Muslim personal law, India: Divorce
This is a collection of articles archived for the excellence of their content. |
Khula
As in 2024
Sudipta Sengupta, February 25, 2024: The Times of India
Parting ways with her husband, Pakistan cricketer Shoaib Malik, tennis star Sania Mirza opted for ‘khula’, sparking in the process a fresh conversation around this mode of dissolving marriages in the Islamic canon. What has added to the chatter – at least in Hyderabad – is a reported spike in women opting for khula.
Khula denotes divorce proceedings initiated by a Muslim woman and is based on her agreeing to forgo her mehr (money paid by the groom to the bride at the time of marriage) and subsequent maintenance in the form of financial aid.
Reliable data is missing, but the practice is believed to have become more prevalent among both the upwardly mobile as well as the less-privileged sections of the city’s Muslim community. Qazis and social activists TOI spoke to said that at least 20 to 25 cases of khula are now brought to their notice every month. This was limited to single digits until recently.
An Indian Problem?
While it’s speculated that the spike in khula has to do with the ban on triple talaq in 2019 (there are instances of Muslim men simply walking out of their marriage as they wanted to avoid the legal route of obtaining divorce, leaving the women to opt for khula), what continues to be a matter of debate is how taking recourse to khula is far from being the unilateral decision of the woman even though it’s a right conferred upon her by the Quran. According to many members of the Muslim community, a woman in India needs the approval of her husband to obtain khula. That isn’t the case in any other country, they claim.
The peculiar scenario governing the khula in India means that going for it can involve a longdrawn battle spanning years, or even decades.
Saheeda Ali*, a lawyer by profession, said she had to wait six years before getting her khula in 2023. Her husband was involved in an extra-marital affair. “On learning of it, I decided to separate and move on. But each time I approached the maulvi he sent me back, asking me to get my husband’s consent. Since the latter wasn’t ready to give his consent, I had to wait it out and even make attempts at reconciliation. Finally, when my husband decided to start living with the other woman last year, he gave his consent,” said the young mother of two. “This is the reality that almost all women seeking khula have to face,” she added.
Husband’s Nod Needed
Getting khula was relatively easier for Hameeda Bano* since her bruises from years of domestic violence were tough to mask. But she recalls how the qazi still made that call to her husband to confirm that she had his consent. “Only after he (my husband) agreed did the khula come through. I also had to repeatedly stress that I needed nothing from him,” said the 45-year-old medical practitioner.
But the struggle is still on for Rehana*, a resident of Hyderabad’s Old City. After 25 years of marriage, the primary school teacher decided that she would no longer put up with her husband’s infidelity. “We have been fighting her case for a while now,” said Jameela Nishat, who runs the Shaheen Women’s Resource and Welfare Association and deals with three to five cases of khula every day. “There are many like her who are forced to face these hurdles. In some rare cases, we help the women seek a faskh-e-nikah (see box) through the courts since the husbands are set against agreeing to a khula,” added Nishat.
Activist Sarah Mathews points out that being made to wait for the husband’s consent amounts to an “infringement of the rights of the woman”. “Also, this often forces the hapless woman to stagnate in an unhappy marriage. And even while she is kept dangling, the man has the option to get married again while the woman’s right is hijacked in the name of interpretation,” she said.
Qazis Beg To Differ
The qazis though see things differently. “We contact the husband so that we can counsel the couple together and see if they can reach a compromise instead of ending their marriage. When there is no resolution in sight, we proceed with the khula,” said qazi Mir Mohd Kader Ali.
Ali, however, did not deny that a go-ahead from the husband was a must. Neither did mufti Anwar Ahmed from Jamia Nizamia. But he did not think that khula was on the rise although he said “separations have increased due to a change in lifestyles and increased interference by families”. He said only 7% to 8% of all marriages within the community ended in termination. “Also, only in five out of 100 cases do women face a challenge while seeking khula. It is usually a smooth process. In fact, many divorces are also shown as khula due to the insistence of the woman and her family as that can help her remarry subsequently,” the mufti said. (*Names changed on request)
WHAT IS FASKH-E-NIKAH?
This is another mode of dissolution of marriage in Islamic law. It’s resorted to when the husband is ‘unavailable’ to give either talaq or khula to his wife. In case of a faskh, the woman can approach a court of law seeking termination of the nikah, and it is granted to her without much hassle. Senior members of the community say that many do not opt for faskh for two reasons – because families often do not wish to take the legal route, and, secondly, due to lack of awareness among people about this provision.
Talaq e-Hasan
SC: 2022
AmitAnand Choudhary, August 17, 2022: The Times of India
New Delhi: The Supreme Court said Talaqe-Hasan — which is pronounced once a month over three months — is not the same as instant triple-talaq which has been declared illegal by the court and observed that “prima facie” it is also not so improper as women also have an option of ‘khula’ divorce.
Abench of Justices Sanjay Kishan Kaul and M M Sundresh was hearing a petition filed by a Gaziabad-based Muslim woman challenging the validity of Talaq-e-Hasan.
In Talaq-e-Hasan, ‘talaq’ is pronounced once a month, over a period of three months and if cohabitation does not resume during this period, the divorce gets formalised after the third utterance in the third month.
Senior advocate Pinky Anand, appearing for the petitioner who was given divorce by her husband through Talaq-e-Hasan, contended that the Supreme Court has declared instant triple-talaq (Talaq-e-biddat) as unconstitutional but validity of Talaq-e-Hasan was not examined and which should be done by the court now.
The petitioner alleged that the practice of Talaq-e-Hasan and other forms of “unilateral extra-judicial talaq” is neither harmonious with the modern principles of human rights and gender equality, nor an integral part of Islamic faith. “Many Islamic nations have restricted such practice, while it continues to vex the Indian society in general. ,” the petition said.
The bench, however, said that women have the option of ‘khula’, a process of divorce which can be initiated by the wife. It said that divorce could be granted through mutual consent if the husband and the wife did not want to live together. The court, thereaf- ter, asked the petitioner whether she was willing to go for consent divorce.
