Liberation from the unjust - A victory of gender justice, women empowerment and equality in society with special reference to Shayara Bano case by -Harshita Jadon
The main goal of this Research paper is to state andelaborate the real meaning of “Triple Talaq”. In this research paper different types of talaq under Muslim laws will be discussed along with the society’s mainpoint on the topic triple talaq. The paper will precisely discuss laws accordingwith the research’s topic and how even after opposition from many , triple talaq became a step towards gender justice and equality for Muslim women of our country.
“Subi Begum was waiting outside a civil court for the hearingof a case that wasfilledby her and that she has been fighting for many years now”
She said, “I feel at peace when I think that now a husband cannot just give a talaq at whim. He has to be wary of the consequences and will think twice”.2
Subia Muslim religion women who married into a Indian family against the wish of her family members. But as time passed, subi found other husband and his abusive traits. He continuously started threatening her to give her an triple talaq, knowingabout that she’s a Muslim, which she did jot accept. She was left with nowhere to go as she couldn’t even return to her own parents because of the inter religion marriage she had without their wish. But after tryingforseveraladjustments, she was allowed to live in a single room with her daughter in the house of herin-law’s house.
“where is a woman’s right to equality?” Even today, to manyof the peopethe word “woman”and “right” in the same sentence might not digested by them, because since a longtime back women have to fight for “something that they deserved as a human being” i.e. women’s fundamental right that they have for “being treated equally as men”, but they never really got that, on the basis of being a part of a gender in this society, which the so-called society call and see as inferior and notdeserving
Triple Talaq Under the Muslim law is a type of divorce where husband if pronounce “talaq” word thrice or give it in writing or in electronic form it will be accepted as Divorce between both husband and wife.
“Triple talaq is also known as “Talaq-e-biddat”, instant divorce and “talaq-e-mughallazah” Different types of namesare used by different people acrossfollowing the religion. Triple talaq is a type of Muslim Divorce which has been used and followed by people of Muslim religion in our country, India. Triple talaq is specially followed by Hanafi Sunni Islamic school of jurisprudence”.
According to the Holy book of Quran , marrige is coming together of two different people of two different genders in “macadam and rahma” also understood as love and mercy.
If we go through according to Islam , “marriage” is “a contract between a man and woman to live together as husband and wife the marriage contract is called a nikah” but even after this “marriage is partially sacred and partial civil contract”. Marriage under the Islam is a sacred ritual, it also gives both men and women a right to separate or get out of an unhappy marriage and does not ask or stops people to stay in a unhappy or unhealthy relationship at any cost. “But the problem arises at this point , it is known by many and all that under Muslim law, Husband is the one who is given all the power or most of the power or authorization when it comes to giving or taking talaq in the marriage which consists of two both husband and wife”.This concept is very wrong.
A Muslim husband cannot divorce his wife according to his wish because of petty issues or without any solid disagreement or fights between the two just by pronouncing , typing or sending in written the word “talaq” thrice and break their marriage without having wife’s consent and even without her wish. This is totally wrong, inaccurate and unsound.
“Prophet Mohammad pronounced talaq divorce by the husband with his will and without the intervention or participation of court to be the most repellent before Allah of all permitted things”.
Triple talaq has always been source or reason behind the injustice to the Muslim women at the first place because of its instant nature and irrevocable nature. The practice of Triple talaq gained more heat and news around it between people of every religion when LokSabha passed the “Muslim Women (Protection of Rights on Marriage) Bill, 2017” declaring theusingof Triple talaq as “void and making it a punishable offence”.
As the Bill states that “the mere pronouncement of triple talaq would be a cognizable and non- boilable offence, it was met with widespread opposition on the ground that there would be a possibility of its misuse Curtailing the liberty of a person by imprisoning him for the such pronouncement raise important issues of criminal and constitutional law. Thus, it becomes imperative to deliberate upon these issues”.
Muslim laws or Islamic laws are not same as the laws-passed by law makers or other authorities of a country. Muslim laws are not man made and are originated from the Divine. Islam signifies “submission to the will of God and means peace, purity, salvation, and obedience”.
