Triple Talaq – Counter Perspective
Author: Diya Purohit
Co-Author: Nirbhay Singh Bhadouriya
Institute: Manipal University Jaipur
TRIPLE TALAQ – COUNTER PERSPECTIVE
Human rights in general are equated with more freedom and progress. It is important to note, however, that granting rights does not always lead to liberation. The main reason behind this exclusionary nature of human rights is the universal assumption on which it is based. The darker side of human rights is evident in the case of women when they are caught up in the intersection of social rights and the narrative of modernity. One such universal thing is the image of fully victimized Muslim women in need of protection through the liberal rights discourse. The current debate around Triple Talaq, Sharaya Bano and several batch petitions and the Supreme Court’s own sumo moto PL treats certain aspects of Islamic personal law as equal to gender discrimination and therefore violate the constitution. According to the liberal understanding of rights for the empowerment of women we must undermine religion and culture. However, constitutional rights remain a dead letter if we do not understand the politics of identity politics, especially in the case of women. The whole triple talaq issue has become a battleground for the debate of modality against culture. It is important to realize that women do not understand the experiences of these reductionist binaries because “she” is produced from the power relations that undermine them. The author is dealing with the question of Triple Talaq in light of a recent petition filed in the Supreme Court for the declaration of such talaq as invalid. The author argues that the Supreme Court has already established a legal precedent for the triple talaq, which must be followed instead of resorting to a policy of confrontation with Muslim women. Taking the cue from third wave feminism, the author must suggest that Muslim women should be recognized at the intersection of gender and religion.
Introduction
Talaq is an Arabic word for divorce. Divorce can be defined as a legal dissolution of a marriage by a court or other competent body. In the Muslim community, marriage is considered as a sacrament so Muslims prefer to follow Sharia Law (Islamic law) in case of any dispute or divorce.
There is a proliferation of media images of the burqa that has completely victimized Muslim women in need of protection through the liberal rights discourse. Such a representation of the universally afflicted subject creates an oppressive and consequently anti-human nature of the knowledge of the ‘other’. Religious radicalism is often characterized or characterized by ‘other’ countries, `other ‘worlds and, of course, the Islamic world and the Muslim community. On the creation of knowledge about the culture of knowledge production Domain-West. Such a discourse about the non-West is built through textual interpretation and education.
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Other forms of Muslim identity also create a Hindu identity. It should be noted that personal laws are crucial in shaping the identity of the Hindu and Muslim community. The Hindu codification of individual law has become the face of the modernity of society. However, it is appropriate to admit that codification does not empower Hindu women. These laws give women limited rights to divorce and have the ‘right to marital rights’. Over the next two decades, there have been many instances where husbands have approached the courts to stop their wives from gaining lucrative employment wherever they like by filing petitions. For the restoration of mating rights.
As far as polygamy is concerned, marriage is not the only means of celibacy, and many customary concepts have been eliminated, giving the Hindu man the opportunity to marry without punishment. However, since Hinduism is broadly defined to include castes, sects and religions that do not follow Brahmanical practices, such codification is irrelevant, and, in many circles, the ceremonies prescribed for the second marriage are very different from those for the first marriage of the virgin bride.
Section 13 of the Hindu Marriage Act, 1955 provides for divorce procedures, while Section 29 (2) affirms customary divorce. Therefore, even though the law is codified, a Hindu does not need to consult any state authority for the solemnization or annulment of marriage and can live comfortably outside the pale of formal law.
In 2005 the Supreme Court in Rameshchandra Daga v.Rameshwari Daga[1] whereas coping with the matter with maintenance of Hindu ladies dropped at forth the event in Muslim law that ameliorated the position of ladies. However, such developments are neglected within the recent debates around triple talaq making representational process of a put-upon Muslim subject United Nations agency is want of advocator reforms. The issues that are common between the ladies of each the communities are neglected. It appears like force and desertion are distinctive issues visaged by Muslim ladies. The violence Muslim ladies endured itself isn’t important; it’s her Muslim-ness and therefore the projection that she is the victim of archaic and oppressive personal laws that alone will provide her special standing and set her except all different victims of force.
The author must deal with the triple talaq question in light of a recent petition in the Supreme Court for declaration of such talaq as invalid. The author must argue that the Supreme Court has already established a legal precedent for the triple talaq, instead of resorting to a confrontational policy that has become dominant for Muslim women. The author should suggest that taking a cue from third wave feminism requires the identification of Muslim women at the intersection of gender and religion. The first part of the paper analyzes Shayara Bano v. Union of India[2] petition and the same argument. The second part of the paper should deal with alternative legal solutions available to Muslim women in the current legal setting. The third part of the paper should deal with the case study of Mohd. Ahmad Khan v. Shah Bano Begum[3]. The Court of Women’s Rights Against Muslim Identity has proven to be harmful to the women of the victims as it does not take intersectionality seriously.
