Triple Talaq: Behind the veil of Personal Law

This article has been written by Raina Mahapatra. Raina is currently pursuing her undergraduate course from Symbiosis Law School, Pune.

Triple, instantaneous, verbal talaq: an institution under Islamic religion where the husband reserves to himself the exclusive right to grant irrevocable talaq to his wife without the necessity of a single reason. Such an institution is repugnant to the spirit of Islam and more importantly, to the very spirit of humanity. The fact that a Muslim man can render his wife a stranger by one stroke of his tongue as opposed to the deliberately lengthy procedure of ‘khula’ a Muslim woman has to undergo in order to liberate herself from a cruel husband has been lamented time and over.

Islamic nations including Saudi Arabia, Iraq and Pakistan have either restricted or abolished this practice. Iran, Tunisia and Indonesia require that all divorces must go through a court and hence do not recognise triple talaq at all.

Why is it then that the Indian judiciary system, the institution whose creation rests on the necessity of safeguarding our rights, shies away in a dark corner whenever this topic stares it right in the face?

In State of Bombay v. Narasu Appa Mali[1], our very own Supreme Court held that Personal Law cannot be brought under the critical scrutiny of Article 13, an article which deals with laws inconsistent with or in derogation of fundamental rights.

With reference to this, one must note that the expression “laws in force”, a phrase which the Supreme Court has held  not inclusive of ‘Personal law’, has also been used by Article 372 of the Constitution. It authorises the continuance in force of the existing laws even after the commencement of the Constitution. If pre-constitution Personal laws are not “laws in force”, they should have ceased to operate after the commencement of the Indian Constitution. The wording used in defining the expression “laws in force” under Article 13(3)(b) and Article 372 is identical. It is a clear pointer that the framers of the Constitution did not exclude Personal law from the operation of fundamental rights.

It is also pertinent to know that the Supreme Court in Builders Supply Corporation v. Union of India[2] has now clarified that the expression “laws in force” used in Article 372 includes not only statutory law but also custom, usage and even common law in England. The principles applied by the Supreme Court in giving liberal interpretation to Article 372 ipso facto apply to the interpretation of Article 13(3)(b).

In order to be able to hold Muslim Personal Law violative of our fundamental rights, it is necessary to bring it under the ambit of Article 13 of the Indian Constitution.

The Supreme Court in Sant Ram v. Labha Singh[3] stated:

“…custom or usage having in the territory of India the force of law must be held to be contemplated by the expression ‘all laws in force’…to hold otherwise would restrict the operation of the first clause in such a way that none of the things mentioned in the first definition would be affected by the fundamental rights.”

Personal laws falling outside the scope of fundamental rights is a policy and not a legalistic approach, a policy which is based on the assumption that the community governed by the given personal law itself forms a recognised class. When this very class of people dismisses its provisions as tyrannical and redundant, the personal law ceases to uphold its own integrity.

Further, in many areas, Sharia happens to be the personal law of Muslims because enactments like Shariat Act, 1937 recognise it as such. These enactments aren’t clothed with the immunity claimed by personal law. It would appear that when a person is governed by Sharia by virtue of the Shariat Act, the provisions are open to judicial scrutiny as regards their constitutionality.

A sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is one’s religious faith and belief. If religious practices run counter to public order, morality, health or policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole.

“Equality is one of the most significant corner-stones of our democracy.”[4] It is therefore highly ironic that the most abominable aspect of triple talaq is its prima facie inequality. The explicit power of irrevocable talaq given to a Muslim husband is solely based on the fact that he is a man and absolutely no other rational basis. The plight of the Muslim women at the hands of the unscrupulous misinterpretations of the Quranic Shariah, particularly with respect to their right to divorce, has been constantly brought out.

Article 15(1) specifically prohibits gender discrimination and thus, no ground referable to any custom, usage or personal laws, contrary to equality principle enshrined in the Constitution should be enforced, more particularly, in relation to secular matters.[5]

More importantly, it has been contested that the institution of triple talaq is grossly violative of Right to Life as provided under Article 21 of the Constitution. This right has constantly evolved and has now come to be liberally interpreted as something more than mere survival and animal existence. It includes finer graces of human dignity, culture and civilisation. One must live with dignity, free from exploitation.

Where does the dignity lie in the lives of the numerous women who speak of domestic violence, marital rape, mental torture, dowry demand or just a desire in remarriage in men culminating into talaq? Are they not entitled to enforcement of their rights merely because of their circumstantial birth into a Muslim family?

For a nation that preaches equality, justice and secularity, the level of hypocrisy in such pertinent issues merely translates into impotence and nothing else. Muslim Personal Law must be brought under the scrutiny of Article 13; Triple Talaq must be judged on its credentials and not allowed to hide behind the impenetrable veil of Personal law.

[1] AIR 1952 Bom 84

[2] 1965 AIR 1061

[3] 1965 AIR 166

[4] Indra Sawhney v. Union of India, AIR 1993 SC 477

[5] Haseena Mansoor v. State of Kerala ILR 2010(2) Ker at 891


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Triple Talaaq: Religious empowerment or unjust vindicament

This article has been written by Soma Sarkar. Soma is currently a second-year student at Chanakya National Law University.

 

At-talaaqu marrataan: fa-imsaakum-bima`-ruufin `aw tasriihum-bi-ihsaan. Wa la yahillu lakum `an-ta`khuzuu mimmaa`aatay-tumuuhunna shay-`an `illaaa.