“We have also put to learned counsel whether in view of the allegation of respondent (husband) of irretrievable breakdown of marriage, would the petitioner be willing for a settlement by process of divorce by mutual consent on amounts being paid over and above the ‘meher’ fixed. In fact, we have brought to their notice that dissolution of marriage is also possible without the intervention of the court through ‘mubarat’,” the bench said in its order.
The petitioner approached the court through her lawyer Ashwini Upadhyaya and contended ‘Talaq-e-Hasan and other forms of unilateral extra-judicial talaq is an evil plague similar to sati”.
Triple Talaq
See graphics:
How muslims divorce, mubarat, khula and talaq
3 types of talaq, talaq ahsan, talaq hasan and talaq-i-biddat
Some facts about triple talaq, 1-3
Some facts about triple talaq, 4-8
Talaq in some other countries
Various forms of Muslim divorce
August 28, 2022: The Times of India
VARIOUS FORMS OF DIVORCE FOR MUSLIMS
➤ Talaq-e-hasan : Is initiated by the husband, where talaq is pronounced thrice over a period of three menstrual cycles (three months). The couple cannot co-habit after the first talaq is pronounced. If they do, the process is nullified.
➤ Talaq-e-biddat: Also called triple talaq. It is initiated by the husband and is a means of instant divorce. This was made a criminal offence in 2019 with a provision for three years’ imprisonment.
➤ Talaq-e-ahsaan: Also Initiated by the husband who pronounces talaq once. After that, the couple is bound to go through counselling and mediation for a period of 90 days before the divorce is accepted. It is considered a fair method if process is followed.
➤ Khula: Initiated by the woman who wants to divorce.
➤ Mubaraat: Divorce by mutual consent.
Muslim Laws on Divorce
Not mentioned in the Quran; an innovation. Most ulema agree that Allah considers talaq the most reprehensible of all that is allowed to man. However, they remain divided on the triple talaq. The Hanafi — one of Sunni Islam’s four schools of jurisprudence — allows the triple talaq. But this practice can lead to absurd scenarios, such as the Oriya man who informed his wife he had said ‘talaq’ three times in his dream the night before. The local maulvis promptly pronounced they were no longer man and wife. The man had to take his fight for the marriage to be restored all the way to the Supreme Court.
Other forms of divorce recognised under the Shariat Act, 1937 and applicable to all Muslims in India are: mubarra (divorce by mutual consent) and talaq-etafweez (delegated divorce).
The subsequent Dissolution of Muslim Marriage Act, 1939 provided some equality as it granted Muslim women the right of khula — or the right to divorce their husbands. Its prime mover was a scholar, Maulana Ashraf Ali Thanvi, who lamented that many Muslim women were converting to Hinduism to get rid of their “cruel” husbands who would neither treat them well nor divorce them easily. While this Act is often called progressive, there have been calls for further change.
Advocate Neelofar Akhtar, president of Mumbai’s Family Court Bar Association, wants urgent amendment of the 1939 Act. This would be in line with reform of other laws dealing with other communities, notably the Hindu Marriage Act, 1955 and Special Marriage Act, 1954. Both were amended in 2001 to allow women to file divorce petitions where they live. In contrast, the Dissolution of Muslim Marriage Act, 1939 insists a woman can file for divorce only where she was married or where her husband lives.
Akhtar describes it as “a discriminatory provision”. She has raised the issue at three All-India Muslim Personal Law Board meetings, the last in Lucknow just days ago. But the mullah-dominated, patriarchal law board has stonewalled the issue. Many point out that the board tried to deny Shah Bano maintenance from the husband who had divorced her in 1978. Subsequently, Rajiv Gandhi’s government diluted the Supreme Court’s judgment that Shah Bano was entitled to alimony. Instead, the government introduced the Muslim Women (Protection of Rights on Divorce) Act, 1986. It is worth noting that the new Act is the only one that is enforceable in a criminal court, rather than in family courts (as are the Personal Law Act and Dissolution of Marriage Act).
The 1986 Muslim Women Act admittedly instituted some reasonable provisions such as maintenance during the iddat period, or three months from the day of divorce. But, it denied — at one stroke — the right to alimony even to destitute divorcees.
Khula, or a woman filing for divorce, has had its share of controversy. Starlet Manyata married Sanjay Dutt after she filed for a khula from then husband Meraj. But Manyata’s first husband challenged the khula she secured from a qazi in Mumbai, saying only a man could give one. He was plain wrong, says lawyer Neelofar Akhtar, who fought and won Manyata’s case. “If the Quran allows men the right to pronounce talaq, it also grants women the right to khula.”
`Women can say triple talaq too'
Dhananjay Mahapatra, `Women can say triple talaq too’, May 17, 2017: The Times of India
Muslim Law Board Informs SC
Marriage in the Muslim community is a contract and it is open to women to insist on specific clauses in the nikahnama to protect their interests and dignity , the All-India Muslim Personal Law Board (AIMPLB) informed the Supreme Court.
Arguing through Ejaz Maqbool, the board submitted before a five-judge Constitution bench headed by Chief Justice of India J S Khehar FULL COVERAGE: P 8 that a woman had four options before entering into a marital relationship, including insisting on registering the marriage under the Special Marriage Act, 1954.
“The woman can also negotiate in the nikahnama and include provisions therein consistent with Islamic law to contractually stipulate that her husband does not resort to triple talaq, she has the right to pronounce triple talaq in all forms, and ask for a very high `mehr' amount in case of talaq and impose such other conditions as are available to her in order to protect her dignity,“ the Muslim law board told the apex court. Interestingly , last September, AIMPLB had filed an affidavit in SC in response to petitions by Shayara Bano and others challenging triple talaq and said, “Sharia grants right to divorce to husbands because men have greater power of decision-making.“
“A Muslim man can delegate his power of pronouncing talaq to his wife or to any other person. However, such delegation does not deprive the husband of his own right to pronounce talaq.“ Arguing against the court putting triple talaq to a constitutional test, advocate Kapil Sibal cited Article 371A to argue that even the Constitution intended to protect matters of practice and customs of communities.