Case of Shayara Bano
The current debate around Triple Talaq is centered on Sharaya Bano and many batch petitions and Supreme Court have sumo moto PL to examine whether certain aspects of Islamic personal laws are equal to gender discrimination and therefore violate the Constitution. The petition challenges the validity of the Triple Talaq on the touchstone of Article 14, Article 15, Article 21 and Article 25.
It states:
It is submitted that the imams, religious authorities and priests such as the Maulvis, who promote, support and empower the practices of talaq-e-biddat, niqalah, and polygamy, abuse their position, influence and power to influence Muslim women in such a gross manner. Methods that violate their fundamental rights enshrined in Articles 14, 15, 21 and 25 of the Constitution.
The petition goes on to describe the plight of Muslim women suffering from the unpleasant practice of Triple Talaq. It pulls more:
Muslim personal laws in India permit the practice of talaq-e-biddat or talaq-e-badai, in which a Muslim divorces his wife, pronouncing the same tuhr (the period between two stru), a tuhr after coitus, or an irrevocable instant divorce. According to various well-known scholars, the practice of talaq-e-biddat (unilateral triple-talaq) treats women like chattel, which is not integrated with the modern principles of human rights and gender equality, or the Islamic faith. It also destroys the lives of many divorced women and their children, especially those who belong to the poorest economies of society.
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Although the petition mentions many rulings dealing with the issue of the Triple Talaq conundrum; It does not depend on the proportion of any judgments, but rather challenges the constitutional validity of the Triple Talaq. The petition discusses that it is not saved by Article 25 of the Constitution of India as Triple Talaq is not an important doctrine of Muslim faith. The petition does not, however, challenge the inherent discretion given to a Muslim husband to pronounce talaq to his wife, which only challenges the practice of triple talaq. That is why the Shayara Bano petition does not bring out the woes of the triple talaqas that exist today.
There is no mention of the Protection of Women from Domestic Violence Act 2005 in the public interest litigation here, and it is clear that the woman was subjected to brutal cruelty until she abandoned the dowry demands. There are a number of provisions in the Act that make it easier to distribute justice by considering the facts and circumstances of the case.
The above has provoked a reaction from the Muslim personal board, which has regarded their action as a question of Muslim identity. The Supreme Court does not have jurisdiction over Muslim personal law, which is inextricably linked to Islam, a law based on quaranic prohibitions and not by parliament, which only serves to make the trial controversial and contribute to the conflict. However, such an argument is not good, as the Supreme Court has held in numerous cases involving interference in personal law. That is Shamim Ara v. State of UP[4] or Mohd Ahmed Khan v. Shah Bano Begum or Daniel Latifi v. Union of India[5]. The Supreme Court has been instrumental in reforming the personal justice situation.
It is clear from the above that the petition has created a speech that can only guarantee the rights of Muslim women by clashing with Muslim identity. It should be noted that both the ignorance of the legal development of lawyers in Muslim personal law and the unscientific interference of the Muslim personal court proceeded to build this divide against us and why. Somewhere in this meta-truth of good and evil, oppression and civilization have proven harmful to women, eradicating the realities of women’s experience. It must be understood that the issue of Muslim women originated from the society that subjugated her. Courts must understand that constitutional rights remain a dead letter if we do not understand the politics of identity politics in the case of women in particular. The whole triple talaq issue is culture v. Modernity has become a battleground for debate. It is important to understand that women do not understand the experiences of these reductionist binaries, because “she” is produced from the power relations that undermine them.
Legal Alternatives
There have been many cases where the Supreme Court and several High Courts have declared that instant triple talaq is invalid. Shamim Ara v. State of UP. The Supreme Court has already invalidated the instant triple talaq. Quoting Rukia Khatun v. Abdul Khaliq Laskar[6], the court observed:
The proper law of talaq as prescribed by the Holy Quran is: (i) ‘talaq’ must be for a reasonable cause; And (ii) it must precede the attempt of reconciliation between the husband and wife by the two intermediaries, one being chosen by the wife from her family and the other by the husband. If their efforts fail, ‘talaq’ may be affected.
“To pronounce effective talaq,” the court said. The word ‘pronunciation’ means to declare, to formally pronounce, to rhetorically pronounce, to declare, to utter.”