For Muslims they have only one god and that is Allah. Sharia is the Muslims traditional Islamic law or around which Muslim law revolves. The Arabic word “Sharia “came out from Allah the reason why “Muslims consider it as holy”. “Muslims considered it a word of god which controls and also examine at the human conduct”. The Sharia is also derived from Prophet Mohammed’s principles and from the work of some “legal scholars who were Muslim and they interpreted his teachings”.
Sharia (as understood, “the path leading to the watering place”). The sharia law represents a “divinely advice path of conduct that leads all Muslims toward a practical expression of religious conviction in this world and the goal of divine favour in the world to come”. Muslim laws main objective is to guide the followers of it’s laws to understand “how they should lead a life according to their god or Allahwish.
A Muslim may turn to sharia law for family or business guidance or if he finds any difficulty while wondering what to do at a certain situation he can get in touch with a law scholar of sharia and can ensure that his actions are not against his laws and his religion.
After the deathof the Prophet Muhammad , the direct connection hat he had between the divine or Allah and human beings was over, and the advised path of conduct of the divine power was then fixed and immutable and. The image in wholeof the Sharia is thus “one of unchanging continuity, an impression that generally holds true for some areas of the law, such as ritual law”. However, “something that is not known by anybody can be explained in varying ways, and, over time, the diversity of possible meanings of the divine saying of Allah has produced a broad array of positions on almost and every possible point of law”.
Quran is the main source for Muslim laws all over theworld. Quran is a “holy book” or main scripture of Muslims around the globe. Quran explains the Divine guidance of allah to every Muslim. Its interpretationtoprophetMuhammad (peace be uponhim) and his practical implementation of “the-revelation, completed God’s blessing onhumans and, in providing us allwith a belief and value system that is valid for all timesandfor future”.
The Holy Book of Quran“confirms the revelation of the values and laws that are supposed to be followed by his followers given to earlier Prophets, though there alor first revaltion are not accessible to humans of any where or, in the form they were originally”. Most understandable language and message quran gives that directly appeals to the human heart have caused this Divine book to-move nations and civilization sand it will continue to show path and look after to all of those people who with sincere and pure heart will turn towards the God for his blessings or guidance.3
The Holy Quran has remained unchanged and untouched but interpreted for around1500 years now. There are millions of copies of the holy book Quran circulating in all over the globe today are all same as to one another because it’s a interpretation of god and thus comes down to a single letter. And “this is not seen as strange since Allah says in the Holy Quran by himself that no-one has to guard or protect the holy book as he himself will guard this book”.
The Quran represents “the Allah or Divine guidance for every Muslim. Prophet Muhammad (peace be upon him) and his practical implementation of the revelatio completed God’s blessing for humanity, in providing us with a belief and value system that is valid for all the time”.
For the followers of Islam or for the Muslims, holy book of Quran for all of them is the Word of God and consist of complete guidance for mankind. Quran mostly talks about god or allah. “Allah’s attributes and man’s relationship with him. But it also consists guidance for its followers, historical history of certain prophets and peoples ,argument for accepting Muhammad as their genuine Prophet and good news for the believers-and warnings for those who don’t believe4in institution of god or in religion”.
Triple talaq is known as “Talaq-e-biddat used by Muslim husbands to divorce their wives or to dissolve their marriage. It is a kind of divorce in which pronouncing or announcement made by the husband in a single tuhr, I divorce you thrice or separately I divorce you, I divorce you, I divorce you and also at the time of pronouncement of the word Divorce by the husband the presence of the wife is not required. She can be divorced even without giving a reason behind it. The expression “Talaq” refers to the termination of the marital relationship or status by the husband under Muslim law. Triple talaq or talaq-e-biddat is been practiced since the very old times in India. Triple Talaq is an old practice among Sunni Muslims. This practice is not presentor mentioned in the holy book of Quran and notthe Sharia lawas well”.
According, to the Holy book of Quran marriage between two individuals should be done with mutual consent and choice. At a point in life if when the harmony between both husband and wife can’t be restored, the Quran the non courage and permits the life partners to finish their marriage. Though our communities takes divorce very seriously and soa way to compromise or to save the marriage.