On polygamy , the board had said in September last year, “Quran, Hadith and the consensus view allow Muslim men to have up to four wives.“ It had said Islam permitted polygamy but did not encourage it.“However, polygamy meets social and moral needs and the provision for it stems from concern and sympathy for women,“ it had said. “Since polygamy is endorsed by primary Islamic sources, it cannot be dubbed as something prohibited,“ it said. “...polygamy is not for gratifying men's lust, it is a social need.“
Trends
60% are unilateral
The Times of India, Nov 07 2015
Himanshi Dhawan
60% of triple talaqs unilateral: Survey
A survey of Muslim women -victims of triple talaq -found that 6 out of 10 women were given divorce unilaterally by their husbands. In almost all other cases the divorce was onesided with the woman informed about it by her relatives, the local Qazi or through sms or email. An earlier study by the NGO Bharatiya Muslim Mahila Andolan (BMMA) had found that 92% of Muslim women were opposed to the triple talaq.
The present survey con ducted on 117 women based across the country revealed that in 54% cases, the husband remarried almost immediately and almost 80% women were deprived of maintenance. About 16% of women did not know the mehr (payment or possessions given by the groom's family to the bride) amount ixed during the nikah and in 56% of the cases they were deprived of this token amount itself.
BMMA co-founder Zakia Soman has demanded that triple talaq should be banned.“We are not in favour of uni orm civil code but for re orms in the Muslim personal law and banning triple talaq will be the first step towards it, she said.
The study conducted by BMMA reads like a “horror story and reveals what havoc gross misuse of the noble Is amic law is playing in society, said Prof Tahir Mahmood, a legal scholar.
Instant talaq after the ban: 2017- 2018
248 instant talaq cases reported since ban: Govt, December 13, 2018: The Times of India
The practice of triple talaq continues in the country despite the Supreme Court banning it and the government issuing an ordinance terming it illegal, law minister Ravi Shankar Prasad told Parliament on Wednesday. There were 248 cases in various parts of the country since the SC judgment last year and UP had the highest number of such cases, he added.
Prasad added that unofficial reports said over 477 cases of triple talaq were reported since January 2017. He said since Parliament was not in session, an ordinance banning the practice was promulgated on September 19.
Indian approach
Armed Forces Tribunal rejects ex-parte divorce
The Times of India, May 27 2016
Military tribunal cites statute, rejects jawan's triple talaq plea
Arunav Sinha The Lucknow bench of the Armed Forces Tribunal has rejected the `triple talaq' by an Army jawan through ex parte proceedings, and said no person in the shadow of personal law could go against the Constitution that protected women of every religion in the country. The tribunal said that personal law or the Constitution did not allow any husband to end the wedding orally , by notice, or by ex-parte decisions, while rejecting the petition of jawan Farooq Khan, who had pleaded that after giving oral `talaq' and filing for divorce, he was not bound to pay maintenance to his estranged wife Asrey Jahan.
The tribunal said that maintenance along with the arrears should be paid within three months. Farooq and Asrey got arried in 2009. Within two married in 2009. Within two years, their relationship turned sour. After pronouncing `talaq' orally , Farooq took divorce through an ex-parte notice in 2011.
“Nikah is based on offer and acceptance between man and woman. Unless both agree, there cannot be any nikah. Marriage is a contract...it cannot be rescinded unilaterally,“ the tribunal said.
Zeenat Shaukat Ali’s view
The Times of India, Apr 28 2016
Zeenat Shaukat Ali
Shayara Bano case will be critical for gender justice to Muslim women
The Supreme Court's suo motu decision delivered by Chief Justice T S Thakur and Justice U U Lalit, to test the legal validity of triple talaq in one sitting in the petition filed by Shayara Bano, has long been overdue.Shayara Bano a sociology postgraduate and a mother of two appealed that triple talaq be declared unconstitutional when her husband ended their 15-year-old marriage by sending her a letter with the word talaq written on it thrice. The All India Muslim Personal Law Board has declared that the country's top court has no jurisdiction to undertake the exercise as Muslim Personal Law “is inextricably interwoven with the religion of Islam“, being based on the Quran and not on a law enacted by Parliament. This argument has little logic. It needs to be unequivocally stated that the talaq-ibidat, admitted by the Muslim Personal Law Board to be “sinful“ and an “innovation“, finds no sanction in the Quran.
Neither does the Quran sanction this form of divorce in one sitting nor was it legally held permissible by the Prophet.Such a practice violates the fundamental principles of gender justice, gender equity , good conscience and the dignity of women strongly enunciated in Islam.
The Prophet denounced the pre-Islamic, patriarchal notion of the husband's absolute right to divorce, stating that divorce was the most reprehensible of all things permitted: “God has not created anything on the face of the earth that he loves more than emancipation; and God has created nothing upon the face of the earth more hateful to him than divorce“ (AD 13:3). The Quran illustrates this point by expressing approval when the Prophet recommended that Zayd should not divorce his wife in spite of the fact that there was long standing dissension between husband and wife. “Behold thou should say to one who has received the Grace of God and His favour, retain your wife in wedlock and fear God“ (Q 33:37).
The arbitrary , undisputed, absolute power of divorce by the husband with triple talaq in a single sitting was the common customary law practised in pre-Islamic Arabia in the days of jahiliyya or ignorance, where a husband would discard his wife by contemptuously tossing his slipper saying “you are unto me like my slipper“. This is a grave distortion of the law of divorce in Islam and was condemned by the Prophet as the following Tradition demonstrates: “The Messenger of Allah was informed of a man (Rukhana) who divorced his wife three times together, his face became red and he stood up in displeasure and said: `Is the Book of Allah being sported with while I am still in your midst?'“ (NS 27:6) This mode of talaq, once pronounced, is considered “bain“ or irrevocable where rights of inheritance cease immediately on pronouncement though the death of the husband or wife may occur during the period of iddat or period of waiting.Further, in this form of talaq, if the parties wish to remarry the wife undergoes halala, a humiliating pre-Islamic practice where the wife went through a marriage with another man which is consummated and subsequently dissolved.
