DR. RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

2013-14

THE STUDY OF BASICS OF LEGISLATION (FINAL DRAFT)

SANCTITY OF TRIPLE TALAQ: IN LIGHT OF CONSTITUTION OF INDIA

(ARTICLE 21)

Submitted To: Submitted By: Mr. Anil Sain Rahul Khare

(Roll no 92)

Asst. Prof. (Law) Section: B

B.A. LL.B. (Hons.)

IInd

Sem.

OBJECTIVE

The objective of this research piece of work is to determine the sanctity of the procedure followed commonly by

the muslim people and to settle down as to how far this practice is just and if not, what is the decree of

unjustness and immorality of this popular practice regarding the status of women in the pro divorce scenario.

INTRODUCTION

There is a phenomenon occurring in India at this very moment with the use of three words that torment, create

fear and are misused against Muslim women by their husbands, creating such an outcry it is difficult to not find

an article in an Indian newspaper almost every day about Triple Talaq. Triple Talaq is a form of divorce that is

practiced only amongst Muslims and only the husband can say to his wife, instantly divorcing her and many

times leaving her destitute.

Triple Talaq is allowed in many other countries as wellAlgeria, Iran, Bangladesh, Pakistan, Egypt,

Philippines, Malaysia, Morocco, Sri Lanka, Sudan, Gambia, and Nigeria all recognize Talaq. Indonesia,

Tunisia, Tanzania and Yemen do not recognize Talaq at all. India seems to be struggling immensely with

Triple Talaq, and in fact, it is so out of control that husbands are even Triple Talaqing their wives by email, text

message and cell phone, and women are avoiding the threat of this by not answering their phones when their

husbands call.

What of womens rights when referring to divorce? Are woman allowed to Talaq their husbands? Or maybe

the question is, does she have any rights whatsoever in her marriage? What do both the Quran and Hadith

actually say about divorce and in respect to women in general?

Triple Talaq is a cultural, oppressive form of emotional abuse toward Muslim women that is not sanctioned in

the Quran but stems from ancient and contemporary practices. This paper will explore the roots of Talaq, the

basic laws surrounding Muslim marriages in India, what Islamic Law states about the use of Talaq including

what the Quran and Hadith say about divorce, and what actions are taking place to ban the use of Triple Talaq

in India. Also, this paper will explore, what, if anything can be done to insure that Muslim Women in India

obtain and keep their basic human rights and the dignity they deserve.

LITERATURE SURVEY

The researcher has referred a couple of books for the purpose of initial synopsis. Few websites, e - articles have

been referred.

RESEARCH METHODOLOGY

METHOD: For the purpose of following research, the method is doctrinal.

SOURCES: The research would be conducted by investigating few books, legal acts and articles.

CHAPTER - 1

CONCEPT OF MARRIAGE

(MUSLIM LAW)

A marriage (Nikaah) under muslim law is defined as a contract made between two persons of opposite sex with

the object of intercourse, procreation and the legalizing of children born out of such contract.

The nature of the marriage under muslim law is purely contractual as decided in Abdul Kadir v. Salina1 and no

priest or Kaazi is necessary for its performance as decided by the Gauhati High Court in All Assam Muslim

Marriage and Divorce Registrar and Kazi Association v. State of Assam.2

The Shia law recognizes two kinds of marriages, namely (1) permanent and (2) temporary or Muta. As contrary

to Shia law, Sunni law prohibits temporary or Muta marriages.

Proof of Marriage

The doctrines of Muslim Law include a set of evidence admissible under the Evidence Act as decided in Zamin

Ali v. Azizunissa.3 The fact of marriage may be proved by direct evidence by calling witnesses present at the

time or producing Nikaahnama signed by the parties as stated in Roshanbai v. Suleman.4 Where there is the

recorded document which asserts that a marriage ceremony had infact taken place on a particular date prima

facie, such a statement ought to be accepted unless it can be shown by independent to be false as provided in

Irshad Ali v. Mt. Kariman.5 However by the lapse of a ong time after marriage all the formalities required would

be presumed to have been compiled with.6 Where direct proof is not available indirect proof may suffice.

