On Triple Talaq by Harshit Kiran



Triple talaq, also known as talaq-e-biddat, instant divorce and talaq-e-mughallazah (irrevocable divorce), is a form of Islamic divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence. It allows any Muslim man to legally divorce his wife by uttering the word talaq (the Arabic word for "divorce") three times in oral, written or, more recently, electronic form.
Background
Muslim family affairs in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937 (often called the "Muslim Personal Law"). It was one of the first acts to be passed after the Government of India Act, 1935 became operational, introducing provincial autonomy and a form of dyarchy at the federal level. It replaced the so-called "Anglo-Mohammedan Law" previously operating for Muslims, and became binding on all of India's Muslims.
The shariat is open to interpretation by the ulama (class of Muslim legal scholars). The ulama of Hanafi Sunnis considered this form of divorce binding, provided the pronouncement was made in front of Muslim witnesses and later confirmed by a sharia court. However, the ulama of Ahl-i HadithTwelver and Musta'li persuasions did not regard it as proper. Scholar Aparna Rao states that, in 2003, there was an active debate among the ulama.
In traditional Islamic jurisprudence, triple talaq is considered to be particularly disapproved, but legally valid, form of divorce. Changing social conditions around the world have led to increasing dissatisfaction with traditional Islamic law of divorce since the early 20th century and various reforms have been undertaken in different countries. Contrary to practices adopted in most Muslim-majority countries, Muslim couples in India are not required to register their marriage with civil authorities. Muslim marriages in India are considered to be a private matter, unless the couple decided to register their marriage under the Special Marriage Act of 1954. Owing to these historical factors, the checks that have been placed on the husband's unilateral right of divorce by governments of other countries and the prohibition of triple talaq were not implemented in India.
Practice
Triple talaq is a form of divorce that was practiced in Islam, whereby a Muslim man could legally divorce his wife by pronouncing talaq three times. The pronouncement could be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or social media. The man did not need to cite any cause for the divorce and the wife need not have been present at the time of pronouncement] After a period of iddat, during which it was ascertained whether the wife is pregnant, the divorce became irrevocable. In the recommended practice, a waiting period was required before each pronouncement of talaq, during which reconciliation was attempted. However, it had become common to make all three pronouncements in one sitting. While the practice was frowned upon, it was not prohibited. A divorced woman could not remarry her divorced husband unless she first married another man, a practice called nikah halala. Until she remarried, she retained the custody of male toddlers and prepubescent female children. Beyond those restrictions, the children came under the guardianship of the father. 
Triple talaq is not mentioned in the Quran. It is also largely disapproved by Muslim legal scholars. Many Islamic nations have barred the practice, including Pakistan and Bangladesh, although it is technically legal in Sunni Islamic jurisprudence. Triple talaq, in Islamic law, is based upon the belief that the husband has the right to reject or dismiss his wife with good grounds.
The All India Muslim Personal Law Board (AIMPLB), a non-governmental organisation, had told the Supreme Court that women could also pronounce triple talaq, and could execute nikahnamas that stipulated conditions so that the husbands could not pronounce triple talaq. According to AIMPLB, "Sharia grants right to divorce to husbands because Islam grants men a greater power of decision-making." 
Law related to Triple Talaq
Triple talaq became illegal in India on 1st August 2019, replacing the triple talaq ordinance promulgated in February 2019.
The Muslim Women (Protection of Rights on Marriage) Bill, 2019 passed on 26th July 2019 after a very long discussion and opposition finally got the verdict to all women. It makes instant triple talaq (talaq-e-biddah) in any form— spoken, written, or by electronic means such as email or SMS, illegal and void, with up to three years in jail for the husband.
The Government first introduced the Act to Parliament in 2017.  MPs from Rashtriya Janata DalAll India Majlis-e-Ittehadul MuslimeenBiju Janata DalAll India Anna Dravida Munnetra KazhagamIndian National Congress and All India Muslim League opposed the bill. Several Opposition lawmakers called for it to be sent to a select committee for scrutiny. It was passed on 28th December 2017 by the Lok Sabha, or lower house of the Indian Parliament, where the ruling BJP held the majority of seats.
In a major political win for the Modi government, the Rajya Sabha, or upper house of Parliament, where the ruling NDA did not have a majority, approved the bill (99-84) after a lengthy debate.
The bill followed a 2017 Supreme Court ruling the practice of instant triple talaq is unconstitutional and a divorce pronounced by uttering talaq three times in one sitting is void and illegal.
Muslim Triple Talaq Petitioner Ishrat Jahan welcomed the Bill when it was presented.
The triple talaq bill proposed by the previous Modi government lapsed when an election was called and the Lok Sabha was dissolved before the bill was sent to the Rajya Sabha for approval.
Judgement
The case was called Shayara Bano v. Union of India & Others (Click Here). The bench that heard the controversial Triple talaq case in 2017 was made up of multifaith members. The five judges from five different communities are Chief Justice JS Khehar (a Sikh), and Justices Kurian Joseph (a Christian), RF Nariman (a Parsi), UU Lalit (a Hindu) and Abdul Nazeer (a Muslim). 
The Supreme Court has to examine whether Triple talaq has the protection of the constitution—if this practice is safeguarded by Article 25(1) in the constitution that guarantees all the fundamental right to “profess, practice and propagate religion”. The Court wants to establish whether or not Triple talaq is an essential feature of Islamic belief and practice. 
In a 397-page ruling, though two judges upheld validity of Instant triple talaq (talaq-e-biddat), the three other judges held that it was unconstitutional, thus barring the practice by 3–2 majority. One judge argued that instant triple talaq violated Islamic law. The bench asked the central government to promulgate legislation within six months to govern marriage and divorce in the Muslim community. The court said that until the government formulates a law regarding instant triple talaq, there would be an injunction against husbands pronouncing Instant triple talaq on their wives.
Legislations
·         The Muslim Women (Protection of Rights on Marriage) Bill, 2017
·         The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018
·         The Muslim Women (Protection of Rights on Marriage) Bill, 2018
·         The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019
·         The Muslim Women (Protection of Rights on Marriage) Act, 2019 (Click Here)
This article has been sourced from-

Mr. Harshit Kiran is Lead student Editor of Mylawman. He can be reached at [email protected] alert-success


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