As Justice Ameer Ali points out, legitimacy of the triple talaq seems to have crept into Islamic jurisprudence at the instance of the Umayyad monarchs.Inexplicably , although disapproved by the classical jurists, it has been accepted by most Sunni jurists.
Unfortunately the legality of this mode of divorce is upheld in India if the husband were to repudiate his wife during her menstrual flow, if he is in a drunken state, in a fit of temper, in jest, at the slip of a tongue, when the woman is pregnant and other such situations, communicated even by means of a telephone call, an SMS, through Facebook or over Skype.
Needless to say talaq-i-bidat has devastated the lives of many women and children. Deprived of any opportunity for reconciliation, this mode of divorce has been subject to criticism in several Muslim countries.
Modernist interpretation advocated by scholars introduced reform through the juristic means of ijtehad (creative interpretation). Several Muslim countries have brought about reform through codification. Countries like Turkey , Tunisia, Syria, Egypt, Morocco, Iran, Iraq, Malaysia, Indonesia and Pakistan have either reformed the law completely or brought about legally stringent preventive measures in this area. Tunisia brought about reform by de-recognition of the triple talaq within the circumference and perimeter of Islamic law.
The time has come for major strides to be taken to bring about reform and change in the Muslim Personal Law in India. In order to accomplish this, codification of the Muslim Personal Law is an imperative.The process of codification of Muslim Law must now be seriously undertaken by a group of legal experts, experienced jurists well versed in the Muslim law, legal experts, liberal ulema and scholars in the field. Gender-just laws must be the common denominator. Alongside Muslim women, Muslim men's organisations must push for change.
If Muslim countries can bring about reform in family laws India must follow suit. In the words of Justice Hidayatullah: “If the lead is coming from Muslim countries, it is hoped that in the course of time the same measures will be applied in India also.“
High Court judgements
Rashid Ahmad v. Anisa Khatun Privy Council, 1905
Ghiyas-ud-din pronounced triple talaq in 1905, in the presence of witnesses but in the absence of Anita Khatun. She challenged the divorce since she had not been present and because, even after that, they cohabited for 15 years and had 5 children until Ghiyas-ud-din’s death. The Privy Council upheld the triple talaq.
Jiauddin Ahmed v. Anwara Begum Gauhati High Court, 1981
Anwara Begum, who left her husband alleging torture, was granted maintenance by a magistrate court. Her husband Jiauddin contested it in Gauhati High Court, saying he had divorced her. The court ruled that talaq-e-biddat without reasonable cause, reconciliation attempts and involvement of arbitrators would not lead to a valid divorce, and upheld the order awarding maintenance.
Rukia Khatun v. Abdul K Laskar Gauhati High Court, 1981
Rukia Khatun alleged that Abdul Khalique Laskar abandoned and neglected her. He contested her claim for maintenance, asserting he had divorced her by way of talaq-e-biddat. Gauhati High Court listed several ingredients of a valid talaq. It held that triple talaq pronounced by Laskar did not satisfy these, concluded the marriage was subsisting, and held the wife to be entitled to maintenance.
Masroor Ahmed v. state (NCT Delhi) Delhi High Court, 2007
Aisha Anjum alleged that her husband’s family threw her out. Masroor Ahmed filed for restitution of conjugal rights, and she returned. She alleged that she later came to know that he had divorced her by talaq-e-biddat in the presence of her brothers. She said she would not have agreed to conjugal relations had she known of this, and accused Masroor of rape. Delhi HC held that triple talaq can be regarded as one revocable talaq, giving the husband an opportunity to revoke the same.
Nazeer v. Shemeema Kerala High Court, 2016
In a number of petitions where divorced persons had sought deletion of their ex-spouses’ names from their passports, Kerala High Court observed: “This case depicts the misuse of triple talaq, wife appears to have accepted the talaq and moved the court on a folly created by husband… It is for the subordinate court to decide whether there was application of Islamic law in effecting divorce by triple talaq…”
Delhi HC, c.2007
Abhinav Garg, This 10-yr-old HC ruling may come to top court's aid, May 16, 2017: The Times of India
As the Supreme Court grapples with the question on triple talaq, a Delhi high court ruling on the issue can serve as a useful template.
Almost a decade ago, the HC described it “an innovation which may have served a purpose at a particular point of time in history but, if rooted out, such a move would not be contrary to basic tenet of Islam or Quran or against any ruling of Prophet Muhammad.“
However, the ruling by HC had come on a bail plea, limiting the scope of its binding nature. Justice B D Ahmed, quoting Muslim law concepts relating to Sharia, Quran, Hadis and Sunna, concluded that “triple talaq even for Sunni muslims be regarded as one revocable talaq“ allowing the couple “ample opportunity to revoke the same during iddat period.“ HC had said any talaq given in anger was invalid and couldn't be effective, referring to how the Prophet “deprecated“ triple talaq as a sinful one.
Since courts apply Muslim personal law while dealing with divorce cases and have recognised triple talaq to be valid, HC tried to tone down its harshness by making it revocable. If that is done, HC highlighted, then “family members of the spouses could make efforts at bringing about a reconciliation. Moreover, even if the iddat period expires and the talaq can no longer be revoked, the couple still has an opportunity to re-enter matrimony by contracting a fresh nikah on fresh terms of mahr etc.“ This would remove the need for a “Nikaah halala“ that too is being examined by the SC.
HC also linked validity of a triple talaq to attempt at reconciliation, holding that unless there was evidence that the couple tried to re-think, the talaq so pronounced can't be held to be legal. The case pertains to a a bail plea filed by a husband whose wife accused him of rape. She alleged he uttered triple talaq thrice but didn't inform her and by the time she came to know, the couple had continued to live for months.
Triple talaq unilateral, bad in eyes of law: HC
Referring to the practice of triple talaq, the Allahabad high court has observed that under Muslim personal law, marriage is a contract which cannot be rescinded unilaterally .