7

Acknowledgment of marriage can be a sufficient proof of marriage.8 It is open to a court upon proof until is

disproved.9

1 (1886) 8 All 149

2 I (2002) DMC 11

3 AIR 1933 All 329

4 (1944) 46 Bom LR 328

55 20 Bom LR 790 (PC)

6 AIR 1941 Oudh 284

7 AIR 1957 Pat 285

8 AIR 1991 SC 331

9 AIR 1943 Cal 76

CHAPTER 2

Dissolution of Marriage by Husband

(Muslim Law)

The literal meaning of Talaq in the language of law is taking off the marriage tie by appropriate words.10

When divorce precedes from husband at his will it is known as Talaq. A Muslim husband of sound mind who

has attained the age of puberty may divorce his wife whenever he desires without assigning any cause as

decided in Ahmad Kasim v. khatun Bibi.11

Any condition which is repugnant or contrary to the rights that have been given to the husband to pronounce

talaq either by him or in a delegated form, cannot be allowed to be agreed upon between the parties. Such clause

is contrary to the unfettered right by husband to pronounce talaq as stated in Kouser Sultana v. Dr. Syed

Mushtaq.12

TYPES OF TALAQ

Talaq can be devided into two kinds on the ground of its effect. It may be

1. Rujaee (revocable)

2. Bain (irrevocable)

10

Baille, pg. 204 11

AIR 1933 Cal 27 12

1992 MLR 389

Further it could be divided on the basis of its forms

1. Soonee (Traditional)

2. Budaee (Modern)

Talaq-ul-bidaat or Talaq-i-bidai

Talaq-ul-bidaat/Talaq-i-bidai or triple Talaq refers to three pronouncements at short intervals or even in

immediate succession13

during a tuhr14

or a single pronouncement during a tuhr showing clear intention

that divorce shall immediately become irrevocable.15

In this mode though the divorcer is considered an

offender against the law yet the divorce holds good. This mode is the most arbitrary and most sinful

according to a section of Islamic scholars perhaps because it cuts the marriage tie instantly.

MEDIUM OF TALAQ

Talaq may be spoken words (oral) or by a written document (talaknama). It is not necessary for the wife to be

present when the talaq is pronounced as given in Shamshuddin v. Noor Jahan Begum.16

But the wife must be

informed of the same.17

When the wife is present talaq may be addressed to any of her relations,18

but when she

is absent, she must be referred to by name.19

A talaq which is not pronounced in the presence of the wife but

communicated by post was held to be not valid in Khannubai v. Salim20

13

7 Bom 121 14

Chandbi v. Badesha, AIR 1961 Bom 121 15

Saleha Bai v. Sheikh Gulla, AIR 1973 MP 207 16

AIR 1955 Hyd 144 17

1975 Cr LJI 1228 18

(1927) 54 IA 61 19

ILR 4 Cal 588 20

(2004) I DMC 211 (BOM)

Maintenance

After divorce, a Muslim wife is entitled to maintenance from her husband during the period of iddat, as stated in

Munnisa Begum v. Noore Mohd, 21

and also for the time if any, that elapsed after the expiry of the period of

iddat and her receiving notice of talaq, Rashid Ahmad v. Anisa Khatun.22

When there is order for maintenance it

ceases to be enforceable after expiry of period of iddat, Shamshuddin v. Zamina Bibi.23

CHAPTER 3

CONSTITUTIONAL SANCTITY OF TRIPLE TALAQ

In the case of A.S.Parveen Akhtar v. Union of India,

After hearing both the parties, a division bench comprising of Honble Mr. Justice R. Jayasimha Babu and

Honble Mr. Justice E. Padmanabhan, held that whatever may be the form of talaq, first and foremost it must be

for a reasonable cause, and must be preceded by several attempts for reconciliation by arbitrators chosen from

the families of each of the spouses. As per the Honble Court, the grounds on which the petitioner has sought a

declaration that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 in so far as it seeks to

recognize and validate Talaaq-ul-Biddat or Talaaq-i-Badai form of divorce, as void and unconstitutional, are

mainly that it does not provide for reconsideration and is not preceded by attempts at reconciliation. The

Honble Court held that the petitioners apprehension that notwithstanding absence of cause and no efforts

having been made to reconcile the spouses, this form of talaq is valid and not going against the constitution of

the country. The writ petition was accordingly dismissed.

