Triple Ta­laq

Libertatem Magazine - - Content - by Shub­ham Pa­tel

IN­TRO­DUC­TION

A healthy, sta­ble and func­tional fam­ily is the most ba­sic and in­te­gral part of a well-func­tion­ing so­ci­ety; and healthy so­ci­eties de­velop to cre­ate a healthy na­tion. In In­dia where spir­i­tu­al­ity and air can be placed at al­most anal­o­gous po­si­tions; re­li­gion, be­liefs and the power to have a say in re­li­gious mat­ters are very vi­tal and sen­si­tive is­sues.

In­dia is the most, and if not most then, prob­a­bly one of the most cul­tur­ally di­verse coun­try in the world. While there is a lot to cher­ish about this di­ver­sity in In­dia, it also raises cer­tain con­cerns when it comes to con­verge of equal treat­ment, fun­da­men­tal rights and free­dom of re­li­gion. For a wel­fare and a pro­gres­sive state guar­an­tee­ing ba­sic hu­man right as well as en­sur­ing free­dom of re­li­gion can be a te­na­cious task. What comes with this di­ver­sity is the re­spon­si­bil­ity to en­sure that the equi­lib­rium be­tween rights and the right to pro­fess re­li­gion is main­tained. In In­dia, most of the as­pects re­lated to re­li­gion are gov­erned by per­sonal laws. We have a su­per­fluity of per­sonal laws which are gov­erned by An­cient texts and other pri­mary sources. A ground for dis­crim­i­na­tion and dif­fer­en­ti­a­tion arises when the pedestal, at which women are placed, in these texts, is taken into con­sid­er­a­tion. When it comes to the con­flict be­tween per­sonal laws and the modern con­cepts of rights, Triple ta­laq is the un­for­tu­nate crown jewel in the con­flicts, where there have been sev­eral cases which are de­cided and are still pend­ing be­fore var­i­ous court in this re­gards. A pe­ti­tion ques­tion­ing the con­sti­tu­tional va­lid­ity of the triple ta­laq and ha­lala mar­riage among other things is pend­ing be­fore the Hon’ble Supreme Court. A re­cent judg­ment in which the Hon’ble Al­la­habad High Court made cer­tain ob­ser­va­tions re­lated to the sta­tus of triple ta­laq made its way in the news.

PERSONALRIGHTS – INTERFACELAWS AND

There was a re­cent wave where sev­eral pro­gres­sive and for­ward look­ing judg­ments were given by var­i­ous courts in re­la­tion of per­sonal laws which have gone re­dun­dant and by means of such judg­ments, rights of women were rec­og­nized in the ar­eas which were specif­i­cally pro­hib­ited by their re­spec­tive per­sonal laws.

The his­tory of most of the re­li­gions show that dis­so­lu­tion of mar­riages is al­ways un­wanted and a process which is

gen­er­ally sought to be avoided and it was with only slow and grad­ual leg­isla­tive in­ter­ven­tion that sep­a­ra­tion is adopted and ac­knowl­edged as a con­cept. The In­dian so­ci­ety still per­ceives di­vorce or ta­laq as a so­cial ta­boo, as there is a very slow reck­on­ing with the fact that not all the mar­riages work, more­over with the fact that if they do not work peo­ple can move for­ward with in­di­vid­ual lives in­stead of try­ing to carry that non-work­ing and bur­den­some re­la­tion­ship for­ward.

The case which came in from of the Hon’ble Al­la­habad High Court was a writ pe­ti­tion. Whether the challenge of un­con­sti­tu­tion­al­ity in re­spect of a per­sonal law can be sus­tained in the court of law is also a moot ques­tion. Prof. Faizan Mustafa puts it in the fol­low­ing way, a writ court can de­clare a ‘law’ un­con­sti­tu­tional, but the ques­tion is whether the Mus­lim Per­sonal Law (which is with­out leg­isla­tive in­ter­fer­ence) comes un­der the mean­ing of Ar­ti­cle 13 of the Con­sti­tu­tion of In­dia. Only a ‘law’ can be chal­lenged in a court of law, and the power of ju­di­cial re­view can be used if the ‘law’ is in con­tra­ven­tion of fun­da­men­tal rights. Ex­plicit abo­li­tion of un­touch­a­bil­ity un­der Ar­ti­cle 17 in­di­cates that the framers of the con­sti­tu­tion in­tended to ex­clude per­sonal laws from the def­i­ni­tion and am­bit ‘law’ un­der Ar­ti­cle 13. [See More, Prof. Faizan Mustafa, Live Law, Triple Ta­laq: Con­sti­tu­tion­al­ity & Ban­ning, 16/12/2016]