The HC made this observation in the last week of April while dismissing a petition by Aaqil Jamil, whose wi Don't politicise triple talaq issue, says PM, P 16 fe had filed a criminal complaint against him alleging that he had tortured her for dowry and when his demands were not met, he gave her triple talaq. The court's order in the case was uploaded on the HC's website on Tuesday , two days before the Supreme Court begins hearing a clutch of petitions challenging the validity of triple talaq.
Justice Surya Prakash Kesarwani observed that personal law or the Constitution does not entitle a husband to rescind the contract of marriage orally or by giving a notice or by ex parte decision.“Hence, such a practice is unsustainable and bad in the eyes of law,“ the judge said.
The HC said all forms of discrimination on grounds of gender violate fundamental freedoms and human rights. The human rights of women and of girls are an in alienable, integral and indivisible part of universal human rights, the court said.Hence, talaq by a Muslim husband to his wife cannot be made in a manner which may infringe her fundamental rights guaranteed under Article 14 (right to equality) and Article 21 (right to life) of the Constitution, it added.
The court also made an important observation on the practice of `nikah halala', an Islamic marriage ritual which involves a woman divorcee marrying someone else, consummating the marriage and then getting a divorce in order to make it permissible to remarry her previous husband.
“No lady can be compelled to marry some other person in case she wants to marry her husband again after talaq.This condition to marry another person before remarriage with earlier husband is humiliating and against the dignity of a lady protected by Article 21 of the Constitution of India,“ the judge said.
Kesarwani further said: “All citizens, including Muslim women, have fundamental rights guaranteed by the Constitution. Under the garb of personal law, rights of the citizens protected by the Constitution cannot be infringed on.“
Jamil had filed the petition asking for the quashing of his wife's complaint maintaining that he had given triple talaq to her in 2015. Thereafter, he obtained a fatwa from the city mufti of Agra, in which the latter affirmed the talaqnama and pronounced that her former wife, after being divorced, has become impure (haraam) for the petitioner. Hence, the subsequent complaint filed by his wife must be quashed because as per Islamic personal law, no marriage existed between the parties on the date of filing of complaint, the petition said.
'Triple talaq' a cruel and most demeaning form of divorce: Allahabad HC
The Hindu, December 8, 2016
'Triple talaq' a cruel and most demeaning form of divorce practised by Muslim community: HC
Omar Rashid
Bench says Muslim law in the country are contrary to teachings of Quran and the Prophet; Constitution is supreme over personal laws of any community.
The Allahabad High Court has come down heavily on the practice of “triple talaq”, saying this form of “instant divorce” is “cruel” and “most demeaning”, which “impedes and drags India from becoming a nation.”
“Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce”, a single judge Bench of Justice Suneet Kumar said.
The court observed that “divorce is permissible in Islam only in case of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of marriage by Talaq or by Khola.”
Personal laws of any community cannot claim supremacy over the rights granted to individuals by the Constitution, the Bench said.
The observations were made while dismissing the writ of an elderly Muslim man who was seeking protection for himself and his second wife, half his age.
The man submitted in the court that he had divorced his first wife through the custom of "triple talaq" and now felt threatened by relatives of his second wife and his own family.
"The instant divorce [triple talaq] though has been deprecated and not followed by all sects of Muslim community in the country, however, is a cruel and the most demeaning form of divorce practised by the Muslim community at large. Women cannot remain at the mercy of the patriarchal setup held under the clutches of sundry clerics having their own interpretation of the holy Quran. Personal laws of any community cannot claim supremacy over the rights granted to individuals by the Constitution," the court said.
Justice Kumar said the matter was in the Supreme Court. "I would not like to say anything further for the reason that the Supreme Court is seized with the matter."
The arbitrary use of "triple talaq" by Muslim men was not in sync with Islamic law, he said.
"The judicial conscience is disturbed at this monstrosity. The first wife has to live life for no fault of her but for the reason that her husband got attracted to a lady half of her age which is the reason for being divorced. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict evil instant divorce does not accord with Islamic injunctions," he said.
"It is a popular fallacy that a Muslim male enjoys, under the Quranic Law, unbridled authority to liquidate the marriage," he said.
Talaq certificates by Chief Kazi have no legal sanctity: Madras HC
The Madras High Court on Wednesday passed an interim order restraining the Chief Kazis from issuing ‘talaq certificates’ (a certificate validating talaq as per Islamic Shariat) till further orders.
The First Bench of Chief Justice S.K. Kaul and Justice M.M. Sundresh also clarified that “for the purposes of courts of legal proceedings, the certificate issued by the Chief Kazi is only an opinion and has no legal sanctity.”
Order on PIL plea
The Bench passed the order on a public interest litigation petition moved by senior advocate Bader Sayeed seeking to declare that Kazis in India, particularly Tamil Nadu, were not empowered to certify talaq.
Ms. Sayeed claimed that Kazis were issuing certificates recognising talaq without following necessary precedents like reconciliation. Sometimes, it was done without even the knowledge of the wife.
“Such certificates issued in an arbitrary manner are causing undue hardship to Muslim women,” she said.
She said the Kazis, once considered judicial authorities under the Muslim Personal Law, no longer possessed such powers after courts of law were established during the British regime. The Kazi Act established in 1880 was very clear. It had not vested any powers of adjudication with Kazis.
“Even assuming that the practice of talaq in respect of personal law is constitutionally valid, whether the conditions for invoking triple talaq were satisfied or not cannot be adjudicated by Kazis. The said process can be conducted only by a court of law,” Ms. Sayeed said.
Only an opinion
The petitioner contended that the nature of such certificates were causing immense confusion in the matrimonial proceedings and in the understanding by both the spouses as to the effect of such a certificate being issued by the Chief Kazi.
She produced some certificates to the court and pointed out that the tenor of such certificates remained the same since 1997. It merely stated that “on a representation of the spouse on a particular date, the talaq pronounced in respect of his wife is valid as per Islamic Shariat.”
“As to what facts which persuaded the Kazi to opine to issue a certificate has not been set out. Moreover, it does not clarify that the certificate is only in the nature of opinion,” the petitioner argued.