We are of the strong opinion that this judgment of the Honble High Court of Madras which has that held Talaq-

ul-biddat to be valid, has not only resulted in atrocity on Muslim women but has also inflicted a great blow to

the fundamental rights, which form the basic structure of the Constitution of India. This form of talaq is infested

with the malady of inequality which goes against equality which is enshrined in Article 14 of the Indian

Constitution. Talaq-ul-biddat distorts the fundamental right against any form of discrimination enshrined in

Article 15 of the Indian Constitution. Lastly, digression from normal format of divorce, talaq-ul-biddat mars the

essence of Article 21, the right to life and personal liberty.

21

AIR 1965 AP 231 22

(1932) 59 IA 21 23

(1962) 2 Cr LJ 124

In the instant case of Praveen Akhtar, the womans liberty to choose to live with man she was married was

unilateral bestowed on the husband in the form of triple talaq. The wife never even had the personal liberty to

give her consent whether or not she wanted this marriage to exist or not. Where do the arbitrators come into the

picture when the husband in front of his entire family had already thrown her out and later divorced her? Will

such a family act as arbitrators or mere supporters of the husband?

Talaq-i-Biddat in its true essence stands for innovated (or sinful) form of Divorce. It is defined as a divorce

which is pronounced thrice in one sitting when the wife is in the state of purity (turh). According to the Hanafi,

Imam Malik and Shafii when triple divorce is pronounced, the wife will become totally alienated from the

husband and he cannot remarry her. She becomes haram (totally prohibited) for him. Neither can he take her

back nor can he go for fresh nikah with her. Although the husband can go for nikah with her only after she

marries another person and that person divorces her on account of marital conflict or she becomes a widow.

Ironically, according to the Holy Quran, divorce is not an arbitrary and whimsical thing. The method

prescribed by the Quran for divorce is that one can give divorce twice only, i.e., on two different occasions and

then either he has to keep the woman with kindness or leave her with benevolence. The Talaq-i-Biddat, as its

name signifies, is the heretical or irregular mode of divorce, which was introduced in the second century of the

Mahommedan era. It was then that the Omeyyada monarchs, finding that the checks imposed by the Prophet on

the facility of repudiation interfered with the indulgence of their caprice, endeavoured to find an escape from

the strictness of the law, and found in the pliability of the jurists a loophole to affect their purpose. As a matter

of fact, the capricious and irregular exercise of the power of divorce which was in the beginning left to the

husbands was strongly disapproved of by the Prophet. It is reported that when once news was brought to him

that one of his disciples had divorced his wife, pronouncing the three talaqs at one and the same time, the

Prophet stood up in anger on his carpet and declared that the man was making a plaything of the words of God,

and made him take back his wife.

The most abominable aspect of triple talaq is its prima facie inequality for it does not bestow the right in the

hands of woman as it does in case of the opposite sex. Strangely, the wife would need to go to a Darul Qaza and

prove the atrocities committed by her husband in order to get a divorce. While, the husband can pronounce talaq

on the wife as in when he wishes to, without any justification or logic. The man has power to break the marriage

at even whimsical ground but the women have no sort of protection. Where is equality in this entire scenario?

Further, a woman after the pronouncement of talaq has to part with her mehr, which she gets along with her at

pure whim of her husband. Due to this form of talaq a woman not only has to lose her mehr but also forgo her

life after matrimony without any say thus triple talaq all in all is violative of Article 14.

