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Validity Of Triple Talaq

Divorce is described as the legal dissolution of a marriage. As a result, the divorce process is difficult for everyone involved, even the divorcing spouses. Talaq, as the urdu term for divorce, refers to the practise of divorcing one's spouse three times in one sitting, sometimes referred to as Triple Talaq. If a female is not menstruating or in a condition of purity, she is considered to be innovated (or wicked) (tuhr).[1]

Talaq is a contentious subject in Muslim personal law, which the author explores in light of current developments. Articles 14, 15, and 21 are given a reasonable interpretation in order to put an end to this discriminatory practise. Additionally, the researcher aimed to provide a global perspective on the Quran-based practise of Triple Talaq. Triple Talaq was declared illegal as a result of Shayara Bano v. Union of India and Ors.[2]

The researcher's objective is to offer a critical assessment of the 'Triple Talaq' controversy. It is thought that this will educate law students about Muslim personal law's divorce regulations.

Analysis
The source material for the purpose of this study is majorly collected from the secondary sources such as articles, books, journals, committee reports, newspaper reports, statutory provisions and rules of law, legal doctrines, guidelines published by regulatory authorities etc.

However, divorce is viewed as a necessary evil rather than a sin in Islam. "Of all permissible acts, Talaq is the most detestable to God," one Hadith (professor's saying) states.

Talaq is an Arabic word that translates as "Repudiation or Untying (women from marriage ties)". Once the word 'Talaq' is pronounced, the divorce process instantly begins, and the wife is not obliged to be present. Talaq, as stated in Moonshee Buzloor Rahim v. Laleefutoon Nisa, is an arbitrary act committed by the Muslim husband, who may divorce his wife at any time, with or without cause, under Muslim Law. He is not required to be there with his wife in order to say Talaq. While marriage is a civil contract that can be dissolved if the parties fail to fulfil the contract's declared purpose, it is critical to respect and honour marriage, which should last as long as possible.[3]

"Talaq," or divorce at the husband's request, has two definitions in Islam: "Talaq-al-sunnah" and "Talaq-e-biddat." Is 'Talaq al-sunnah' a variant of 'Hasan', in which three pronouncements are made during three consecutive "Tuhrs" (periods of the wife's purity) and Talaq is irreversible after the final pronouncement? Additionally, there is the option of 'Ahsan,' which requires a single Talaq to be delivered during the wife's 'Tuhr,' or the interval between her menstrual cycles, and that the divorce becomes official after three 'Tuhrs.'

When it comes to divorce, the 'Talaq-e-biddat', or 'Triple Talaq,' is regarded an atypical procedure. Mohammedan jurists regard it as one of the most sinful acts, and it is illegal in the United States. According to Ameer Ali, the Omeyad Monarchs adopted 'Talaq-e-biddat' in the second century of the Muhammadan era.[4]

Triple Talaq happens when the word 'Talaq' is said simultaneously, or during the same meeting, or on another occasion during the same tuhr period.

In terms of divorce, Islam accords equal rights to husband and wife because it views marriage as a civil contract. When the husband initiates the divorce, it is referred to as "Talaq," when the wife initiates it (as was the case following the Mussalman Law of Divorce reforms), it is known to as "Khula," and when both parties start it, it is referred to as "Mubaaraab."[5]

Quran and Triple Talaq
In terms of the Quran and Triple Talaq, there is no indication in the Quran that a single Triple Talaq involves three Talaqs.[6] The Holy Quran mandates a two-divorce limit to avoid unpredictable and fitful recurrent separations and reunions, as mentioned in verses 229-230. While reconciliation is possible following a second divorce, if the same couples divorce a third time, the divorce is final and cannot be reversed until the woman marries another guy and he divorces her.

Marrataan (twice) signifies repetition of the term in this verse "Talaq' or to grant divorce with the number of times it has been uttered specified.

Talaq, Talaq, Talaq, or the "three Talaqs" "When they are spoken or pronounced, they are deemed to be three. Rather than repeating the term "Talaq," "marrataan" implies to give Talaq a second time.[7]

When the Arabic word "marrataan" refers to "on another occasion after the first," as Shams Prizada argues in his book "Triple Talaq in the Light of the Quran and Sunnah," it never refers to verbatim repetition of a statement. Talaq-e-Bidat is regarded as the most unethical and inventive form of divorce because it contradicts both the letter and spirit of the Quran and was prohibited by the Prophet (PBUH).