To this, the Muslim Personal Law Board submitted that it was willing to examine the format in which such certificate may be issued as an opinion of the Kazi, so that there would be no ambiguity on its effect.
The Bench passed the interim direction pending consideration of the issue by the Muslim Personal Law Board.
UK court, 2018: English law covers Islamic marriage
Court: Islamic marriage covered by English law, August 2, 2018: The Times of India
The UK high court ruled that an Islamic faith marriage does fall within the purview of English matrimonial law as it granted a woman a decree to nullify her bond with her estranged husband.
The Pakistani-origin couple, Nasreen Akhter and Mohammed Shabaz Khan — both 46, had got married in an Islamic wedding ceremony under Sharia law in a restaurant in west London, in 1998. Akhter, a solicitor, wanted to divorce her businessman husband Khan, who had blocked her application on the basis that they are not legally married under English law but under the Sharia law.
Barrister Paula Rhone-Adrien, who led Khan’s legal team, had told the court during the trial earlier in the year that the case could have implications for people of a number of faiths, including Hindus and Sikhs. The judge analysed the dispute and announced his decision this week that the marriage falls within the scope of the UK’s 1973 Matrimonial Causes Act. Earlier this year, a panel of experts had concluded that Muslim couples should be required to undergo civil marriages in addition to Muslim ceremonies.
SC and the Triple Talaq
See graphic: How the Supreme Court judges ruled in August 2017 and the five women who led the fight
1932: Privy Council upholds triple talaq (Anisa Khatun case)
By declaring triple talaq unconstitutional, the Supreme Court overturned an 85-year-old judicial decision that had upheld the validity of the controversial practice permitting a Muslim man to instantaneously divorce his wife.
In 1932, triple talaq had come up for scrutiny before the Privy Council, which was the predecessor of the Supreme Court during British rule, when a Muslim woman Anisa Khatun narrated her tragic story. She was married to Ghiyas-ud-din on August 28, 1905 and just a fortnight later, he called witnesses in Anisa's absence and uttered triple talaq. Despite divorce, he cohabited with Anisa for 15 more years till his death and fathered five children.
But after his death, his relatives cited triple talaq to term Anisa's children illegitimate. The Privy Council held triple talaq to be a legitimate method of divorce and termed the five children illegitimate. Lord Thankerton, speaking for the Privy Council, had said, “They are of the opinion that the validity and effectiveness of the divorce would not be affected by husband's mental intention that it should not be a genuine divorce, as such a view is contrary to all authority. A talaq actually pronounced under compulsion or in jest is valid and effective.“ But the first reported verdict pertaining to triple talaq was delivered in a Bombay case in 1906 in Sarabai vs Rabiabai in which Justice Batchelor had termed triple talaq “good in law though bad in theology“.
After the Privy Council rendered the judgment in 1932, statutory status came to be conferred on Muslim personal law `Shariat' -in 1937. In 1971, the Kerala High Court said the views of the erstwhile British courts on per sonal law were based on an incorrect understanding of `Shariat' and needed to be examined.
“Since infallibility is not an attribute of the judiciary , the view has been ventured by Muslim jurists that the Indo-Anglian judicial exposition of Islamic law of divorce has not exactly been just to the Holy Prophet or the Holy Book,“ the HC had said.
A decade later, the Gauhati HC had held that triple talaq pronounced by the husband without reasonable cause, and without being preceded by attempts of reconciliation, and without the involvement of arbitrators with due representation on behalf of the husband and wife, would not lead to a valid divorce.
The Delhi HC in 2008 held that triple talaq pronounced at the same time was to be treated as a single pronouncement of divorce. “And, therefore, for severing matrimonial ties finally, the husband would have to complete the prescribed procedure, and thereafter, the parties would be treated as divorced,“ it had said. The SC for the first time in 2002 in Shamim Ara vs UP case observed that triple talaq lacked legal sanctity . It had said judgments of various HCs “are eye openers for those who think that a Muslim man can divorce his wife merely at whim or on caprice“. The verdict in this case set the tone for the present judgment. But still, it stayed short of declaring triple talaq unconstitutional to ban its practice.
The majority in the five-judge constitution bench said the 1932 Privy Council verdict did not hold good after Shamim Ara judgment.
“This being the case, it is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution,“ the majority verdict of the SC said.
2017/ SC: triple talaq unconstitutional (Shayara Bano etc.)
Krishnadas Rajagopal, August 22, 2017: The Hindu
HIGHLIGHTS
CJI Khehar and justice Abdul Nazeer held triple talaq to be part of fundamental right to religion of Muslims.
CJI Khehar and Justice Nazeer ordered a stay on practice of triple talaq for six months.
Justices Kurian Joseph, Nariman and UU Lalit said triple talaq violated fundamental right of Muslim women.
Supreme Court strikes down triple talaq, terms it unconstitutional by 3:2 majority
In a majority 3:2 judgment, a five-judge Bench of the Supreme Court set aside talaq-e-biddat or instant and irrevocable talaq as a "manifestly arbitrary" practice, which is not protected by Article 25 (freedom of religion) of the Constitution.
Chief Justice J S Khehar and justice S Abdul Nazeer held triple talaq to be part of fundamental right to religion of Muslims and said it was not unconstitutional.
But, Justices Kurian Joseph, R F Nariman and U U Lalit said triple talaq violated the fundamental right of Muslim women as they are subjected to arbitrary irrevocable divorce through this practice.
These are the five women who fought triple talaq
CJI Khehar and Justice Nazeer, even while holding triple talaq to be valid, ordered a stay on this practice for six months to enable legislature bring a law banning this practice. They said if a legislation banning triple talaq completely+ is placed before Parliament within six months, the stay on the practice would continue till Parliament enacted or rejected the law.
But, justices Joseph, Nariman and Lalit through different reasonings reached the conclusion that triple talaq was unconstitutional. Justice Joseph said triple talaq was not sanctioned by Quran and hence could not form part of the fundamental right to religion.
