‘Triple Talaq’ or ‘Oral talaq’ is a procedure of divorce mentioned under the Sharia Law which is a body of the Islamic law. Under this, a husband can divorce his wife by pronouncing ‘Talaq’ thrice.
Centre’s stand on this issue
- Centre is opposed to the Muslim practice of triple talaq.
- The centre says “gender equality and the dignity of women are not negotiable”
- The Central government as a part of its written submissions to the Supreme Court has stated that since gender equality is part of the basic structure of the Constitution, Muslim women cannot be denied this right.
- It says “even theocratic states have undergone reforms in this area of law” which reinforces that these practices cannot be considered an integral partof practice of Islam.
Reasons to abolish Triple talaq:
- In spite of protests by Muslim women and activists world-wide, the procedure is still prevalent in most countries.
- There are several instances where ‘triple talaq’ has enabled husbands to divorce their wives arbitrarily, devoid of any substantiation.
- Oral talaq or ‘triple talaq’ delivered through new media platforms like Skype, text messages, email and WhatsApp have become an increasing cause of worry for the community.
- The ‘triple talaq’ has been abolished in 21 countries including Pakistan, but is still prevalent in India.
- The Centre reasons that these practices are against constitutional principles such as gender equality, secularism, international laws etc.
- The government also argues that when these practices are banned in Islamic theocratic countries, the practices could have absolutely no base in religion and are only prevalent to permit the dominance of men over women.
SC final verdict
- Struck down the controversial Islamic practice of instant talaq.
- Talaq isarbitrary and whimsical mode of ending marriage violated Muslim women’s fundamental right to equality.
- Talaq should be erasedfrom the 1,400-year-old Sharia-dictated divorce manual.
- Supreme Court issued the direction after observing that even theocratic Islamic States had corrected their Shariat to banish instant talaq.
- Supreme Court ordered the government to frame a ruling to address the issue of Muslim women under the yoke of triple talaq.
- Verdict compared triple talaq to social evils such as sati, infanticide and devadasi system, which were cast out by way of legislation and not by judicial orders.
Triple talaq bill
- The triple talaq bill makes declaration of talaq-e-biddat in spoken, written or through SMS or WhatsApp or any other electronic chat illegal.
- Talaq-e-biddat refers to the pronouncement of talaq three times by a Muslim man in one sitting to his wife resulting in an instant and irrevocable divorce.
- The triple talaq bill also makes declaration of talaq-e-biddat congnisable offence that gives a police officer powers to arrest the offender without requiring a warrant.
- To check misuse of cognisable nature of the offence, the triple talaq bill makes declaration of talaq-e-biddat only if the complaint is filed by the aggrieved woman or any of her relation by blood or marriage.
- A Muslim man pronouncing instant triple talaq attracts a jail term of three years under the triple talaq bill.
- The accused under the triple talaq bill is entitled to bail, which can be granted by a magistrate. But the bail can be granted only after the magistrate has heard the aggrieved woman.
- The triple talaq bill also provides scope for reconciliation without undergoing the process of nikah halala if the two sides agree to stop legal proceedings and settle the dispute.
- Nikah halala refers to practice under which a divorced Muslim woman has to marry another man and consummate the marriage and get a divorce. Only then can she be eligible to remarry her former husband.
- A woman divorced through talaq-e-biddat is entitled to demand a maintenance for her and her dependent children under the triple talaq bill. The magistrate has the power to determine the amount of subsistence allowance.
- Under the triple talaq bill, the divorced Muslim woman is entitled to seek custody of minor children. This would be determined by a magistrate.
Triple talaq bill passed by Parliament
- It was the first draft legislation that the Narendra Modi Cabinet passed after being voted back to power in the 2019 Lok Sabha election.
- The passage of the Muslim Women (Protection of Rights on Marriage) Bill, 2019 criminalising triple talaq is a moment of great import for gender equality and justice and for India’s legislative history.
Arguments favouring the bill:
- Bill is needed so that even Muslim women also get equality on par with other Muslim men.
- Triple talaq adversely impact rights of women to a life of dignity and is against constitutional principles such as gender equality, secularism, international laws etc.
- The penal measure acts as a “necessary deterrent”
- It significantly empowers Muslim women.
- The practice of triple talaq has continued despite the Supreme Court order terming it void.
- The practice is arbitrary and, therefore, unconstitutional
- The law is about justice and respect for women and is not about any religion or community
- It protects the rights of Muslim women against arbitrary divorce
- Instant triple talaq is viewed as sinful and improper by a large section of the community itself.
- The fine amount could be awarded as maintenance or subsistence.
Arguments opposing the bill:
- It is well established that criminalising something does not have any deterrent effect on its practice.
- Since marriage is a civil contract, the procedures to be followed on its breakdown should also be of civil nature only.
- Civil redress mechanisms must ensure that Muslim women are able to negotiate for their rights both within and outside of the marriage
- The harsh punishment defies the doctrine of proportionality.
- Three years in prison of the convicted husband will end up penalising the already aggrieved wife and children too.
- The punishment will aggravate the insecurity and alienation of the Indian Muslim community
- In the recent Supreme Court judgement, it never said that triple talaq is to be criminally punished.
- Invoke a secular law that already exists: Protection of Women from Domestic Violence Act (PWDVA), 2005.
- Parliament should have passed a law stating that the utterance of the words “talaq, talaq, talaq” would amount to “domestic violence” as defined in the PWDVA.
- The PWDVA was conceived as a law that ensures speedy relief — ideally within three months — to an aggrieved woman
- While PWDVA is civil in nature, it has a reasonably stringent penal provision built into it
