History of Triple Talaq in India
Triple talaq, in India, has been a topic of heated controversies concerning religious identity, political motives, and patriarchal interests.
What is Triple Talaq? Instantaneous divorce or triple talaq is a method of divorce wherein a Muslim man says (virtually, oral, written as well) the word “talaq” (meaning: I divorce you) to his wife three times in one sitting, and the marriage is considered dissolved and void. This divorce is treated as irrevocable and final.
Religious Scriptures and Laws: The practice of triple talaq is not mentioned in the Quran and finds no validity or sanction from it. The Quran specifies that divorce has to be spread over a period of at least three months, and stresses on reconsideration and reconciliation during this period. During Prophet Muhammad’s time, the pronouncement of three ‘talaq’ at one go was considered to be a single talaq, and therefore, revocable. Triple talaq is also called talaq-e-biddat, where ‘biddat’ paradoxically means innovation or deviation.
Outlawed in over 20 countries including Algeria, Saudi Arabia, Pakistan, and Bangladesh; and with no place in the Quran or Sharia, the practice of triple talaq has found prevalence and permanence in Indian Muslim of the Sunni community, and in the Muslim Personal Law in India.
Legal History in India: The Muslim Personal Law (Shariat) Application Act, 1937 was enacted in British India to formulate an Islamic law code for Indian Muslims and mandate marriage, divorce, inheritance, and family relations. There has been no reform or codification of Muslim Personal laws in India since.
In April 1978, Shah Bano, a 62-year-old Muslim woman filed a petition under Section 123 of the Code of Criminal Procedure, 1973 for maintenance for herself and her five children from her divorced husband. Her ex-husband contested this claim on the grounds that the Muslim Personal Law, 1937 required maintenance to be provided only for the initial three months after divorce.
In 1985, the Supreme Court ruled that CrPC applies to all Indian citizens irrespective of religion and increased Shah Bano’s alimony amount. Fearing repercussions from the Muslim community and religious figures, the Rajiv Gandhi government hurriedly enacted the Muslim Women (Protection on Divorce Act), 1986 which overturned the Supreme Court’s landmark judgement and limited the period of maintenance. Shah Bano later withdrew the maintenance claim she had filed.
On 22 August 2017, the Indian Supreme Court deemed instant triple talaq (talaq-e-biddah) unconstitutional and void. To enforce this judgement, the government introduced The Muslim Women (Protection of Rights on Marriage) Bills in 2017 and 2018, seeking to make instant triple talaq (talaq-e-biddah) in any form — spoken, in writing or by electronic means such as email, SMS and WhatsApp illegal and void, punishable with up to three years in jail. Unable to build consensus in the Rajya Sabha, the government bypassed the parliament and introduced an ordinance in 2019.
The Muslim Women (Protection of Rights on Marriage) Act, 2019 was enacted on 31 July, 2019 and replaced the earlier ordinance. In addition to providing financial support and child custody, the legislation made triple talaq a cognizable and non-bailable criminal offence punishable with up to three years imprisonment as well as a fine. This has been hailed by the current Prime Minister as a tool that ‘corrects a historical wrong done to Muslim women’ and as an interference in personal laws by the Opposition. Ironically, the present government did not debate the legislation thoroughly in the Parliament nor were any stakeholders from the community (such as Muslim women) consulted before the introduction of the bill. The bill does not provide for legal or socioeconomic aid to Muslim women who are unilaterally divorced.
Discrimination and Selective Criminalization: Census shows that 2.8 lakh Muslim women are affected by arbitrary divorces. There are also nearly 20 lakh Hindu, 90,000 Christian and 80,000 women from other communities who have been divorced or deserted unilaterally. With this law, India now criminalizes Muslim men practising instant divorce but not men from other communities. So, if a non-Muslim man deserts his wife without a legally valid divorce, it will be treated as a civil, matrimonial offence; but a Muslim man doing the same will be penalized. By creating such criminal laws, there are higher chances of misuse to target and imprison Muslim men from poorer and undereducated backgrounds, resulting in further demonizing and marginalization.
Criminalizing a Civil Law: This Act criminalizes a civil law. Legally, civil laws govern personal rights in situations such as divorce, property disputes, and child custodies. Usually, compensation is deemed sufficient in such cases. Criminal law comes into effect in violations where it is not just the individual but the well-being of the society that is at stake, and criminal law intends to inflict punishment. In the Indian legal system, crimes such as rioting, counterfeiting, or armed with deadly weapons attract 3 years in jail and/ or fine. Acts such as bribery, causing death by negligent act, or even adulteration of food or drink intended for sale is prescribed a lesser punishment than three years. Evidently, these are far more serious crimes than instant divorce. The disproportionate punishment of 3 years imprisonment for triple talaq is excessive, arbitrary, and irrational.
Sources:
1. What is Triple Talaq Law? Business Standard
2.Triple Talaq Bill: What is the Shah Bano Case, and why does it still haunt the Congress? Money Control
3. Triple talaq: Instant divorce ban draws mixed reactions
in India DW
4. Civil offence for Hindus, crime for Muslims: The triple talaq
ordinance is plainly discriminatory The Scroll, 2018
5. What The Criminalisation of Instant Divorce Means for
Muslim Women The Atlantic, 2019
6. Triple Talaq Bill in India: Muslim Women as Political Subjects
or Victims? Esita Sur
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