Is it right to believe that a marriage which is entered by the will of both can be unilaterally destroyed. In fact, in

the instant case of Praveen Akhtar, the inequality and arbitrariness clearly reflects in the fact that the woman

was not even told directly by the husband about the talaq but was informed by her father. Thus how can this

form of talaq be in line with the Right to Equality? Even commercial contracts cannot be broken in this manner;

are human relationships so fragile and cheap?

Ahmedabad Womens Action Group (AWAG) and others v. Union of India, a writ petition was filed before the

Honble Supreme Court to declare Muslim Personal Law, which enables a Muslim male to give unilateral talaq

to his wife without her consent and without resort to judicial process of courts, as void, offending Articles 14 of

the Constitution of India. Unfortunately, they said writ was dismissed by the Apex Court. The ironical part is

that not only does the Court shy away from interfering in the personal law but they also shun their responsibility

to rectify any constitutional problem arising in personal law. Courts have been put in place to enforce

constitutional values. Their refusal to do so is an abdication of function.

It is relevant to note the approach of the Supreme Court in Danial Latifi v. Union of India. In interpreting the

Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court held that the Act would be

unconstitutional if not interpreted to mean that women would get a reasonable and fair provision and

maintenance.

The Supreme Court in Zohara Khatoon v. Mohd. Ibrahim , had expressed its grave concern towards this

arbitrary of talaq by observing as follows :- There can be no doubt that under the Mahomedan law the

commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband

according to the various forms recognised by the law. 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. Thus, the unfortunate part is that even after recognising this fact, still the Supreme Court

itself allows such open discrimination on the basis of the mere fact of being in a particular religion, a blatant

violation of Article 15 of the Constitution of India.

The fact of the matter is that the source of such form of a cultural emotional abuse does not rest in the Quran but

is the progeny of ancient and contemporary practices thus discriminating Muslim woman from other woman by

taking away the rights and protections enjoyed by these women of other religion. Today Hindu women are

coparcenaries, they have equal rights in inheritance as Hindu men then why such blatant discrimination when it

comes to divorce and other related rights in case of a Muslim woman? Thus such form of Talaq is not only

against Article 15 on the basis of religion and sex but also discriminates among women itself due to its inherent

malady.

The discriminatory nature of the state is so blatantly obnoxious if one goes through the Indian Divorce Act, it is

evident that there is no provision for Muslim women to get maintenance against women of any other religion

nor was any provision added in its amendment in 2001. Furthermore in the case of Rahmat Ullah and Khatoon

Nisa vs State Of U.P. And Ors it was held by the Honble Court that under a valid marriage under the

provisions of the Muslim Womens (Protection of Rights and Divorce) Act 1986 she is not entitled to

maintenance. Thus even today the fact that the still prevailing recognition of such divorce validates

discrimination. There is a need for a decision from the Apex Court in this regard.

Muslim women suffer on many accounts, not only because the husband can give divorce on whimsical grounds

but also that when she wanted to go back to him he hid behind the facade of the acknowledged fact that such a

divorce is irrevocable. She suffered from such unilateral discrimination since even the laws, the Acts and the

Courts of our country had made no provisions to prevent such blatant discrimination in a multi-religious country

like ours. Where countries like Egypt, Iraq, Sudan etc. way back had made triple talaq as unrecognised and treat

it as a revocable form of talaq why does a democracy like ours shy away to protect the Muslim women who are

as much a part of India as anyone else and in this manner truly execute their duty of upholding the validity of

the Constitution in its true spirit.

Lastly, digression from normal format of divorce, Talaq-ul-biddat mars the essence of Article 21, the right to

life and personal liberty. This article though dealing with two simple grounds but the scope is extremely wide.

The fact that the article deals with the most essential prerequisites, triple talaq which violates the spirit of these

essentials mars the essence of this Article. Personal liberty is necessary for a healthy overall development of

the units of society.