At any given point of time whenever a situation comes when the marriage between both the individuals can’t be continued with harmony and peace and love, the Quran allows and permits both the life partner to dissolve the marriage. The Quran states two different means to maintain a distance in between from rushing into separations, the holy book of Quran states and ask followers to have “two waiting periods of three months prior to the separation so as to give the spouse time to rethink his choice, and a man who makes a vow not to have physical relationship with his significant other, which would lead to automatic divorce, is allowed a four-month term to break his vow”.
History of Triple Talaq
Triple talaq“existed everywhere in the Arab society of the time then.
According to Islam, the practice of Triple talaq was not introduced by it and even Islam tried every way possible to reform in a very humane way”.
At no point in Islam does it support , promote or suggests that a husband is the only one to take decisions regarding his marriage and is free to end his marrige in an “irrational and unreasonable manner”.
The behest of Quran regarding Separation is “righteous women are obedient, guard (the property and honor of their husband in (their) absence with the protection given by Allah. As for women of whom you fear rebellion, convince them, and leave them apart in beds, and strike them. Then, if they obey you, do not seek a way against them. Surely, Allah is the Highest, the Greatest.If you fear a split between them (the spouses), send one arbitrator from his people and one from her people. If they desire to set things right, Allah shall bring about harmony between them”.5
Islam allows talaq, subject to several conditions of a particular nature, their main motive or reason behind it being to not encourage the male from using his right without thinking about it or taking decisions without any considerations from his side.
The Holy book of Quran asks all the men to not decide in hurry and to patiently think before taking the step towards ending his marriage.
Since, “you may dislike something about your wife but, maybe, god has put in her some good for you”. There is nosuch thing in the holy book of Quran that shows this practiceis left to individual’s choice or judgment.
Talaq is not just a word, on utterance of which the marriage between the two individuals will come to an end. Merely by speaking the word, but instead a procedure which must be very thoroughly and should be followed with great attention. Only if “all the prescribed and mentioned steps of the procedure of talaq are duly performed by the spouse only then a marriage will be dissolved or will come to an end with divorce”.
But Unfortunately, “mostly all religious interpreters of Muslim law allow or give effect to a talaq pronounced by a man even after knowing that it violates and is violations of the true Islamic law and procedure for divorce, as under the Holy Book of Quran calling it Talaq-ul- Bidat (innovative divorce)”.
According to these traditional Interpreters , a Talaq-ul-Bidat is “sinful but effective”—a strange statement reads in English as “bad in theology but good in law6.”
But if we talk about The Holy book of Quran , the concept of Instant talaq or triple talaq or as also known as Talaq-e-biddat is alien to Islam as not only it is wrong but also it totally goes against the very spirit of the practice og Divorce or talaq as given or mentioned in the Holy book of Quran.
According to many, even when the Prophet came to know about a men who chose to divorce his wife by pronouncing Talaq at a time , Prophet was not happy and went on saying “Are you trying to play with the Holy Book of Allah who is Great and Prominent while I am still among you”?
Classification of talaq
Under Muslim law, when a divorce is proceeds front the husband it is then called as talaq and when the same takes place from the side of the women or wife it is then called as Khula.
When talaq between both husband and wife is done mutually and with consent of both it is called as Muharaa.
There are may arise some circumstances or situations under which the wife has to move to qasi or court to get herself out of the marriage known to be as faskh.
Divorce by Husband may be classified into :
After theDeath of the Husband By Act of the Parties
By Husband :
- Talak-us-sunnat (i)Ahsan
- Ila (Vow of continence) (d)Zihar (Injurious Comparison)
“Muslim Women (Protection of Rights on Marriage )Bill, 2019”
On june 21, 2019 “The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was introduced in LokSabha by Law minister of our Country Mr. Ravi Shankar Prasad”.
It takes the place of an Ordinance was made public on the date February 21, 2019.
The Bill makes all the renouncement consigning of in written, in electronic form or verbal to be void and illegal.