The court further added:
None of the ancient holy books or scriptures mention the appearance of divorce. No such document is brought to our attention, which is read in any document, including a declaration that the husband has divorced his wife, and the divorce may be effective on the date the wife learns of such a statement. The affidavit or plea dealt with her.
Therefore, it is clear from the above judgment that a plain affidavit or a talaqnama cannot affect talaq without reconciliation efforts.
The Dagdu Pathan v. Rahimbi Pathan[7], Bombay High Court held that a Muslim husband cannot refuse marriage at will. Rahambi stated in Pathan. “Divorcing the wife without cause, harming her, or retaliating against her husband’s unlawful demands and violating the Shariat prescribed procedure is a haram,” the court said.
Mansoor Ahmad v. State (NCLT of Delhi)[8] the High Court of Delhi while interpreting Shamim Ara judgment held that :
Talaq, which can be revoked, does not occur during the pronunciation of the marriage, but is automatically postponed until the end of the Iddat period. This period is provided separately so that the man can review his decision and seek reconciliation. Hasan Talaq will be withdrawn. There are also the first two talaq statements in the ccof ahsan talaq case. Now, I thought that the talaq-e-biddat could also serve as a single withdrawal talaq.
In Shakil Ahmed Shaikh v. Vahida Shakil Shaikh, the High Court of Bombay reaffirmed that the husband’s petition that his wife had given talaq on an earlier date was not equivalent to the dissolution of marriage, provided that talaq was not valid and was given by following the preceding conditions, which are mediation / reconciliation and valid reasons.
It is therefore clear from the above discussion that a sine qua non to articulate effective talaq reconciliation. It is therefore safe to conclude that the above cases eliminate the distinction between talaq-e-biddat and talaq-e-sunnat. It is important to note that there is no challenge to the Talaq-e-Sunnat in the Shayara Bano petition, so that the decision of the cases does not serve as a legal precedent. In fact the petition has nowhere discussed the issues that affect the entire discretionary debate.
Such a right is good even if the deserted wife is entitled to maintenance and the husband has pronounced talaq or sent a talaq. In the case of Daniel Latifi, the court held that the maintenance of the wife did not cease after the Iddat period, but continued for the rest of her life.
Thus, in 2002, the Supreme Court had already made available a lot of legal aid that the petitioner could resort to instead of such invalid petitions, which all High Courts have followed. However, the denial of these alternative remedies creates a replica of a fully aggrieved Muslim woman, who has been subverted by an ancient personal law and only the Supreme Court can protect. All such articles completely disappear from the long-standing feminist struggle that has successfully suppressed the patriarchal practice prevalent in society, by consulting and negotiating the same courts but without initiating a communal zeal. Such an invitation does not alter the lived experience of Muslim women, but rather because of the interplay between her Muslim identity and gender oppression.
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The Shah Bano case is the best example of confrontational politics that leads to the true victim of the woman in question. The case relating to the maintenance of a Muslim wife after the pronunciation of talaq. The Court upheld the above right under section 125 of the CrPC:
It is also sad that Article 44 of our Constitution remains a dead letter. There is no evidence of any formal activity to create a common civil code for the country. A belief has been born that the Muslim community should take precedence over the reform of their individual law. The Common Civil Code helps national integration by eliminating the different obedience to laws that have conflicting ideologies. No community is likely to bell the cat by making unnecessary concessions on this issue. The state is charged with preserving a uniform civil code for its citizens and, undoubtedly, it has the ability of the legislature.
The appeal to call on the UCC and the negative comments made by the court against the Prophet and Islam have caused a backlash from the Muslim community. They viewed it as an attack on their cultural beliefs and faith, and as a means of imposing the dominant idea of uniformity and universality on them. Therefore, a decree based on Islamic jurisprudence is demanded. The Muslim woman in these times is in these sharp binaries and calling for her to choose between her religious beliefs and community affiliations at one end and her gender claims at the other, is really a difficult choice for her.
Such speeches led to Shah Bano’s dismissal of the court’s handling of the case under section 125. Ironically, the whiplash fury seemed to have been divorced from the core of the controversy, with Rs.179.20 a month not enough to save the middle-aged, middle-class, ex-wife of a very Kanpur-based lawyer from instability and barbarity. However, Shah Bano declared that he was a devout Muslim rather than a claim maintenance.
Such a statement calls for introspection from both sides of the conflict. The woman who was presented as the face of the oppression of the Muslim community refused her relief. It is important to appreciate her status as a Muslim woman, not just a woman. Heritage is multifaceted and she wants to achieve empowerment within the boundaries of her faith. Such an example brings us back to the question Gayatri Spivak asked.