Not only Muslim personal law but even Section 2 of the Shariat Act 1937 which recognises talaq goes against

the spirit of this Article by giving indefinite unilateral power in the hands of men. Thus they are directly giving

a thrashing blow to the woman for they in no manner have the liberty to use such forms of divorce and free

themselves from the clutches of a marriage staying in which would be suicidal. Rather their liberty is on the

whim of their husband who in triple talaq does not even require consenting his wife before pronouncing it. Even

if the language is clear and unambiguous even if that it could be reviewed and interpreted so as to keep pace the

changing society Shariat came more than 70 years ago. Thus the since portions of the Act goes against Article

21 more practical interpretation should be given to this Act. Like in the case of Naz Foundation v. Union of

India the Court gave an unpredictable judgement of legalising gay relationship between two consenting adults.

Thus such liberal and practical interpretation should be given to cure this malady in personal law. Furthermore

not only the woman but the man also suffers when such divorce is given in a state where his mental capabilities

are not in his control or when he regrets his decision taken on the spur of the moment, since Talaq-ul-biddat is

irrevocable the liberty to come back is taken away from both the of them.

In the case of Parveen Akhtar, the aggrieved woman got no relief in form of any financial maintenance, a

woman whose entire life is finished in the simple reiterating of the word talaq for reasons often or not known to

her what she gets in return is no mehr but money for maintenance only for three months of the iddat period.

Section 3 (a) 1 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 states a reasonable and fair

provision and maintenance to be made and paid to her within the iddat period by her former husband. How will

such a woman revive her shattered life within three months with such meagre financial support? Thus how can

the administration and the judiciary live with the fact that such blatant violation of fundamentals of life is being

validated and practised with no one to object or even raise a finger?

Judicial Activism

Despite the arbitrary nature of the Triple Talaq, a change in judiciarys attitude is evident. If a Mohemedan

husband divorces her wife at his whim and caprice, it would not only be a spiritual offence but not legal.

Divorce must e preceded by an attempt of reconciliation between the parties by two mediators- one of them

from side of both the families. In the absence of an attempt for conciliation prior to divorce, there cannot be a

valid divorce.24

The Madras High Court also has taken the view that a valid divorce under the Muslim Law requires that there

should be an attempt between the spouse by two mediators from both the sides; in the absence of evidence to

show that a prior attempt between for settlement was made, the divorce would not be valid. This is the

injunction of the Quran.25

The Madhya Pradesh High Court has, approving the Madras ruling, held that under the Muslim Women

(Protection of rights on divorce) Act, 1986, a Muslim woman is divorced under section 2(a) only if the divorce

is in accordance with the requirement of the prior attempt for reconciliation.26

In S.K. Safique v. Papia Bibi,27

the court held that for giving talaq the husband has to show a reasonable cause

which should be discussed with his wife before tendering talaq; he cannot do so at his own whim and caprice

and endeavor should be made for settlement. This was a case for maintenance by the wife which was defended

by the husband contending that he had given a talaq, since he could not prove that, the trial courts order

granting maintenance was upheld.

So also in Khannubi v. Salim28

, the court reiterated that a Muslim husband cannot repudiate is marriage without

good reason and endeavor for conciliation; the husband in this case did not produce talaq in presence of his wife

but communicated it by post. It was held that the talaq was invalid and pleaded only to avoid maintenance

order; his application for cancellation of the maintenance order under section 127 of the CrPC was dismissed.

24

Jainuddin Ahmed v. Anwara Begum, (1981) 1 Gau LR 358 25

Saleem Basha v. Mumtaz Begum, (1991) II DMC 206 (Mad) 26

Mohd. Idris v. Smt. Niga Sultana, (2003) II DMC 397 (MP) 27

2001 (1) HLR 327 (Cal) 28

2003 (2) HLR 416 (Bom)

Where an oral talaq is alleged, it is the duty of the courts to ascertain whether the words of divorce indicated

clearly an intention to dissolve the marriage. Further, even though marriage under Muslim law is only a civil

contract yet, high degree or sanctity is attached to it and as held by Gauhati High Court in Mustt Rebun Nessa v.

