LEGAL ANALYSIS

LAW OF SHARIAT

India is a Secular state having no religion of its own and every religion in India be it Hindu, Muslim, Sikh, Christian is being given equal importance with fair and partial governance in the form of Personal Laws of every religion. Similarly, Shariat is a law under which every Indian Muslim is governed calling it a Muslim Personal Law which was enacted in 1937 under the name The Muslim Personal law (Shariat) Application Act,1937. The Shariat is applicable to each and every Muslim of India containing provisions of dissolution of marriage, law of inheritance, special property of females, intestate inheritance, maintenance including Talaq in different forms such as Ila, Zihar, Lian, Khula and Mubaraat and other provisions to protect the Rights of every Muslim citizen in India.

Law of Ila is remedy for repudiation of marriage by takin an oath of abstinence from sexual intercourse which means the husband has to ensure that he has not been involved in the sexual act with his wife for four months in order to repudiate his troubled marriage. Law of Zihar in Islamic jurisprudence is a form of divorce  though not legal if the husband says “ you are like my mother (zihar)” to his wife because it is not lawful to have sexual act with a her unless she fasts for two consecutive months and feed 60 people subsequently, Law of Lian is a ground of divorce under which the husband puts allegation on his wife for adultery and entitles the wife to file a suit for dissolution of marriage and get a divorce if she proves the charge to be false, Law of Khula provides wife for the procedure of divorce by returning the Mahr (dower) to the husband. Talaq in Muslim personal law is defined under the sub-topics namely Talaq-ul-Sunnat and Talaq-ul-biddat.

TALAQ-UL-SUNNAT

it is the Talaq, which is affected in accordance with the traditions of Prophet. It is regarded to be the approved form of Talaq. Talaq-ul-Sunnat is also called as Talaq-ul-Sunna, which means divorce in accordance with the requirement of the traditions. It is a traditional mode of divorce, and approved by Prophet Mohammad, and is valid according to all Schools and Sub-Schools of Muslim law. As a matter of fact, the prophet always considered Talaq as an evil. If at all this evil was to take place, the best formula was one in which there was possibility of revoking the effects of this evil. With this idea in mind, the Prophet recommended only revocable Talaq; because in this form, the evil consequences of Talaq do not become final at once. There is possibility of compromise and reconciliation between husband and wife.

It has been further sub-divided into:

  1. Talaq Ahsan (most approved form or most proper form):

This Arabic word ‘Ahsan’ means ‘best’. It is also called ‘very proper’ form of Talaq. This signifies that the Talaq pronounced in the Ahsan form is very best kind of Talaq. Ahsan Talaq is the most approved and best form of Talaq. Ahsan means ‘very good’. The best feature this kind of Talaq is that, it is revocable. So, hasty divorce can be prevented.

According to Hedaya, this method of divorce is the most approved because the companions of the Prophet approved of it, and secondly, because it remains within the power of the husband to revoke the divorce during Iddat, which is three months, or till delivery.

This is the most proper form of repudiation of marriage because of two reasons:

  • First, there is possibility of revoking the pronouncement before expiry of the Iddat period.
  • Secondly, the evil words of Talaq are to be uttered only once. Being an evil, it is preferred that these words are not repeated.

 This mode of Talaq consists of a single pronouncement of divorce made in a period of Tuhr (purity, i.e., the period between two menstruations) or at any time if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period of Iddat.

 In case of a pregnant woman, there must be no sexual intercourse till the birth of the child. The requirement that pronouncement of should be made during a period of Tuhr applies only to oral divorce. It does not apply to Talaq in writing. Similarly, this requirement is not applicable where the parties have been away from each other for a long time, or when the marriage has not been consummated.

This Talaq may be revoked either by express words or impliedly, by cohabitation within the Iddat period. On such revocation, it is not necessary for the wife to undergo intermediary marriage. The husband can simply say ‘I have retained you’.

If cohabitation takes place even once during this period, the Talaq is revoked and it is presumed that the husband has reconciled with the wife. When the period of Iddat expires and the husband does not revoke the Talaq either expressly or impliedly, through consummation, the Talaq becomes irrevocable and final.

The characteristic feature of the Ahsan form of Talaq is a single pronouncement followed by no revocation during the period of Iddat. Therefore, where a husband makes any declaration in anger, but realizing his mistake afterwards, wants to cancel it, there is sufficient time for him to do so. Single pronouncement of Talaq and sufficient opportunity to the spouses for reconciliation are the two reasons for calling this form as the ‘most proper’ form of Talaq.

