Abhorrent Practice of Triple Talaq in India: Permissible Unbridled Authority in Islam

Introduction

Triple talaq has been a continuous and controversial practice amongst the Muslims in India that allows Muslim men to divorce immediately by uttering the word ‘talaq’ three times in a quick succession to their wives. This practice has been witnessing fierce resistance and considerable opposition from across the country. It is an oral unilateral and irrevocable divorce on the part of husband which provides him liberty to relinquish matrimonial relation with his wife and empowers him to break the sanctity of marriage as well without any reasonable cause or justification.

Since India is a secular country and it seeks to accommodate multiple faiths as well as diverse cultural trends, the Indian constitution has allowed every religious group to regulate and conduct the matters related to marriage, divorce, inheritance etc. as per the interpretations of various sacred writings in their respective holy books and civil codes. Muslim Personal Law is not in a codified manner due to which it is highly susceptible to various interpretations and perceptions and this leads to the misconstruction of numerous religious scriptures related to Muslim Law.

 Reform personal law

The source of law for Muslims in India is the Muslim Personal Law (Shariat) Application Act, 1937 that has been formulated with an aim to codify Islamic Law with regard to Indian Muslims. The Act restrains the State from intervening in the matters of personal disputes. It allows the Indian Muslims to be governed by the personal law i.e. Shariat (Islamic Law) which is based on Quran and Hadith that is deemed to be the utterances of Prophet Muhammad. In the absence of any proper codification of Islamic Law even with the Quranic framework, it has been subjected to varied elucidations and understandings by the Muslim clergy who have held certain practices to be sacrosanct and pious.[1]

All India Muslim Personal Law Board (AIMPLB) is a commission that governs the application of Muslim Personal Law amongst the Muslims in their personal affairs in India. It has defended the practice of triple talaq in India and vehemently opposes it abolishment because they believe it to be a part of their religious rights. This organization has claimed that though triple talaq is undesirable but still it is permissible in Islam and the Muslim women also feel safe and secure under the Sharia Law. But in reality this practice has only subjugated and degraded the condition of women. As the communities have progressed gradually, there is a greater realization with regard to the principles of non-discrimination and gender equality.

Since the Shariat Act, 1937 has never been amended or reformed, the conservative and orthodox patriarchal society continue to profess their superiority. With the passage of time, several provisions and practices become obsolete which needs to be strike down as per the changing needs of the community.

It is hardly known that triple talaq which has been practiced amongst the Muslims since time immemorial is an extra-Quranic practice. This has been emerged from innumerous interpretations and derivations made by certain scholars of Islamic jurisprudence.[2]Such misinterpretation has given inappropriate superiority to men over women that must be strictly banished from the Indian society.

 Verdicts in India

Over the years, the numerous Muslim women have approached the courts to turn down the draconian and arbitrary process of divorce in Muslim Law i.e. triple talaq. Judicial intervention is needed in order to amend and enhance the oppressive provisions of personal laws. Needless to say that the personal laws are meant to preserve and uphold the plurality as well as the diversity of the nation but still they must be scrutinized and analyzed by the judiciary for the sake of gender equality and dignity to women.

Recently the Allahabad High Court observed that practice of triple talaq amongst the Muslims is unconstitutional and cruel. It violated the rights of Muslim women. The High Court said that personal law of any community cannot be considered to be above the constitution.

In the Shayara Bano[3]case, Shayara Bano moved to Supreme Court to seek gender justice in relation to certain provisions enunciated under Muslim Personal Law that discriminated against Muslim women. She went on to challenge the provision of instantaneous triple talaq along with polygamy and nikahhalala (a demeaning practice where the divorced woman had to forcefully consummate a second marriage before remarrying her husband). The Supreme Court is hearing the matter and the decision is yet to be taken. This case is most likely deemed to be the catalyst to reform the Muslim Personal Law in India which would be a justified victory for all the vulnerable Muslim women over the patriarchal Muslim clerics.[4]

Conclusion

Despite the abolishment of triple talaq in major Islamic countries such as Pakistan, Bangladesh, Turkey, Iraq etc., it still continues to persist in India explicitly or implicitly. This traditional practice has accorded unjust treatment to Muslim women leaving them in deplorable conditions.

Triple talaq is deemed to be an arbitrary practicein Islamic religion which grants Muslim husbands the obnoxious right to abandon their wives as per their own whims and fancies. It also gives undue privilege to Muslim men to get away with almost anything with respect to their marital relations. Religious practices as well as traditional values should not be a hindrance in the way of gender equality rather it should be assistance in the attainment of egalitarianism and non-discrimination on the basis of sex. The customary laws and archaic traditions that are irrational and anti-human must be quashed as soon as possible so as to serve the purpose of public interest and welfare.

India must obliterate this fallacious practice with the help of stringent provisions in order to safeguard the Muslim women against the grave injustice prevailing in the society. It is advisable for all the Muslims to put their heads together and must try to find out an amicable solution to these social issues which are adversely affecting the society.

[1] Col Ashokan K, “Triple Talaq-Is the time ripe for reforms in Personal Law?”, Olive Greens (Oct. 15, 2016), http://www.olivegreens.co.in/blog/triple-talaq-is-the-time-ripe-for-reforms-in-personal-law

[2]Nizam Pasha, “Triple Talaq has no place in Quran”, Daily O (June 10, 2016), http://www.dailyo.in/politics/triple-talaq-indian-muslims-aimplb-divorce-muslim-personal-law/story/1/11129.html

[3]ShayaraBano vs. Union of India [W.P. No. 118 of 2016]

[4]Nalini R Mohanty, “Muslim Personal Law: ShayaraBano case outcome may be far greater than that of Shah Bano case”, First Post (Oct. 17, 2016), http://www.firstpost.com/india/muslim-personal-law-shayara-bano-case-outcome-may-be-far-greater-than-that-of-shah-bano-case-3055786.html

Authored by Pearl Maheshwari | Edited by Shreya Mishra

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