- The main issue confronting judiciary in terms of “Triple Talaq” is the Shayara Bano case.
- This matter comes 30 years after the controversial Shah Bano maintenance case, which resulted in parliament passing a law to override a Supreme Court verdict giving a divorced Muslim woman a highes maintenance than what she got under personal laws.
What is the issue?
- The 35 year old Shyaro Bano is using her case as a plank to challenge.
- Triple Talaq (Talaq-e-bidat)
- Polygamy and
- Nikah halala
Understanding the issue
- She had sought equality before law and protection against discrimination on the basis of her gender and religion.
- In her petition. She has challenged ‘instantaneous triple talaq’ and not triple talaq itself which is allowed by the quran as long as the three utterances are spread over 90 days.
What is Nikah Halala?
- It is a practice where:
- Divorced women
- In case they want to go back to their husbands.
- Have to consummate a second marriage.
What is triple Talaq?
- In the talaq or divorce is situation when the husband peonounces the phrase:
- “I divorce you” to his wife.
- A man may divorce his wife three times, taking her back after the first two (reconciling).
Forms of giving talaq
- Triple talaq case is about the right of muslim women in India and women in general.
- The debate can be extended as instant triple talaq has been banned in most Islamic countries.
- The archaic practice of triple talaq place in many forms – over phone by sending letter, speed post, by utter talaq three times in one go, by writing it on the wall of the house and not specifically informing the spouse.
Is it being misused?
- Nowadays mostly, the instantaneous triple talaq is misused by the husband to divorce his existing wife with another woman and subsequently marry her.
- Threat of triple talaq always hangs over the heads of women husband use talaq as a threat to express their.
- Frustration or
- Simply to get his wife to do what he wants.
- This blatant misuse to triple talaq become a tool for domestic violence and abuse against muslim in their homes.
- Husbands often do not give the maintenance asked for, by their wives, who have no other means to support themselves if they were divorced suddenly.
Earlier cases regarding triple talaq
- There have been PILs filed by NGOs and individuals in the Supreme Court but those didn’t stand as they weren’t field by:
- An affected party (divorced women) or
- Because they pleaded that Uniform civil code be introduced.
- Shayara’s is first such case where a muslim woman has challenged a personal practice citing fundamental right guaranteed by the Indian constitution.
Personal laws regarding marriage
- The muslim personal law (Shariat) Application Act, 1937, allows Indian muslims to be governed by the Shariat.
- It’s lack of codification has legally allowed community leaders to held the practices as sacrosanct.
- The Dissolution of muslim marriages Act, 1939 odifies-“a woman’s right to seek divorce by approaching the court.”
- Progressive laws like the Dissolution of muslim marriages Act, 1939 and the muslim woman (protection of right on Divorce) Act, 1986 had not been able to wean the community away from discrimination shown to muslim women.
Bhartiya Muslim Mahila Andolan (BMMA)
- The BMMA’s argument is that triple talaq and nikah halala to be struck down as being un-Islamic an antithetical to Islam itself.
- Moman’s right groups contended that courts could adjudicate under Article 13 of the constitution if the shariat law was found to be “inconsistent with or in derogation of the fundamental right” of muslim women.
- Countering this appeal the Muslim religious bodies said a court could not adjudicate on muslim personal laws.
The Hindu Personal laws Angle
- The argument in favour of reform is that the hindu have had to codify and reform laws. This was done under which the Hindu Right was codified on the insistence of prime Minister Jawaharlal Nehru proposed it in the 1950s and the then law Minister. Dr. B.r. Ambedkar had to do it.
- Just like it was done for hindu law why then should muslims be allowed to get away without similar codifications and laws.
Why so much of noise regarding this issue now?
- In today’s age of connectivity:
- The Ouran and various interpretations are available on mobile phones.
- Muslim women have more exposure.
- Literacy rates of women have risen and
- Their participation in the workforce has increased.
- Specifically in the current Shayaro Bano matter the disagreement is between:
- Those who see Islamic law itself was opposed to the idea of equality enshrined in the constitution and
- Those who argue that triple talaq and nikah halala are not Islamic.
- The Special Marriages Act exists for those for whom:
- Faith is not central to companionship or
- for those who marry across faith or
- even caste
- These practices are a violation of article 14,15,21,25.
Major Landmark cases governing the debate of Shah Bano case.
Damiel Latifi V/s Union of India, 2001.
- It was held in this case that liability of muslim husband to his divorced wife to pay maintenance is not confined to iddat period.
- According to the SC, a divorce Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death.
Shamim Ara V/s State of U.P
- Supreme Court held in this case that the requirement of a valid talaq are:
- That the talaq must be for a reasonable cause.
- It must be preceded by attempts of reconciliation between the husband and wife by two arbiters:
- One chosen by the wife from her family and
- The other by the husband from his family.
- If their attempts fail, talaq can be affected.
Constitutional Angle – Uniform Civil Code
- Uniform Civil code is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen.
- These laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance.
- Article 44 of the Directive principles in India sets its implementation as duty of the State. Whether it will be implemented in future remains to be seen as it is an issue comprising of many complex issues of religious rights, diversity, primacy of equality of laws over religious rights and can affect the vote bank of each and every political party.