SHIA LAW

The Shias requires the presence of two witnesses at the time of pronouncement of Talaq. If a man had sexual intercourse during her Pak (pure) period and wishes to divorce his wife, he should wait till she enters into menstruation and then again becomes Pak, only then she could be divorced. In case a husband had sexual intercourse during Pak period and separated from wife, like, if he proceeded on journey and wishes to divorce, then he should wait for at least one month.

  1. Talaq Hasan: (Approved form)

 In Arabic, Hasan means “good”. While Ahsan means very good, Hasan means good. This kind of Talaq is also regarded to be proper and approved form. In this form also, there is a provision for revocation. But it is not the best mode because evil words of Talaq are to be pronounced three times in the successive tuhrs. This is also a kind of Talaq-e-Sunnat but considered less approved than Talaq-e-Ahsan.

In this form, the husband is required to pronounce the formula of Talaq (i.e., the utterance of the words, “I divorce thee”) three times during three successive tuhrs. If the wife has crossed the age of menstruation, then the pronouncement of Talaq may be made after an interval of 30 days between the successive pronouncements. It is therefore, “a divorce upon a divorce”, where the first and second pronouncements are revoked and followed by a third, only then Talaq becomes irrevocable.

It is necessary that no intercourse should have taken place during the period of purity in which, the pronouncement has been made. For instance, when the wife is in Tuhr, without having intercourse with her, the husband pronounces Talaq. This is the first Talaq. Then he revokes it by words or by intercourse. Again, when she is in Tuhr, and before intercourse, the husband pronounces Talaq.

This is the second pronouncement. Husband again revokes it. Again, when the wife enters her third period of purity and before any intercourse takes place, husband makes a pronouncement of divorce. This is the third pronouncement. The movement the husband utters the third pronouncement, the marriage stands dissolved irrevocably.[1]

TALAQ-UL-BIDDAT

It is the disapproved form of Talaq in Islam and was never practiced during the time of Prophet Muhammad. The Prophet never considered this form of Talaq during his life because in this form the Talaq is finalized as soon as the husband pronounces Talaq three times. In Talaq-ul-biddat there is no scope for reconciliation and the woman has to bear with all the consequences of divorce. In Islam this form of divorce is prohibited i.e., Haram. Talaq-ul-biddat is practiced in the Sunni sect of Muslims however, Shia Muslims do not recognize this form. A Sunni husband, who wants to divorce his wife irrevocably, may do so in any of the following manners:

(a) The husband may make three pronouncements in a period of purity (Tuhr) saying: “I divorce thee, I divorce thee, and I divorce thee”. He may declare his triple Talaq even in one sentence saying: “I divorce thee thrice”, or “I pronounce my first, second and third Talaq.”

(b) The husband may make only one declaration in a period of purity expressing his intention to divorce the wife irrevocably saying: “I divorce thee irrevocably” or “I divorce thee in Bain”.[2]

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019

The Muslim Women (Protection of Rights on Marriage) bill was introduced in Lok Sabha on 21 June, 2019 by the Minister of Law and Justice Mr. Ravi Shankar Prasad replacing the Ordinance promulgated on 21st February 2019. This Act of 2019 makes all the declaration of Talaq including written or electronic form as void and illegal. It defines Talaq-ul-biddat or any other similar forms of Talaq pronounced by the Muslim resulting in instant and irrevocable divorce.

As per this new amendment a new penalty has been prescribed for the Muslim man committing the offense of instant triple Talaq making the offense Cognizable attracting up to 3 years of jail term with fine. This offense of instant triple Talaq will be cognizable only if the information is given to police by

  1. the married woman against whom the divorce has been declared
  2. a person relating to her by blood or marriage

As per the amendment the Bill provides that the Magistrate may grant bail to the accused.  The bail may be granted only after hearing the woman (against whom Talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
 The offence may be compounded by the Magistrate upon the request of the woman (against whom Talaq has been declared).  Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute.  The terms and conditions of the compounding of the offence will be determined by the Magistrate.  
Allowance:  A Muslim woman against whom Talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children.  The amount of the allowance will be determined by the Magistrate.

