TRIPLE TALAQ - A HISTORIC JUDGEMENT

                                      TRIPLE TALAQ- A HISTORIC JUDGEMENT

                                            

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 stating the word talaq (the Arabic word for "divorce") three times in oral, written, or more recently, electronic form.

Triple talaq is a form of divorce that was practised in India, whereby a Muslim man could legally divorce his wife by pronouncing talaq (the Arabic word for divorce) 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.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 as a practice is not mentioned in the Quran or Sharia law. It is also largely disapproved by Muslim legal scholars. Several Islamic countries, including Pakistan and Bangladesh, have banned it, 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.

Legislation

The Muslim Women (Protection of Rights on Marriage) Bill, 2017

The Modi Government formulated a bill and introduced it in the Parliament after 100 cases of instant triple talaq in the country since the Supreme Court judgement in August 2017. On 28 December 2017, the Lok Sabha passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017. The bill make instant triple talaq (talaq-e-biddah) in any form — spoken, in writing or by electronic means such as email, SMS and WhatsApp illegal and void, with up to three years in jail for the husband. MPs from RJD, AIMIM, BJD, AIADMK and AIML opposed the bill, calling it arbitrary in nature and a faulty proposal, while Congress supported the Bill tabled in the Lok Sabha by law minister Ravi Shankar Prasad.19 amendments were moved in the Lok Sabha but all were rejected.

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018

On the grounds that practice of instant triple talaq was continuing unabated despite the SC striking it, the government issued an ordinance to make the practice illegal and void.

The provisions of the ordinance are as follows .

• Instant triple talaq remains cognizable with a maximum of three years imprisonment and a fine.
• Only complaint with the police by the wife or her blood relative will be recognised.
• The offence is non-bailable i.e. only a Magistrate and not the police can grant bail. Bail can be granted only after hearing the wife.
• Custody of the minor children from the marriage will go to mother.
• Maintenance allowance to the wife is decided by the magistrate.

The Muslim Women (Protection of Rights on Marriage) Bill, 2018

As the triple talaq ordinance of 2018 was to expire on 22nd January 2019, the government introduced fresh bill in the lok sabha on 17th December 2018 to replace the ordinance. 

The provisions of the bill are as follows: 

• All declaration of instant triple talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
• Instant triple talaq remains cognisable offence with a maximum of three years imprisonment and a fine. The fine amount is decided by the magistrate.
• The offence will be cognisable only if information relating to the offence is given by the wife or her blood relative.
• The offence is non-bailable. But there is a provision that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the wife and if the Magistrate is satisfied with reasonable grounds for granting bail.
• The wife is entitled to subsistence allowance. The amount is decided by the magistrate.
• The wife is entitled to seek custody of her minor children from the marriage. The manner of custody will be determined by the Magistrate.
• The offence may be compounded (i.e. stop legal proceedings and settle the dispute) by the Magistrate upon the request of the woman (against whom talaq has been declared).

The bill was passed by Lok Sabha on 27th December 2018 . However, the bill remained stuck in the Rajya Sabha due to the opposition's demand to send it to a select committee. 

The Muslim Women(Protection of Rights on Marriage) Ordinance,2019

As the triple talaq ordinance of 2018 was to expire on 22nd January 2019 and also because the triple talaq bill of 2018 could not be passed in the parliament session, the government has repromulgated the ordinance on 10th January 2019. On 12th January 2019, the president of the India Ram Nath Kovind approved the ordinance of 2019.