TRIPLE TALAQ- Why Supreme Court may strike down unilateral talks

The judgment in the triple divorce matter may be delivered soon. There were some interesting questions from the bench.

About Triple Talaq

Triple Talaq refers to a process of divorce whereby the Husband utters the word “Talaq” thrice in one sitting; thus getting out of the marriage contract. This practice is controversial and has different interpretation among different sects of Islam. Some scholars argue that saying triple talaq in one sitting is null and void and there should be a period of 3 months {three menstrual cycles} between each Talaq. Nevertheless, this practice has been legally recognized in many countries and is particularly practiced in few countries such as Saudi Arabia. At the same time, it has been banned by law in many countries including Pakistan, Bangladesh, Tunisia, Indonesia, Algeria, Iran, Iraq etc. Around the world, this practice is valid in Sunnis only; most Shia nations have held it invalid. This practice is still valid in India.

Origin of the Litigation

In a major boost to women’s rights, the first notable judicial pronouncement came in 2002 in the Shamim Ara vs State of UP case. Though Talaq was not held invalid in this case, yet, the Justice RC Lahoti said that talaq must be pronounced on cogent, plausible and reasonable grounds. This verdict also said that prior to talaq, the spouses must appoint two arbitrators, who would make all efforts for reconciliation and resolution. Once all efforts having failed, the talaq shall come into effect.

The above verdict though did not invalidate the triple talaq yet, tried to give it a process.

In 2002 only, the Aurangabad bench of Bombay High Court invalidated the triple talaq by giving reference from Quran in Dagdu Pathan vs Rahimbi case. In this case, the court declared that a Muslim husband cannot repudiate the marriage at will and has to prove that all stages – conveying the reasons for divorce, appointment of arbitrators and conciliation proceedings between the parties were followed.

These judgements served the basis of several later rulings and thus invalidated the instant talaq.

The Allahabad high court called the Islamic practice of divorcing a woman by saying the word ‘talaq’ three successive times “unconstitutional” and called it a violation of the rights of Muslim women.

“Triple talaq is unconstitutional and arbitrary; it violates the rights of Muslim women. No Personal Law Board is above the Constitution,” said the Allahabad high court in its order. The order was passed by Justice Suneet Kumar while hearing a petition filed by a woman who claimed that her husband arbitrarily divorced her.

The fiercest opposition to this issue comes from All-India Muslim Personal Law Board. It has expressed its disquiet over a petition requesting the Supreme Court to determine the constitutional validity of triple talaq.

Incidentally, the Supreme Court is also hearing a petition challenging the validity of triple talaq, as several individuals and NGOs like the Bharatiya Muslim Mahila Andolan have sought a ban on its practice.

Questions from the bench

Questions were whether this (triple talaq) is fundamental to the religion (Islam). If it is fundamental to religion, possibly Supreme Court cannot be interfering. The other aspect is whether triple talaq is sacramental and can be enforced as a Fundamental Right.

 

Current Scenario

The Supreme Court reserved its judgement on triple talaq after six days of continuous hearings on a batch of petitions challenging the constitutional validity of triple talaq. On the final day, the counsels of several aggrieved women petitioners and women’s rights organisations – demanded triple talaq be declared illegal.

The Supreme Court is yet to be pronounced the final judgment.

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