SC: Arbitrary, unequal, unreasonable
Dhananjay Mahapatra, August 23, 2017: The Times of India
Fails Test Of Reasonableness, Says Majority Judgment
The five Muslim women petitioners who challenged the validity of triple talaq and the Centre made right to life, liberty and dignity guaranteed under Article 21 their main plank to request the Supreme Court to junk the instant divorce weapon exclusively given to Muslim men.
Realising that right to life, liberty and dignity under Article 21 carried much more weight with the SC, they made Article 14, which provides for equality before law and non-discrimination, their secondary weapon to attack the constitutionality of triple talaq.
But the majority judgment, the foundation of which was laid by Justices R F Nariman and U U Lalit, blew away triple talaq as it said it failed the test of reasonableness, thus violating Article 14.
Disagreeing with the judgment rendered by Chief Justice of India J S Khehar and Justice Abdul Nazeer, Justices Nariman and Lalit observed, “It is clear that all forms of talaq recognised and enforced by Muslim personal law are recognised and enforced by the Muslim Personal Law (Shariat) Application Act, 1937. This would necessarily include triple talaq when it comes to the Muslim personal law applicable to Sunnis in India.“
Recognising the cardinal importance of right to equality and reasonableness of a legislation, in this case the 1937 law, Justices Nariman and Lalit said, “It is important to note that subordinate legislation can be struck down on the ground that it is arbitrary and, therefore, violative of Article 14. “Applying the test of manifest arbitrariness to the case at hand, it is clear that triple talaq is a form of talaq which is itself considered to be something innovative, namely that it is not in the Sunna, being an irregular or heretical form of talaq... it is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.“
Justice Kurian Joseph built on the foundation laid by Justices Nariman and Lalit. He said, “On the pure question of law that a legislation, be it plenary or subordinate, can be challenged on the ground of arbitrariness, I agree with the illuminating exposition of law by Justice Nariman. I am also of the strong view that the constitutional democracy of India cannot conceive of a legislation which is arbitrary .“
Bhopal qazis said no to it ages ago
Dar-ul-Qaza Bhopal -one of India's oldest Sharia courts -has not accepted triple talaq for years, Qazi Syed Mustaq Nadvi told TOI on Tuesday.
Instead of acknowledging talaq-i-biddat, the court, which has been functioning since the rule of Begum Nawabs, takes measures against “arbitrary manifestation of divorce“.
In this court, if a man has the right to give talaq, his wife also has a right to seek divorce or `khula'. Twice as many women sought divorce in Bhopal Qaziat as men. “No one gives talaq when happy. We counsel couples and give them time to decide. Often, ruju takes place (where the husband decides to take back his wife before the end of the iddat),“ said Nadvi, as he presided over the 300-year-old Islamic court on Tuesday.
It is the only Sharia court in India that gets a government grant of about Rs 60 lakh a year under the agreement of merger of Bhopal State with Union of India in 1949. It hears cases from Bhopal, Sehore and Raisen -all once part of Bhopal State. TNN
How the judges were divided over triple talaq
Krishnadas Rajagopal, August 22, 2017: The Hindu
HIGHLIGHTS
The Supreme Court set aside triple talaq with a 3:2 majority
Justices Kurian Joseph, RF Nariman and UU Lalit held that triple talaq is not integral to Islam, is bad in law and lacks approval of the Shariat
Chief Justice JS Khehar and Justice SA Nazeer held that tripletalaq was integral to the Muslim faith and enjoyed constitutional protection
NEW DELHI: In a historic verdict, the Supreme Court on Tuesday brought the curtains down on the 1,400-year-old practice of 'triple talaq' among Muslims. A five-judge constitution bench, by a majority of 3:2 in which Chief Justice J S Khehar was in minority, said the practice of "'talaq-e-biddat' (triple talaq) is set aside". The majority judgement pronounced by Justices Kurian Joseph, R F Nariman and U U Lalit did not concur with the CJI and Justice Nazeer's opinion that 'triple talaq' was a part of religious practice and the government should step in and come out with a law.
Religious law vs the Constitution
Minority verdict: Chief Justice J S Khehar and Justice S A Nazeer held that 'talaq-e-biddat' is a matter of 'personal law' of Sunni Muslims belonging to the Hanafi school and constitutes a matter of their faith as it has been practised by them for at least 1,400 years.
"We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the conclusion, that the practice being a component of 'personal law', has the protection of Article 25 of the Constitution," CJI Khehar and justice Nazeer said.
Majority verdict: Justice Kurian Joseph, who penned a separate majority judgement, disagreed with the CJI that the practice of triple talaq has to be considered integral to religious denomination.
"Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 (Muslim Personal Law (Shariat) Application) Act was to declare Shariat as the rule of decision and to discontinue anti- Shariat practices with respect to subjects enumerated in section 2 which include talaq," he said.
This view was endorsed by Justices Nariman and Lalit as well.
Judicial action vs legislative intervention
Minority verdict: CJI Khehar and justice Nazeer noted that triple talaq among the Muslims was an integral part of religion and faith that cannot be declared as unconstitutional, but "gender discriminatory" practice can be done away by way of legislation. They asked the government to frame a law in this regard in six months and, till the time a new legislation is enacted, the practice of divorce through triple talaq, known as 'talaq-e- biddat' would not be in operation.
Majority verdict: Justice Kurian Joseph said the process of harmonising different interests was within the powers of the legislature and this power has to be exercised within the constitutional parameters without curbing religious freedom guaranteed under the Constitution.
Manifestly arbitrary
In his judgment, Justice Nariman observed that it is "not possible for the court to fold its hands when petitioners [Muslim women] come to court for justice."
He said triple talaq in all its three forms — talaq-e-biddat, talaq ahsan and talaq hasan — was "recognised and enforced" under Section 2 of the Shariat Act of 1937.
He explained that since the Shariat Act had recognised triple talaq, it was no longer a personal law to remain free of the fetters of the fundamental rights rigour but a statutory law which comes under the ambit of Article 13(1) of the Constitution.