Talaq-e- biddat refers to “divorcing their wives or to dissolve their marriage. It is a kind of divorce in which pronouncing or announcement made by the husband in a single tuhr ,I divorce you thrice or separately I divorce you , I divorce you, I divorce you and also at the time of pronouncement of the word Divorce by the husband the presence of the wife is not required”.
- Offence and penalty: The Bill make pronouncement of talaq-e-biddat a cognizable offence, “which can lead a man practicing it up to three years of imprisonment along with a fine”. (A cognizable offence is an type of offence one for which a police officer may arrest an accused person without having a warrant.) The offence will be cognizable only if information relating to the crime is provided by:
- Wife – against whom the talaq is given by her
- Family members or anybody but should be related by
- The Bill provides that the Magistrate may grant bail to the accused. The bail to the men may only be granted only once after hearing the wife statements in the court(against whom talaq-e-biddat has been pronounced by her husband), and if after women’s statement the Magistrate is satisfied with the that there are reasonable grounds and bail can be granted then the judge may grant him
- The offence may be left for settlement between the parties by the Magistrate upon the request made of the woman (against whom talaq has been declared).
Compounding refers to a procedure where the both the sides or the parties agree to put stop on any legal proceedings and settle the dispute with in them.
The terms and conditions of the meld of the offence will be determined by the Magistrate. Allowance: “A Muslim woman against whom talaq has been declared, is entitled to get subsistence allowance from her husband for not only her herselfandforherdependentchildren. The amount of the allowance will be decided by the Magistrate”.
- Custody: Adwoman to whom such talaq has been declared, is entitled to seek custody of her minor children if she wants too. The manner of custody will be decided by the respected
Conditions of Muslim Women In India:
Muslim women of India are in a really bad condition. Their life is extremely depressing. Right from the beginning women of all the ages have been socially, physically and mentally abused and treated as nothing under the name of religion for the same of traditions and customs.
As, Muslims are “in minority in India, their women’s position is far more detestable because there is an endeavor to protect the community identity that Muslim women to participate in development processes”. Under a survey it was found out , that majority 69.75 to be exact % of women would not want teach their daughter or other girls of their family after their primary education. Further many middle-class women who have all the essentials and required capabilities and conditions and points but are not permitted to go out and look for work for themselves to be independent since ‘respect of community’ is likely to get smashed . This has brought “about the general backwardness of Muslims and especially that of our Muslim women in India”.
Shayara Bano case
Triple Talaq declared as Unconstitutional by a Constitutional Bench.
On the day of 22nd August 2017, Triple Talaq was declared as an unconstitutional practice by the Supreme Court with 3:2 majority
- Majority: RohintonNariman J and U. Lalit J. *Oppose: Kurian Joseph J.
- Dissenting: CJI S. Khehar and Abdul Nazeer J.
Shayara Bano was wife to “Rizwan Ahmed for 15 years”. Rizwan Ahmed divorced her wife Shayarabano in the year 2016, by pronouncing triple talaq(talaq-e-biddat)
A writ petition was “filed in the supreme court by Shayara Bano asking it Supreme Court to hold three practices – talaq-e-biddat,
polygamy, nikah-halala – unconstitutional as they violate Articles 14, 15, 21, 25 of the Indian Constitution”.
Talaq-e- bidat “a practice which gives a man the right to divorce his wife and end marriage from his side by pronouncing the word talaq thrice in times in one sitting without his wife’s consent or even without her knowledge or will”. On the other hand, NikahHalala a “practice where a divorced woman or a wife divorced by her husband who wants to remarry her husband will have to marry and obtain a divorce, from a second husband or other man who’ll be her husband for that period of time before she can return being the wife to her first husband as her wife like before”. And polygamy “a practice which permitsMuslim men tomarry more than one wife while being in marriage with other wives as well without a divorce to the previous or first wife”.
16th of February 2017, on this day supreme court asked Shayara Bano, the Unione of Indiaa , and the various women rights organisations , along with All India Muslim Personal Law Board (AIMPLB) to submit a submission in writing on the issue of talaq-e- bidat, nikah-halala and polygamy.