Bibi Ayesha29

in the absence of reasonable cause and preceded by an attempt of reconciliation between the

spouses by two arbiters there cannot be any valid divorce/talaq. This was a dispute in respect of succession

certificate of a deceased who had two wives. The district judge had issued the cetificate to the first wife and her

children to the exclusion of the second wife on a plea taken by the first wife that the second wife had been

divorced and has no right. On appeal by the second wife it was held that no divorce was proved. The court

observed that the Holy Quran ordains that (1) talaq must be for a reasonable cause and (2) it must be preceded

by an attempt of reconciliation; and if such attempts fail, talaq can be affected.

In this case there was no valid talaq according to the court and hence the second wife was not a divorcee of the

deceased.

Mere pronouncement before a Kazi was held to be not sufficient compliance for a talaq unless is communicated

to the wife who is the effected party.30

Where arbiters of husband joined only for conciliation proceedings it was held that there was no valid talaq and

the wife would be entitled to the maintenance.31

In Jamshed Mian v. Halima Khatun,32

when the wife was not present at the time of pronouncement of the talaq

by her husband nor was it communicated to her, and further, amount of dain-mehar was not paid to her, it

was held that there was no valid divorce and the provision of MWA was not applicable. Grant of maintenance

under section 125 of the CrPC was held to be proper.

29

AIR 2011 Gau. 36 30

Zamrud Begum v. K. Md. Haneef, 2003 (2) HLR 275 (AP) 31

Shaik Apsar v. State of U.P., 2004 (2) HLR 160 (AP) 32

2006 (1) HLR 796 (Jhar).

CONCLUSION

In Praveen Akhtars case not only the vehement form of the divorce is used to appease the whims of the

husband. Irony remains that though the Court in innumerable instances have recognised triple talaqs

discriminatory nature but since it is a sensitive issue courts majorly shy away. Thus how can this form of talaq

be in line with the Right to Equality? Even commercial contracts cannot be broken in this manner; are human

relationships so fragile and cheap?

Such injustice further emphasis on the dire need of Article 44 to become a reality in the form of uniform civil

code. When there are Acts to protect the rights of all religions even minorities like Parsis who make a small

population of only 60,000 why should the massive section of the Muslim population be deprived from equal

laws and rights. In this 21st century everything is so advanced that in a recent case a man divorced his wife

through Skype then why even today are we ardently following practices which act as a sword hanging on the

neck of Muslim women only. For too long women have been discriminated on the ground of personal law, a

tool used to bargain for their wants from politicians. When neither the Prophet nor the Quran distinguishes

between men and women why the fate of Muslim women should be sealed by the hands of Muslim men alone.

Even in the instant case the woman had her hands tied while the sword of divorce could slit her throat any time

at the whim of her husband. The tool of triple talaq gave her husband undisputed power. Such discrimination

and inequality hoarsely expressed in the form of unilateral triple talaq is abominable when seen in light of the

progressive times of the 21st century. Not only did the personal laws have any relief nor the fact that such mode

of divorcing which was going against the law of the land, The Constitution still she had to beg for mercy

without any relief.

No one can deny that there are significant rulings that should have a far-reaching impact, but unfortunately due

to the submissive attitude of the legislature and the judiciary they hardly bring any change social norms within

communities, they may thus remain as ornamental snippets in law journals.

It must be the courts prerogatives to reform Muslim matrimonial law taking into account the experiences and

demands of women from the Muslim community. It should be codified and certain based on the most liberal

interpretation of the Quran, the most beneficial provisions of Muslim personal laws. Moreover it should

enshrine the progressive judgments by courts of law, situated within a larger framework of womens human

rights and fundamental rights guaranteed by the Indian Constitution.

The MPLB has refused time and again to make substantive changes in Muslim personal law. One can see

why they are so reluctant - for the past twenty years and more, the Muslim community in India has been

under constant rhetorical (and sometimes real) attack by the majority. In such a climate, the Board has

refused to change its stance as a matter of showing some backbone. What is the need of the hour is that

organizations having the authority to deal the amputees in the Muslim personal laws such as MPLB as

these laws are outdated and its high time that these problems are dealt with.

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