The Holy Quran's verse '230' urges the husband not to destroy marital bonds if he experiences an outburst of passion or rage. Al Ghazaalee once declared that divorce is permissible in Islam only for legitimate grounds and in extreme circumstances of necessity, not for the intention of causing distress or harassment to the wife.

"The impression that a Muslim Husband may divorce his wife based on his whims is a significant misunderstanding of the Islamic Institute of Divorce," Mohammed Ali said in his book "Religion of Islam."

Although this is the situation at the moment, the majority of Triple Talaq cases (reported) were the consequence of an angry outburst or petty disagreement on the part of the spouse. Islam regards Talaq-e-Bidat as the most immoral and created form of divorce, as it violates the Quran and is prohibited by the Prophet (PBUH). As a result, in light of Quranic texts, it is vital that Triple Talaq is not considered an authentic part of Muslim Personal Laws, as it contradicts the Holy Quran's explicit mandates.

Judicial Pronouncements
Following decades of Muslim women's protests, the Islamic tradition of Muslim men instantly divorcing their wives has been declared unlawful, null, and void. The case was petitioned to the Supreme Court by seven victims and a women's group. Male religious officials, in particular, have opposed efforts by progressive Muslim women to eliminate the practise of forcing men to divorce their wives.

According to campaigners, a lack of fundamental understanding among India's Muslim population has made it more difficult for women to organise legal and social campaigns opposing this practise. Attempts to save the marital tie in the event of an immediate Triple Talaq are impossible and will never occur, leaving the divorced lady to fend for herself.[8]

Could the fact that a husband filed for divorce without notifying his wife in writing constitute grounds for divorce as of the day the statement was submitted? This issue came up in the other case, Shamim Arsa v. Uttar Pradesh. According to the judge's opinion, a husband's written declaration of divorce does not constitute Talaq, and hence it cannot be ruled that Talaq takes effect when his spouse makes the written statement of divorce public. 'No ancient Muslim holy book or scripture contains a reference in its text to a form of divorce that has been sanctioned by the High Court and the Family Court,' the judge stated in her dicta.[9]

Neither an affidavit nor a pleading has been brought to our attention that provides that the date on which the wife learns of the husband's statement in the copy of his affidavit or pleading served on her that he has already divorced her on an unspecified or specified date will be considered the date of the effective divorce "The Allahabad High Court, which hears cases involving Muslim personal law and is home to approximately 19 percent of India's Muslim population, has ruled strongly in favour of Muslim women on the contentious issue of Triple Talaq.

In October 2015, a Supreme Court panel considering a case involving the Hindu Succession Act requested the establishment of a separate court to explore whether Muslim women face gender discrimination in divorce proceedings. Mukul Rohatgi, a lawyer, was enlisted to assist in legal challenges to the validity of Triple Talaq. The administration has been outspoken in its opposition to Triple Talaq.

A Constitutional Bench comprised of five judges was convened in May 2017 to consider the case. The court first spoke with the All-India Muslim Personal Law Board (AIMPLB) to see whether they would allow women to reject Triple Talaq.[10]

In another instance, Masroor Ahmed v. State, the position of Muslim women under so-called customary law is judged revolting. As a result, every Muslim woman's organisation has condemned customary law for allegedly breaching their human rights. They desire the application of Shariah (Islamic personal law) on them as well. They will be elevated to their proper position upon the establishment of Muslim Personal Law. If this bill is passed, it will have a tremendously beneficial effect on society by clearly defining the public's rights and obligations."

As these remarks demonstrate, Indian judges are no longer willing to submit their sense of justice to the whims of Islamic clerics and political correctness. In August 2017, the court declared the practise unlawful due to the AIMPLB's objections, which argued that it dates back 1,400 years.