The Muslim Women (Protection of Rights on Marriage) Bill, 2019
The Muslim Women (Protection of Rights on Marriage) Bill, 2019, was introduced in the Lok Sabha on June 21, 2019 by Justice and Justice Minister Ravi Shankar Prasad. This replaces the ordinance announced on February 21, 2019.
The bill blanks all statements of talaq, including in written or electronic form (i.e. not enforced in law) and is illegal. This leads to the immediate and irrevocable divorce of the talaq which is pronounced talaq-a-biddat or other forms of talaq pronounced by a Muslim. Talaq-e-Biddat refers to the practice under Muslim personal laws, where a Muslim man pronounces the word talaq three times while sitting with his wife, resulting in an immediate and irrevocable divorce.
Offense and Penalties: The bill declares talaq to be a recognizable offense and carries a fine of up to three years in prison. (A detective offense, for which a police officer can arrest an accused without a warrant.) The offense is identified only if the crime information is provided: (i) a married woman (to whom talaq has been declared), or (ii) any person related to her by blood or marriage.
The bill stated that the magistrate can grant bail to the accused. Bail can only be granted after the woman is heard (against whom talaq is pronounced), and if the magistrate is satisfied that there are reasonable grounds for granting bail.
At the request of the woman the magistrate may increase the offense (against whom talaq is declared). Compounding refers to the process by which both parties agree to stop legal proceedings and resolve disputes. The Magistrate shall determine the terms and conditions of the offense compound.
Allowance: A Muslim woman who declares talaq is entitled to receive a subsistence allowance from her husband for herself and her dependent children. The amount of the allowance shall be determined by the Magistrate.
Custody: Such a talaq has been declared against a Muslim woman who is entitled to custody of her minor children. The custody process will be decided by the magistrate. The said Act have been challenged before supreme court and notice has also been issued by the SC.
HIGHLIGHTS TO CHALLENGE:
(A) The bench decided to issue notice and hear the matter immediately as the matter was called for hearing.
(B) The bench asked the petitioners why an objection was being made on religious grounds.
(C) The bench pointed out while the Act prescribes a maximum sentence of three years, there is no minimum sentence.
CONCLUSION
The question remains whether declaring the Triple Talaq method unconstitutional will improve the situation of Muslim women beyond what is valid. Such an act would bring rights against the social and cultural beliefs of the Muslim woman.
It should be understood that identity relief is a very complex phenomenon. The problem with identity politics is that it is not overly different, but shaped very differently. Drawing on post-modern scholarship, one must understand that Muslim women’s subjectivity is built on the same socio-cultural context. For example, virtuous Islamic women can compete for the paternalistic regimes of the Quaranic Interpretation Home, while at the same time expressing global solidarity. The identity of a Muslim woman must be understood as intrinsically linked to her Muslim-ness. Separate from it. Therefore, legal reforms cannot take into account the victim narrative through the patriarchal Muslim community, but must also provide space for asserting similar multi-faceted identities.
Here we face some unanticipated problems of a conflict of rights that contradicts the self-selective precipitation of identity in a religious tradition with forms of universalism of the traditionalization of gender equality and justice seeking difference politics. Here we come to the conceptualization of inter-sectionality, if we can better identify and ground the difference between ourselves and discuss ways of finding expression in these differences in the construction of group politics. So basically Muslim women Article 14, 15 or 21 cannot be seen to give all women a universal definition of equality or life. The concept of equality must also be informed by the difference in women’s experiences. It must be understood that human rights are not universal and undemocratic, they can become, for some time, unconsciously, a political tool of oppression. Therefore, the idea of equality cannot be said to be a feminist practice, as opposed to one another, and her two identities. This is a big win for feminist politics, and now the Muslim community has recognized the judgment of Shamim Ara and therefore the entire community is accepting that the arbitrary talaq is invalid.
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However, even when the gender concerns of marginalized women hit the headlines, they are mainly meant to reinforce stereotypes against society. ‘Women’s rights’ is a multifaceted issue, embedded in a wide range of political processes and as a result complexity is a necessary response. Such a response is likely to have a religious impact on the lives of Muslim women. In the current situation, when the case is placed before the court and even if it is heard, the court will again initiate a ‘gender versus community’ debate after the decision by the Muslim Personal Justice Board recognizes Shamim Ara, thereby creating another Shah Bano.
[1] (2005)2SCC33.
[2] WRIT PETITION (CIVIL) of 2016.
[3] AIR 1985 SC 945.
[4] 2002 (7) SCC 518.
[5] (2001) 7 SCC 740.
[6] (1981) 1 GLR 375.
[7] II (2002), DMC 315 Bom FB.
[8] 2008 (103) DRJ 137 (Del).