The Union of India and the women rights organizations like “Bebaak Collective and Bhartiya Muslim MahilaAndolan” (BMMA) chose to stand still with MsBano’s plea that practices like triple talaq are unconstitutional and do not do justice with muslim women of anywhere . The AIMPLB also put the point that “uncodified Muslim personal law is not subject to constitutional judicial review and that these are essential practices of the Islamic religion and protected under Article 25 of the Constitutio of India”.
After taking the petition filed by Shauara Bano in the court , The supreme Court of India formed a constitutional bench comprising of 5 respected judges on the day of 30th of Marche 2017. The first shayarabano case in the Supreme Court of India was heard by the “Bench of 5 respected judges was on 11th May 2017”. After which the Bench comprising of 5 respected judges gave their decision in the Triple Talaq Case, on the date was 22nd august 2017 and declared with the judgment that that the practise of Thripletalaq given to women or wife by her Husband by was unconstitutional .
The judgment had a majority of 3:2. Parties To the case
Shayara Bano Respondent :
“Union of India; Ministry of Law and Justice; Ministry of Women and Child Development; Ministry of Minority Affairs; National Commission for Women; All India Muslim Personal Law Board; Rizwan Ahmad”.
“Jamait-Ul-E-Hind; Centre for Study of Society and Secularism; JamaitUlama-i-Hind; ZakiaSoman; Bharatiya Muslim MahilaAndolan; Forum for Awareness of National Security”.
THE ON-GOING CONFLICT OF OPINIONS OPPOSITION TO TRIPLE TALAQ
“The practice faced resistance from the Muslim women, some of whom even filed a public interest litigation in the Supreme Court against the practice, terming it regressive”.
Shayarabano who filed the complaint wanted for section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, to be removed, describing
It as being against the Article 14 of our Constitution of India (equality before the law) Sect. 2 of the “Muslim Personal Law (Shariat) Application Act, 1937”, states:
“Application of Personal law to Muslims not withstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowme) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law”(Shariat).
Article 14 of the Indian constitution states:
“Equality before law The State shall not deny to any person equality before the law or the equal protection provided for the of the laws within the territory of India prohibition of discrimination between the people of the country of India on the basis of of religion, race, caste, sex or place of birth”.
SUPPORT OF TRIPLE TALAQ
Triple talaq has seen support from “All India Muslim Personal Law Board” (AIMPLB), “a non-governmental body that supervises the application of Muslim personal law. It believes that the State does not have the right to intervene in religious matters”.
AIMPLB also“ issued a code of conduct in April 2017 regarding talaq in reply to the controversy rising over the practice of triple talaq”.
Not only that but It also warned that those who give divorce to their wives even without any reason or for reasons not given under shariat will be boycotted by the people and will not be accepted by them and in addition to calling for boycott of those who pronounce Talaq-e-biddat recklessly and without justification . Also, In addition to this, it also stated “that it should be delivered in three sittings with a gap of at least one month each”.
Cases after ban on Triple Talaq
A case of talaq-e-biddat was filed at police station at saddavati , the first in state of Karnataka after the scrapping of triple talaq.7
- Parliament passed the Muslim Women (Protection of Rights on Marriage) Act 2019, which criminalized talaq by the husband to his wife in the form of triple talaq.
- On the date of 24th August in 2019 , a man was arrested in Uttar Pradesh’s Muzaffarnagr district for pronouncing and divorcing his wife by pronouncing the word ‘talaq’ three times in one sitting , a practice which has been criminalized, ss told by the police of the area.
- Maharashtra state police also booked its first case, with Mumbraa police filing a case against a “Vikhroli resident for giving and sending his wife a triple talaq message though WhatsApp after the criminalization of talaq-e-bidaat”.8
How Is Triple Talaq Unjust To Women?
Imagine living a life with a mental insecurity for forever that years of your marriage together can easily be ended just by the pronunciation of three words, thrice. That’s exactly what most of the Indian Muslim women used to feel.
According to me, Triple Talaq is a practice that has been just “slapped on the face of the Muslim women”. It simply “crushes their emotions without giving a thought about it, Muslim women they are left with no space, and are left with no option then to live in poverty and living in the society as of India that to as being a single woman living on their own without any involvement of men in the house or support is usually not seen as okay by all of them living in around us in the in Indian societies or in our country”.
