By Ila Tyagi:
Triple talaq is a procedure of divorce, recognised by the Sharia Law in India. A Muslim man only has to pronounce the word ‘talaq’ thrice in the presence of two witnesses to divorce his wife. It is very quick, easy and effective. Recently, Muslim men have been using other forms of communications such text messages and emails in order to divorce their wives.
The number of impoverished Muslim women has risen as a result of a rise in oral divorces in recent times. Many Muslim women are uneducated and cannot provide for themselves, thus, triple talaq only serves to magnify their hardships. The husbands can use it to their advantage and divorce their wives over petty arguments or simply because they are seeing other women. Frivolous reasons such as poor culinary skills have been known to be a cause of divorce. Living as a divorced woman in a highly patriarchal and judgmental society like India is very difficult. To be a divorced woman in India invites scorn in our society, where marriage is considered both sacred and necessary to be engaged with different social circles.
Comprising approximately 20% of the total population, Muslims make up the largest minority group in India. The Muslim Personal Law (Sharia) Application Act 1937, governs the Muslims’ family laws in India. While many other Muslim countries such as Pakistan, Bangladesh, Turkey, Egypt, etc. have banned triple talaq either impliedly or expressly, the practice is still valid in India. Some of these countries now require an approval by the court for a couple to be considered as divorced.
Triple talaq is also known as Talaq-ul-Bidat. According to Muslim scholars, Talaq-ul-Bidat is only effective when a man utters the word talaq thrice over a period of three consecutive months. He has to declare talaq only during the time of Turh (a woman’s menses-free period). Once the words are spoken for the third time over a period of three months, the marriage is dissolved instantly. The divorced couple can remarry only after the woman has married and divorced another man in the interim period. This process of an intervening marriage is known as the Halala.
The full procedure is not followed in India where merely repeating the word talaq three times leads to a valid divorce. The plight of Muslim women is exacerbated by the fact that Muslim law is open to interpretation by the Muslim clergy because it is not codified. Muslim scholars have questioned the validity of triple talaq because it does not find mention in the Quran, which supports the three-month procedure with an opportunity for reconciliation. Some Indian cases suggest that the divorce must be “for a reasonable cause” but a fog of uncertainty prevails over Muslim personal law generally.
Recently, Shayara Bano has filed a petition to the Supreme Court of India demanding the abolition of triple talaq and polygamy under Muslim law in India. Various Muslim campaign groups who believe that these practices are discriminatory in nature support the move. There is an argument to the effect that triple talaq violates Part III of the Indian Constitution enlisting fundamental rights, in particular, discrimination and equality before law. The gist of the arguments forwarded in the case is that triple talaq is unconstitutional.
The move was met with a strong opposition by the All India Muslim Personal Law Board. The Board argues that triple talaq is a matter of culture and Islamic beliefs. They see the petition as an attempt to interfere with Islam by the Hindu Nationalist BJP government in India. The opposition is religious and also argues that fundamental rights do not apply to the personal law of Muslims in India. They state that the Constituent Assembly deliberately refrained from imposing a Uniform Civil Code because the Assembly was aware of the differences in Muslim personal law. They insist that Muslim women already have adequate legal protection and cite legislation such as Muslim Women (Protection of Rights on Divorce) Act, 1986 in their defence.
While it is important to respect the rights of religious and cultural minorities in a diverse and secular country like India, it is also critical to ensure that such practices do not abuse basic human rights. Triple talaq diminishes the ability of Indian Muslim women to live with dignity. The prevailing practice instills fear and anxiety in the minds of countless Muslim women who experience even slight difficulties in their marriages. Arguments are common to all marriages and many experience a rough patch. However, divorce on the whims and fancies of men is a disgraceful practice.
Since triple talaq has been abolished in 22 Muslim majority countries, it is difficult to see the need to hold on to it. Muslim personal law is in need of a comprehensive review. Perhaps, India can draw a procedure more suitable to its Muslim population by reflecting on the law in other Muslim states like its neighbours. Codification of Muslim law will also help to reduce the uncertainties around it. Effective reforms are necessary and much awaited in the territory of Muslim personal law.