MUS­LIM LAWS – CON­CEPT OF DI­VORCE

The word ta­laq is de­rived from Ara­bic and means ‘free­ing or un­do­ing the knot.’ Un­like other be­liefs, in Mus­lim Com­mu­nity dis­so­lu­tion of the mar­riage had a very lib­eral ap­proach from the very on­set of the re­li­gion. The re­li­gion em­pha­sized on in­di­vid­ual free­doms and pro­vided for ex­its from the mar­riages by means of ta­laq, to bring an end to painful re­la­tion­ships. This is ma­jorly be­cause of the rea­son that the mar­riages amongst Mus­lims are more of civil con­tracts in na­ture than a sacra­ment. Such mar­riages in le­gal essence re­main a con­tract, but it can un­doubt­edly be said that such a contact has spir­i­tual and moral over­tones and un­der­tones at­tached to it. The right to seek di­vorce is at the op­tion of both male and fe­male. Ta­laq is though kept as a mat­ter of last re­sort when all the pos­si­ble at­tempts of ar­bi­tra­tion and con­cil­i­a­tion be­tween the par­ties have came to an end and no pos­si­ble remedy which can help the mar­riage sus­tain is avail­able. How­ever, the con­cept of triple ta­laq comes to be seen as a pe­cu­liar and op­pres­sive prac­tice where men uni­lat­er­ally en­joy the right to di­vorce his wife with­out any chance of rec­on­cil­i­a­tion or ar­bi­tra­tion.

The ex­tremes to which this prac­tice was taken to with ad­vance­ment in in­for­ma­tion tech­nol­ogy makes this prac­tice even more hor­rific and gen­der-bi­ased.

On the other hand, it is claimed that the pro­nounce­ment of triple ta­laq in one sit­ting should be deemed as one ta­laq and it was dis­missed by the Prophet him­self, and even the Holy Qur’an does not per­mit it. [Mo­ham­mad Azeemul­lah, The Wire, Is­lam Does Not Sanc­tion Triple Ta­laq in One Sit­ting, 20/10/2016]

THE JUDG­MENT AND AFTER­MATH – A COM­MENT

The Hon’ble Al­la­habad High Court in the case of Hina and An­other v. State of U.P and Ors., made cer­tain ob­ser­va­tions. The fac­tual ma­trix of the case was, the pe­ti­tioner was the sec­ond wife who sought pro­tec­tion from the con­stant ha­rass­ment of the po­lice as well as from the mother of the first wife of her hus­band. Her hus­band, also one of the pe­ti­tion­ers, had di­vorced his first wife just to marry an­other time, the di­vorce was given to marry one other time. The court dis­missed the pe­ti­tion and made cer­tain re­marks about the cruel and in­ap­pro­pri­ate na­ture of triple ta­laq. It also noted that the per­sonal laws can­not claim supremacy over the rights granted by the con­sti­tu­tion al­though, at the same time, re­frained from record­ing the find­ings in the judg­ment and left the ques­tions re­lated to the va­lid­ity of mar­riage and di­vorce open.

Now the ques­tion is that whether with­out record­ing a find­ing should judge make such sweep­ing ob­ser­va­tions, par­tic­u­larly when the sim­i­lar mat­ter is pend­ing be­fore the Hon’ble Supreme Court for ad­ju­di­ca­tion.

[Prof. Faizan Mustafa, Live Law, Triple Di­vorce: Con­sti­tu­tion­al­ity & Ban­ning, 16/12/2016]

Thus, in essence the scope and mean­ing of the ob­ser­va­tion of the court was rad­i­cally dif­fer­ent from what the me­dia por­trayed it to be. There was no judg­ment, as a judg­ment de­ter­mines the rights and obli­ga­tions of the par­ties.

RE­AC­TIONS

Af­ter the said judg­ment the me­dia went frenzy de­pict­ing it in a way that the court has held that triple ta­laq is un­con­sti­tu­tional.

The ob­ser­va­tion of the Court was both well re­ceived and crit­i­cized at equal fronts. The groups rep­re­sent­ing and de­mand­ing a more lib­eral and modern ap­proach to re­li­gion wel­comed it and deemed it an im­por­tant step whereas the con­ser­va­tives and All In­dia Mus­lim Per­sonal Law Board re­acted by say­ing that ta­laq is a part of Sharia law so it should not be in­ter­fered with. Ac­cord­ing to them divine Sharia laws re­gard­ing mar­riage, di­vorce and adap­ta­tion can­not be mod­i­fied or al­tered by any per­son or au­thor­ity also they op­posed the views of the gov­ern­ment in re­gards of triple ta­laq and Uni­form Civil Code. [Ruchi Dua, In­dia To­day, Al­la­habad High Court calls triple

ta­laq un­con­sti­tu­tional, says no per­sonal law board is above Con­sti­tu­tion, 08/12/2016]

Ac­cord­ing to a sur­vey con­ducted by the Bharatiya Mus­lim Mahila An­dolan (BMMA) 92.1% of the re­spon­dents to the sur­vey voted in sup­port of in­val­i­dat­ing the prac­tice of triple ta­laq. [Prab­hash K Dutta, In­dia To­day, Triple ta­laq: What is be­hind Al­la­habad High Court judge­ment, 08/12/2016].

