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Constitutionality of Triple Talaq
Recently, the Supreme Court of India has given its monumental landmark judgement in Shayara Bano v. Union of India, which is popularly known as the “triple talaq case”. This case has also questioned the constitutional validity of certain practices of Muslim personal law such as triple talaq, polygamy, nikah halala and many more. It has created political controversy across both urban and rural classes in India and has tested the contentions of the religious, political and legal dimension of Uniform Civil Code. While All India Muslim Personal Law Board (AIMPLB) has blamed the secular authorities for interfering with religious law.
Meaning of Triple Talaq-
Sharia Law ( a body of Islamic Law) has procedure to give divorce , in which a husband can give divorce to his wife by uttering Talaq thrice.
This power of divorce is exercised by exclusively men from Muslim community and women are debarred from doing so.
According to Hanafi’s when the triple talaq is pronounced wife will become completely alienated from the husband and he cannot remarry her. She becomes (haram) totally prohibited from him. Neither he can take her back nor he can go for fresh nikah with her.
Her previous husband can go for Nikah with the woman only when she get marries to other person and that person has to divorce her on marital conflicts or if she becomes widow. So there is no easy possible options for the couple to remarry.
When Shayara Bano, first women to challenge such practice has filed her petition in the court, many people have considered that triple talaq forms an essential part of Islamic belief and practice.
Why triple talaq was abolished?
Triple Talaq had given husbands the right to divorce their wives capriciously without providing any protection and substantiation. As per study approximately 92% of Indian population wanted that Triple Talaq should be removed.
Now days new media platforms like Skype, face book, text messages, email and WhatsApp are used to provide talaq and to break marriage.
Even various Muslim Countries have abolished this, including Pakistan, but it was still prevalent in India.
According to Centre- this practice is against constitutional principles like gender equality, secularism, international laws etc.
As per experts, this practice is highly patriarchal in nature and will demolish social fabric in coming years.
The major challenge faced by Supreme Court in delivering this judgment was -whether personal law can be subject to the Constitution at all?
Experts Opinion on this-
Many senior lawyers and experts of constitution has claimed that we do not have as such evidence to prove that Triple Talaq is an essential part of Islamic faith, and constitution provides protection to only those religious features which are essential and integral part of it, so it can be removed.
Constitutionality of Triple Talaq-
The first front is of constitutional protection—whether these practices are safeguarded under Article 25(1) of the Constitution, which guarantees the fundamental right to “profess, practice and propagate religion”?
Triple talaq do not offer justice to women rights guaranteed under the Constitution of India. It also do not offer gender and spousal equality in wedlock and beyond. Even the Quran does not sanction triple talaq in one go. According to Islamic scripture, the word talaq is spoken thrice over a period of three months. In such a manner, it demands time and patience in executing a divorce in the hope of making the union possible knowing that the couple is bound to have differences. This Quranic procedure has been laid down with a rationale to establish that marital coverture cannot be terminated in a state of sudden provocation, rage or whims. But these days it has become whimsical and capricious. The male counter parts from Muslim community are using Triple Talaq to get rid of marriage, without providing any protection and maintenance to their wives and children. Even though they know that their wife and children are solely dependent upon them as a result they became miserable.. Most of the time the burden of break up in marriage lies on women which badly hurts her dignity and when she wants to remarry other person, the flaws of her previous marriage do not let her live a dignified life. Thus indirectly the constitution was safeguarding those evil wilful defaulters, when it considers Triple Talaq as a matter of private sphere. It also questions the ideals of the constitution which guarantees right to equality and right to life with dignity.
The remark by the noted jurist Ram Jethmalani in this regard is meaningful. He termed the practice “abhorrent” and discriminatory on the ground of sex against the constitutional right to equality. He said it violates the tenets of the Quran, and no volume of advocacy can justify its retention. The government, has labelled all forms of talaq such as Talaq-e-Hasan and Talaq-e-Ahsan etc as “unilateral” and “extrajudicial” and thus they all are incompatible with the constitution of India.
Also the Article 44 of the Directive Principles in India sets Uniform Civil Code’s implementation as duty of the State. 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 different from public law, they cover issues of marriage, divorce, inheritance, adoption and maintenance etc. The case of Shayara Bano v. Union of India also touches the outlines of Uniform Civil code.
It disrupts the true meaning and spirit of the Quran on the anvil of individualism, the rule of law and human rights enunciated in the constitution.
Conclusion:
There is no doubt that triple talaq violates women’s rights to choose, right to equality and freedom, including freedom within the marriage. It gives fumes of patriarchal society where women is considered as subject of men and her dignity , right to life Etc. all are also subject of whims and fancies of her husband. Thus Triple Talaq is incoherent with Constitution of India.
