is therefore advised – in the first instance – to ask for an arbitration meeting, arranged by elders of the couple so that a reconciliation may be reached. If such efforts fail and the man sincerely thinks he cannot live a harmonious life with his wife, he may divorce her either verbally or in writing. In both cases, it is recommended for there to be two witnesses present on the occasion of the pronouncement of such a divorce.

·         A man should (a) divorce only once and (b) only during the time when his wife is not on her menses and (c) there has been no sexual contact with her since the time of her last menses.

According to the teaching of Prophet Mohammed, divorce is the least permissible action which accepted by God. It is highly recommended that the couple should resolve their misunderstanding by taking the council of kin and fearing God. As marriage is not play and come under a chief commitment that an individual makes in his/her lifetime. Divorce is not valid by just verbal pronunciation, but my merging of what the heart calls for between the couple.

We are always accountable for how we act even if the other side doesn't meet their responsibility towards us. For example, if the spouse do not meet the obligations towards the husband ,he is still bound by his duties to her because we will have to answer to God for the actions. In most Middle Eastern Countries divorce are finalised in the court and are witnessed by the family members of the spouses. In short, it can be said that triple talaq is neither unconstitutional nor unislamic but the way of current practices in India is both unconstitutional as well as unislamic.