TRIPLE TA­LAQ – IN­TER­NA­TIONAL PER­SPEC­TIVE

Sev­eral coun­tries through­out the world have very dif­fer­ent set of laws with re­gard to triple ta­laq and other as­pects of mar­riage and di­vorce re­lated to Mus­lim Per­sonal Laws. In coun­tries like Turkey, In­done­sia, Iraq, Iran and Bangladesh uni­lat­eral di­vorce which gave an ar­bi­trary power to the men are banned legally whereas in places like Egypt, Su­dan, Jordan, Tu­nisia, Morocco, Pak­istan and Bangladesh the prac­tice of triple ta­laq has been banned.

More­over, women in sev­eral of these coun­tries en­joy much bet­ter rights in terms of mar­riages and di­vorce than in In­dia, like in Turkey and Iran both male and fe­male en­joy sim­i­lar rights for seek­ing di­vorce, and in In­done­sia, Malaysia and Brunei even sec­ond mar­riages are banned.

These de­vi­a­tions clearly are inklings to­wards the fact that the in­ter­pre­ta­tion of Shariat Laws can be changed, and they are not as static and con­stant as are claimed by some.

CON­CLU­SION

The re­cent up­roar on the ques­tion of triple ta­laq poses var­i­ous ques­tions at the fore­front. The first and fore­most be­ing the way it is ‘used’ or rather mis­used by the peo­ple, the case present be­fore the Hon’ble Al­la­habad High Court is un­doubt­edly a glar­ing illustration. The other, and still sig­nif­i­cant ques­tions are, firstly, the re­ac­tions from var­i­ous cor­ners of the so­ci­ety, and se­condly the ques­tion is about

the way in­for­ma­tion is por­trayed by the me­dia to the com­mon masses, most of whom rely com­pletely on the in­for­ma­tion pro­vided in the news­pa­pers or tele­vi­sion shows.

The ques­tion to the first ques­tion seems con­vinc­ingly answered through a catena of pro­nounce­ments from var­i­ous courts, all of which take into ac­count the bi­ased na­ture of the in­sti­tu­tion of triple ta­laq. The Hon’ble Supreme Court has ex­pressed its con­cerns to­wards the ar­bi­trary na­ture as fol­lows, “A di­vorce given uni­lat­er­ally by the hus­band is es­pe­cially pe­cu­liar to Ma­home­dan law. In no other law has the hus­band got a uni­lat­eral right to di­vorce his wife by a sim­ple dec­la­ra­tion”. At the same time there is a large num­ber of judg­ments which makes it clear that an ar­bi­trar­ily pro­nounced ta­laq would not be con­sid­ered proper, and the proper method for ta­laq is that firstly a chance should be given to ar­bi­tra­tion and rec­on­cil­i­a­tion and when all such at­tempts fail then only ta­laq would be ef­fected.

The sec­ond ques­tion seems to be pretty con­vinc­ingly answered with the fact that, there can­not be a uni­form re­ac­tion ex­pected as the two ex­tremes ex­ist i.e. the lib­er­als and con­ser­va­tives, one of which is al­ways go­ing to be dis­pleased, come what may.

The fi­nal ques­tion which though is not in ef­fect re­lated to the present case, is of a great sig­nif­i­cance, as the me­dia has a very im­por­tant role to play in the day to day life of a com­mon man, these sit­u­a­tions make it more clear that there is a need for me­dia houses to first ver­ify the de­gree of the claims they put for­ward, es­pe­cially when they re­late to le­gal field.

At last, while reg­u­lat­ing fun­da­men­tal rights and per­sonal laws, which of­ten claim im­mu­nity as they come un­der Right to Re­li­gion, it should al­ways be kept in mind that the hege­mony of per­sonal laws is not al­lowed to tram­ple with or su­per­sede the fun­da­men­tal rights, as ex­pressed in the words of Dr. B.R. Ambed­kar, “i per­son­ally do not un­der­stand why re­li­gion should be given this vast ex­pan­sive ju­ris­dic­tion so as to cover the whole of the life and to cover the leg­is­la­ture from en­croach­ing upon them. Af­ter all what are we hav­ing this Lib­erty for? We are hav­ing this lib­erty in or­der to re­form our so­cial sys­tem. We are hav­ing this Lib­erty to bring about a ces­sa­tion in the in­equal­i­ties, dis­crim­i­na­tions and other things which con­flict with our fun­da­men­tal rights.”

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