Custody:  A Muslim woman against whom such Talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.[3]

CONSTITUTIONAL VALIDITY OF THE LAW

The Constitution makers at the time of the making of the supreme law of land i.e., the Constitution of India ensured that India would be a free nation to be lived in, without any discrimination, oppression and full of prosperity and brotherhood and subsequently provided us with the Fundamental Rights Under Part III of the Constitution which could be exercised and enjoyed by the Citizens as well as non-Citizens, most important of which being;

  1. Article 14 which states Equality before law

 The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

  • Article 15 states Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

  1. access to shops, public restaurants, hotels and palaces of public entertainment; or
  2. the use of wells, tanks, bathing Ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
  3. Nothing in this article shall prevent the State from making any special provision for women and children
  4.  Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes
  • Article 21 states Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
  • Article 26 states Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
  • to establish and maintain institutions for religious and charitable purposes;
  • to manage its own affairs in matters of religion;
  • to own and acquire movable and immovable property; and
  • to administer such property in accordance with law

Article 29 states Protection of interests of minorities

  1. Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same
  2. No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them

The Muslim Women (Protection of Rights on Marriage) Act, 2019

The Act of 2019 which happens to be an act for the betterment and oppression free life of Muslim women is in itself discriminatory because it violates Article 14, 15, 21, 26 and 29 of the Indian Constitution. It violates Article 14 in the way that it is predicated along religious lines which discriminates Amongst Hindus and Muslims because of the fact that if a Hindu man divorces his wife, he will have to serve a jail term of 1 year with fine whereas if a Muslim man divorces his wife, then he will have to serve a jail term of 3 years. Further the Act violates Article 15 in the way that as proposed in the Act if a Muslim man divorces his wife in the form of Triple the Marriage of the couple is not dissolved as soon after the pronouncement Talaq thrice and while the man is in the prison for 3 years, he will have to pay compensation to his wife leading to deterioration of women’s life as well as children’s life because of the expectation of compensation from the man who is in jail which next to impossible. The Triple Talaq violates Article 21 which deprives the Muslim woman her personal liberty by staying in that marriage for the next three years till the time the man is out after the completion of his term in jail, by keeping the woman in that marriage deprives her the dignity of life because it is next to impossible to expect compensation from the man for herself and for her children which is in itself discriminatory. Moreover, the Act of 2019 is a blatant violation of Article 26 of the Constitution in the way that, if a Muslim man practices instant triple Talaq then he will be sent to jail for 3 years with Marriage of the Couple intact for the next three years however, as per the Islamic decalogues the marriage as soon after the pronouncement of Talaq thrice by the man the marriage gets dissolved without any scope for reconciliation. Therefore, this act clearly modified the Islamic rules of triple Talaq which cannot be changed or altered. Lastly the validity of the Act of 2019 can be questioned by stressing on Article 29 which takes away the right to conserve the culture and script of Muslims by modifying the Islamic laws for Triple Talaq which is not subject to any change or modification. The Act further violates the principle enshrined in the preamble of the Constitution which says that there should be liberty of thoughts and expression and freedom of belief, faith and worship. Therefore, The Muslim Women (Protection of Rights on Marriage) Act, 2019 proved to be a blatant violation of the Part III of the Constitution of India.

CONCLUSION

In India oppression of women is of greatest concern and for that matter many laws have been inserted and many existing laws are made stronger in order to get rid of the oppression and discrimination of women. Section 498A of IPC, Domestic Violence Act and Dowry Prohibition Act such laws are dealing with the advancement and prosperity of women in the country. However, the bill of 2019 which has now become an act that claims to be for the upliftment of women has features that are purely altering the decalogues engraved in the religious manuscripts which are not all meant to be altered/ modified by anyone. India has existing laws which have been aforementioned and are fully applicable to Hindus as well as Muslims. Moreover, existing laws have equal penalties for the both in case any crime has been inflicted on women but the specific Triple Talaq is law that segregates and treats the equals unequally by sending the man to jail for a term of 3 years if he practices Triple Talaq however, if a Hindu divorces his wife, then he will be sent to jail for a year. This is how it creates a divide between the two. Moreover, The Hon’ble Supreme Court of India in the judgement of Triple Talaq has stated the marriage to be non-Est which means the marriage of the couple will remain intact and not dissolved. For Muslim women upliftment we have IPC section 498A, Domestic Violence Act, Dowry Prohibition Act but there is no need to have a specific Triple Talaq Law to uplift the Muslim Women because the Law will in turn prove to be disastrous for the Muslim women itself because the expectation from the man who is serving his term in the Prison to pay compensation for her and for her children is so inappropriate and in the end the women will be the ones affected the most by this new implemented law. Therefore, the is not needed as we have existing laws which can be strengthen to make Indian women more prosperous and happier.

 


REFERENCE

[1] matrimonialadvocates.com/talaq-ul-sunnat

[2] http://www.shareyouressays.com/knowledge/

[3] http://www.prsindia.org/billtrack/muslim-women

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