This issue has been in the headlines for the last two years. To understand the current status of the legislation to make the practice illegal, let us go through the history of the legislation.
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 last Parliament session before the general election, the government re-promulgated the ordinance on 10th January, 2019. On 12th January, 2019, the President of India approved the ordinance of 2019. The ordinance had originally been promulgated in 2018 because the practice of instant Triple Talaq was continuing unabated despite the Supreme Court terming it as unconstitutional, thus barring the practice.
The Bill for this purpose was pending in the Rajya Sabha for a long time, but could not be passed due to the continuing disturbance of the working of the Upper House by some political parties.
However, the Bill was reintroduced and passed by the 17th Lok Sabha. The Rajya Sabha also approved the bill subsequently and Triple Talaq has now become illegal in India. After approval by Parliament, the Muslim Women (Protection of Rights on Marriage) Act, 2019 became law on 31 July 2019. It is seen by many as a right step in giving social justice to Muslim women.
The issue had attracted media attention after a Muslim organisation, Bharatiya Muslim Mahila Andolan (BMMA), launched a campaign to ban Triple Talaq and ‘nikah halala’, a practice in which divorced women, in case they want to go back to their first husbands, have to consummate a second marriage. Addressing the plea of many Muslim women and activists, a bench of five Supreme Court Judges took a landmark decision of outlawing this practice. Triple Talaq is the process of divorce under Sharia Law (Islamic Law) in which a husband can divorce his wife by pronouncing ‘Talaq’ three times. This is also called ‘Oral Talaq’.
The message in the Quran is very explicit about divorce. It leans more toward safeguarding marriage rather than dissolving it abruptly. The Quran sets certain norms to execute divorce, just as there are norms to sanctify marriage: “Those who intend to divorce their wives shall wait for four months”. The Islamic scripture demands time and patience in executing a divorce in the hope of making the union continue, knowing that the couple is bound to have differences. Some Indian Muslims follow the system of Triple Talaq in one sitting based on the practice from the time of Umar, the second Caliph. Umar thought it appropriate to enforce Triple Talaq in one sitting as men had made Talaq a joke by taking back their wives even after uttering the word ‘talaq’ several times. As a result of men’s recklessness, wives suffered, often getting struck in a vicious circle, unable to gain their freedom.
This mode of divorce is not universal among Muslims across the world, as many other Islamic schools of thought prefer the divorce process to be deferred, in many cases over a period of three months. In the case of Triple Talaq, there was both resistance and support from various sections of society for changing it. The resistance was mainly from the All India Muslim Personal Law Board and conservative groups. These groups had the opinion that the custom of Triple Talaq is an integral part of the Muslim Sharia law and any infringement on Triple Talaq is interference with the Islamic religion. They consider that any decision on Triple Talaq is against the constitutional protection conferred on them under the fundamental right of protection of religion. The supporters of outlawing the practice of Triple Talaq were from Muslim women groups and other social organisations. According to them, Triple talaq was a unilateral right of men: this was against gender equality and was discriminatory against a particular gender, Outlawing the practice of Triple Talaq was important to maintain the dignity of women and give them their due rights. According to this group, Triple Talaq was against the fundamental tight of equality for all citizens.
The Supreme Court considered Triple Talaq unconstitutional as it is against gender jurisprudence evolved by the Supreme Court, against principal of equality as a fundamental right specified in the Constitution and it is not fundamental to the religion of Islam in India. The controversy around talaq stems from how it is practiced in modern day societies. According to Islamic belief, it should be a deliberate and thoughtful practice, carried out over the course of several weeks.
The Triple Talaq petition before the Supreme Court is not the first. In 1985, a woman named Shah Bano fought a case in the Supreme Court against her husband after he left her without providing her money to live on her own. The top court ruled in her favour.
India is a country of diversity of culture, religion and customs. In India, each religious community has its own set of laws based on their religious texts which govern family matters. After India’s Independence, various politicians have proposed an overarching law known as the Uniform Civil Code, which would make separate religious laws obsolete, creating one system for every citizen. The Uniform Civil Code is important for national integration and gender equality. However, the law has to be such that it respects the diversity and secularism. A fine balancing has to be done between the right to practice any religion and social justice. The Uniform Civil Code should emerge as a thread to bind different communities rather than as a threat to disintegrate society.