It just not only lets down that women’s “social status” because of the amount they put into their daughter’s marriage and setups , it along with that leaves her or a woman without any of the things or support of survival on her own. She gets cornered by our society and not only that in many of the cases, she don’t have means to support her livelihood to just for herself due to our Indian society systematic marginalization of women and all the expectation from them of the domestic work falling to complete just on their shoulders on women.
The rule number first of Talaq triple is never followed, and so because of that the issue of children’s allowances taht the husband and wife had together and the wife’s alimony doesn’t even arises while everything.
In all over our country India, weddings between two families and individuals are an “extravagant affair”, its a simply burden that lies over the shoulders of the bride’s family for their whole life, right from the day she’s born.
There is a “societal pressure” to spend a lot and to have s lavish arrangements and marriage ceremony and give a lot of dowry to the bridegroom’s family or even more than that.
“Islam actually advocates simplicity and extravagant affairs are discouraged”.
Hence, “while the bride is usually deeply burdened, the groom enjoys a number of favours because of which if given the chance to him, he would be quick to divorce the woman simply through three pronouncing of the word and move on to remarry someone else leaving the wife with no ways”.
Many men in our country may and usually do take this practice an advantage to extract money by using women and her family throughout their lives .
“Zoya Hasan”, an academic and activist, once said, “Muslim women are triply disadvantaged, as members of a minority, as women, and most of all as poor women”.
“Dr Asma Zehra”, a senior member of AIMPLB which “opposed the ban on triple Talaq”, said, “If one does not agree with the Muslim Personal Law Board, they are free to get married under the Special Marriage Act”.But also asked that “does their social and economic condition allows them to be so well-aware”?.
“There is no tool for developingmore effectiveascomparedtothe empowerment of women -Kofi Annan”
Steps towards Women Empowerment
What really happens when the Supreme Court terms an year old practice unconstitutional the same practice that was against the “rights of the women of the country”? A breakthrough.A literal breakthrough for a country like “India” which is on the way towards growth and progress consistently, in both economical and as well as for the security of its citizens and well-being of its people. It is a belief of the citizens on their law and their courts that their rights will be protected against all odds that comes its way.
The fact that the “battle of rights of the women and the breakthrough that was needed somuch was fought and won by determined Muslim women and specially women” . Women in themselves should help and remove the narrative of the singular stereotype – “the blurry figure behind the burqa, illiterate, disempowered and left to fend for herself”. Ignored by all political leaders for continuous since independence since Independence, she is, in fact, perfectly able of article and standing up for her rights to be an equal citizen of this country.
But now it is agood timeto as to keepreminding ourselves and about just how far we still have left to travel on the road to gender equality and women empowerment.
In Muslim families around the country alot of eyes has lighten up with hope and relief because Instant Triple Talaq Bill is now been passed in Rajyasabha for 3 years.
Not even a fool think that Instant Triple Talaq Bill will change the attitude of man into a positive attitude towards his wife when his crime of triple talaq is scrapped and he will be sent behind the prison for next three years because of his foolishness behind practicing the practice
Looking at the“social and historical background of our country India, a bitter truth that has to be accepted is that women are always considered as the inferior gender from the men of our country. Our society since ages have always and possibly even till today’s date is discriminating between women and men in our country”.A woman’s “opinion, beliefs, rights, choices were never given importance and were never treated as one as compared to thay of men’s of our country and instant Triple Talaq is an example of one such practice. Divorce, in my opinion, is amongst the one of the most important decision of a person’s life and it affects the lives not just of men but of women as well of both spouses equally, then also, the so-called inferior gender that is women has no say in it”.
Triple talaq is a great victory for Muslim women of our country. “But it is not just the only one that is needed in today’stime”.
Hence, the government’s intention and main focus is to empower Muslim women of our country is commendable and apprising as well . But “thereal results only will onlybe visible with measures to improve and promote women’s employment overall the country”.
1 Student at Amity Law School, Noida