Thus, the Supreme Court of India's judgement in Shayaro Bano v. Union of India must be held to violate Article 14 of the Indian Constitution. Because the 1937 Act recognises and enforces Triple Talaq, it falls under the definition of "laws in operation" as specified in article 13 and must therefore be repealed because it is invalid for recognising and enforcing Triple Talaq. The learned Attorney General and those who backed him contended that Section 2 of the Muslim Personal Law Act, 1937 discriminated against non-Muslims in these circumstances, but we see no reason to repeat that conclusion, as it has already been determined to be arbitrary.[11]

Conclusion
Through the practise of triple Talaq, Muslim men have absolute ability to divorce their wives without their consent. This is a discriminatory practise that deprives women of financial stability, legal protection, and social support. They are guaranteed equality and a decent existence under Articles 14 and 21 of the Constitution, respectively.

The Constitution suffered a significant blow to fundamental liberties when the Supreme Court of India confirmed the constitutionality of Triple Talaq in A.S. Parveen Akthar v. Union of India. Individuals have a right to privacy, as stated in Articles 14, 15, and 21 of the constitution, and this obviously falls short of that. Equal opportunity is a cornerstone of India's democratic system.

According to the Supreme Court, equal opportunity for all is a fundamental pillar of the Constitution. Article 15(1) of the Indian Constitution prohibits state discrimination on the basis of religion, race, sex, or any combination of these factors. Talaq in this form is a violation of Article 15 since it discriminates against women based on their religion and sexual orientation. According to Article 21 of the Constitution, a person's right to life and liberty may be denied only by law. g By diverging from the conventional divorce arrangement, the Triple Talaq jeopardises the integrity of Article 21.

After the Supreme Court struck down the centuries-old practise of Triple Talaq in a landmark judgement, the centre has taken a step toward criminalising it. Legislators in India's Rajya Sabha are still debating the bill, which was passed by the Lok Sabha but has not yet been adopted by the upper house due to the fact that it criminalises divorce even if the wife is not evicted or separated from her husband.

Following the Supreme Court's unprecedented decision to prohibit the centuries-old practise of Triple Talaq, the government has taken a step toward criminalising this practise. Legislators in India's lower house of parliament have passed the Talaq-e-biddat bill, however the upper house of parliament has not yet ratified it due to concerns about some of the suggestions.

States are authorised by the constitution to take measures to improve women's status. India has accepted a number of international conventions and protocols aimed at ensuring women's equality in society. India has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Triple Talaq is prohibited by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). To comply with CEDAW, India must enact legislation protecting Muslim women against unilateral divorce and granting them the same rights as men.

There is an urgent need for comprehensive law that adheres to the directions. Due to the progressive nature of Islamic law, a Uniform Civil Code may be based on it. While the Quran declares that men and women are equal, traditional Muslim society has reduced this to its own level and instituted several regulations limiting women's rights.

The ULEMA recognises that women have not yet attained full equality, despite progress in other countries. This inequity could be remedied for Muslim women if the state adopts a Uniform Civil Code. When the Talaq law is repealed, the entire community will have access to justice and equal treatment.

Bibliography:
  1. Furqan Ahmad, Triple Talaq: An Analytical Study With Emphasis On Socio-Legal Aspect (Regency Publications) (1994).
  2. Shayara Bano v. Union of India and Ors., Writ Petition (C) No. 118 of 2016.
  3. Furqan Ahmad, Triple Talaq: An Analytical Study With Emphasis On Socio-Legal Aspect (Regency Publications) (1994).
  4. Ameer Ali, Mahommedan Law (1985).
  5. Abdullah Yusuf Ali, The Holy Quran: Text Translation And Commentary (Kitab Bhawan, New Delhi, 14th ed. 2016).
  6. Asghar Ali Engineer, Islam Women And Gender Justice 134-135 (Gyan Publishing House (1st ed. 2001).
  7. Anita Yadav, Article, Rights of Muslim Women: An Analysis of Indian Muslim Personal Law, 1 Research Gate 3 (2015).
  8. Himanshi Dhawan, 92% of Muslim women in India want oral Triple Talaq to go: Study, The National Network (June. 08, 2018, 02.18 PM IST), https://timesofindia.indiatimes.com/india/92-of-Muslim-women-in-India-want-oral-triple-Talaq-to-go-Study/articleshow/48565408.cms, last accessed on March 21, 2022.
  9. Asghar Ali Engineer, Abolosing Triple Talaq what next? 39 Economic and Political Weekly 3093, (2004).

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