Talaq, Talaq and Talaq!!! Speak the three words in and the civil contract in the garb of Nikah comes to an end. Isn’t it a strange divorce without any justification to the other party and no judicial process requires to be ensued. One spouse enjoins his right, the other mourns over it. One exercises his freedom right at the cost of paralyzing the other with pain and agony, financial crisis and compelling her to lead a dog’s life. In a country where law is the king of kings and vox populi is of paramount importance, it is in the very same country such vindicament being practiced inducing us to believe that there is no Messiah of the victims. No, no not even law.

Talaq-i-Bid’ah, the sinful form of divorce or the best to say the innovated one can be defined as a divorce which is pronounced thrice in one sitting when the wife is in the state of purity (tuhr), i.e., when man says: “I divorce you, I divorce you, I divorce you.”  “The Affair of the Necklace” is a very popular episode said to be dealing with this talaq. Aisha who was Prophet’s wife, as the story goes on her way to the city lost her precious pearl necklace. While as a bee she was in search of it in the desert bushes, the caravan went ahead leaving her all alone. In this hour of need she was escorted by a stranger to the city. Seventeenth century was the time period so peoples’ whispering about the incident would not make anyone to bat an eyelid. In order to uproot the rumors along with the character assassination attempts from the grass-root level, the Prophet made a ruling that whoever raising an allegation on Aisha must produce 4 eyewitnesses to the misconduct or face punishment. Credit goes to the mullahs to twist a pro-women ruling into a whip to be cracked on the women themselves. So, today the existence of Sharia brings into light the perverted version of the episode.

 The Apex Court decisions too has been ambigious on the matter in question. Where a writ petition was filed to declare Muslim Personal Law, which enmpowers a Muslim male to give unilateral talaq to his wife without her consent and without resort to judicial process of courts, as void and offending Articles 13, 14 and 15 of the Constitution of India in the case of Ahmedabad Women’s Action Group (AWAG) and others v. Union of India[1]. The Court left the issue down in mouth on the ground that it involved State policies. So the remedy isn’t in form of judicial process that means it must be sought elsewhere. Simultaneously the efforts made by the court to inject some safeguards into the talaq process cannot be given cold shoulder. For a talaq to be effective, it must be pronounced. In Shamim Ara v. State of UP and another[2], a mere plea taken in a written statement of a divorce having been pronounced in the past was held not to be treated as effectuating a talaq. Instead, a talaq has to be ‘pronounced’, i.e. it has to be proclaimed, uttered formally and articulated. Therefore, the Court has introduced a condition precedent for the effectiveness of a divorce.

The approach of the Supreme Court in Danial Latifi v. Union of India[3] in the course of interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court upheld that the validity of the Act would be unconstitutional if not construed to mean that women should get a reasonable and fair provision and maintenance.

It has taken 60 years of independence to make us realize that our constitutional values cannot be segregated from our cultural inheritance. Presently it has become the job of the courts to enforce constitutional values. When all forms of gender injustice has been overpowered and captured then why should this stand as a pillar of muslim society? The laws in Egpyt, Iraq, Jordan, Kuwait, Morocco, the Philippines, Sudan, Syria, the UAE and Yemen have  put down their feet. Why should the All India Personal Law Board be allowed to paade these inhuman and illegal practices in the 21st century?

[1] (1997) 3 SCC 573.

[2] (2002) 7 SCC 518.

[3] (2001) 7 SCC 740

 

Rights of women in Islam

This article is written by Vrinda Chauhan. Vrinda is currently pursuing BA LLB (Hons) from Aligarh Muslim University.

 

 

The sense of freedom, entitlement and liberation are the basic requisites any individual would want in life. Some struggle for it while others succumb to it but no one wishes to lead a life without any rights or privileges. Women and their representatives have been fighting for years up until now, for equal rights for them. But Islam has delineated the rights of women almost 1400 years ago, a time when feminism was not even heard of. Islam advocates for spiritual equality where both male and female have the same spirit, enjoying no superiority over one another in the spiritual sense. (Noble Qur`an 4:1, 7:189, 42:11). The two genders in Islamic perspective share equal rights but do have specific roles. This means that they may enjoy certain benefits in some cases but in total their rights are balanced.

Glancing at the rights a woman has been enjoined in Islam, be it economic rights, social rights and political rights one would find a fair representation of the fairer sex in the life and times of Prophet and also after him.

Islam gives women the right to inheritance, and to spend it as per her desire without even having to spend it on her household, which is the sole responsibility of the man in the house. This is in itself liberation from the worries of earning for the sustenance of the family from which women are exempted. But this does not mean Islam opposes the notion of women to take on a profession. Rather, Islam encourages the idea of female physicians, nurses and teachers in the society. But that comes with a condition of maintaining the proper conduct as prescribed by the Qur`an. For this, she is entitled to equal pay for equal worth of work.

Regarding the social aspect, women are rather favoured in this context where they are entitled to extra care and respect from their fathers, brothers, husbands and children. Oppression of a girl child is considered a disgrace. The parents who bring up their daughters well are promised of better rewards in the hereafter. The duty, not the right, the duty of education, as the Prophet said, is a duty on every Muslim, be it male or female.

During marriage, the bride is entitled to a gift from the groom in terms of mahr (dower) rather than the prevalent dowry which is the cause of a lot of social disgraces imparted on women. Islam allows the women to retain their identities and properties even after marriage and consider the relation to be that of partners rather than of master and slave. Even in the case of dispute both the partners have an equal say and are entitled to absolve the relationship. Even motherhood is a divine sanction in Islam where the Prophet has enjoined the Paradise to be at the feet of a mother.

Having pronounced all the above recognition of women in Islam it can be rightly said that Islam empowers women in a befitting manner.