Article 13 defines 'law' and says that all laws, framed before or after the Constitution, shall not be violative of the fundamental rights.
Justice Nariman said talaq-e-biddat allowed a Muslim man to "whimsically and capriciously" divorce his wife. The practice is "manifestly arbitrary" and does not enjoy the protection of Article 25. Moreover, he noted, instant talaq was merely permissive and not a absolute religious practice, and so, does not deserve the protection of Article 25, again. This view was supported by Justice Lalit.
Against the tenets of Quran
In his judgment, Justice Kurian held that instant talaq was against the tenets of Quran. "What is banned in Quran cannot be good in Shariat. What is banned in theology cannot be good in law," he observed.
Justice Kurian differed with Chief Justice Khehar that just because a practice has been around for 1,400 years does not make it eligible for protection under Article 25.
He also differed with the Chief Justice that triple talaq as a personal law is integral to religious belief. He said the practice should not violate public health, morality and order.
'Instant talaq can be done away through legislation'
Reading his minority judgment first, Chief Justice Khehar observed that talaq-e-biddat was widely accepted by Sunnis. He rejected the contention that talaq-e-biddat ceases to be personal law and has attained statutory status under the Shariat Act of 1937.
"The practice [biddat] cannot be set aside on the violation of constitutional morality through a judicial order," he held.
Any change in talaq-e-biddat can be done by way of legislation. The fact that international law and theocratic countries have dropped talaq-e-biddat do not matter as biddat is a part of personal law in India and come under the protection of Article 25, he said.
However, invoking Article 142 to injunct Muslim men from divorcing through talaq-e-biddat, the Chief Justice said the fact that even the Muslim world has shed talaq-e-biddat and there is no excuse for independent India to lag behind. He appealed to political parties and lawmakers to set aside their individual gains and give "thoughtful consideration" to frame a suitable law.
The issue was whether talaq-e-biddat was violative of the fundamental and human rights of gender equality and dignity of Muslim women.
On October 16, 2015, the Supreme Court questioned if Muslim personal law practices of marriage and divorce reduce women to mere chattels. In a rare move, it registered a suo motu public interest litigation (PIL) petition titled ‘In Re: Muslim Women’s Quest for Equality’ to examine if arbitrary divorce, polygamy and nikah halala (where a Muslim divorcee marries a man, divorces him to get re-married to her former husband) violate women's dignity.
The court rued missing the opportunity to address the question of gender inequality in both the Shah Bano and Danial Latifi cases. In the Shah Bano case, the court merely goaded the government to frame a Uniform Civil Code. In the Latifi case, it upheld the right of Muslim women to maintenance till re-marriage.
For the first time, Muslim women and organisations joined forces with the court's initiative. However the Constitution Bench decided to confine itself to examining triple talaq and not polygamy and nikah halala. The arguments later narrowed to instant talaq or talaq-e-biddat.
Three forms of talaq
There are three forms of talaq — Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable. Biddat — pronouncing divorce in one go by the husband — is irrevocable. Biddat is considered ‘sinful’ but permissible in Islamic law. The All India Muslim Personal Law Board (AIMPLB) holds that for the Hanafis, who make more than 90% Sunnis in India, triple talaq is a matter of faith followed for 1,400 years.
For over 65 years, women have remained extremely vulnerable. “Muslim women want to have a life equal to that of another woman, say a Christian or a Hindu wife," the government had argued in court.
The Centre had claimed that instant talaq was not fundamental to Islam. It promised to bring a new divorce law for Muslim men in case the court strikes down Ahsan, Hasan and Biddat.
The government argued that Muslim marriage and divorce is codified under Section 2 of the Shariat Act of 1937 and came within the ambit of 'law' under Article 13 of the Constitution. Hence, they should abide by the principles of dignity and non-discrimination.
The AIMPLB had countered that triple talaq is a matter of faith like the Hindu belief that Ayodhya is Lord Ram's birthplace. Courts and government should leave reform to the community. They quoted the Bombay High Court's unchallenged decision in the Narasu Appa Mali case that personal law should not be tinkered with.
Where will Muslim men go for divorce if you [court] strike down talaq and Parliament refuses to pass a new law?, the AIMPLB asked.
Justice Kurian had ignited a spark by suggesting an alternative that a Muslim bride, at the time of the wedding, should be allowed to lay down a condition in the nikah nama that she would not be subjected to instant talaq in case the marriage hits a rough patch.
Days after the court reserved the case for judgment, the AIMPLB filed an affidavit informing that they would issue a public advisory to qazis to advise bridegrooms against instant talaq and also add a condition in the nikah nama to exclude instant talaq. The AIMPLB even threatened a social boycott of those who resort to instant talaq.
5 judges of 5 faiths on triple talaq bench
5 judges of 5 faiths on SC triple talaq bench , May 11 2017: The Times of India
A unique combination of five Supreme Court judges belonging to different faiths will start hearing final arguments on the constitutional validity of triple talaq, the first day of the SC's summer vacation.
For a sensitive issue like this, the lead petition is aptly titled “Quest for Equality vs Jamiat Ulama-i-Hind“. And hearing the case will be five judges from five different communities -CJI J S Khehar (Sikh) and Justices Kurian Joseph (Christian), R F Nariman (Parsi), U U Lalit (Hindu) and Abdul Nazeer (Muslim).
However, it needs to be mentioned here that a judge decides a case only on the consideration of merit and nothing else as she takes oath that “I will bear true faith and solemnly affirm faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability , knowledge and judgment perform the duties of my office without fear or favour, affection or ill will and that I will uphold the Constitution and the laws.“
Tagged with the case are six petitions by Khuran Sunnath Society , Shayara Bano, Aafreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri.
Justice Nazeer silent during 6-day hearing
A unique, multifaith five-judge bench of the Supreme Court, with a Sikh, Christian, Parsi, Hindu and Muslim on it, concluded hearings on the challenge to the triple talaq practice on Thursday but Justice Abdul Nazeer did not utter a single word during the six-day hearing.
CJI J S Khehar and Justices Kurian Joseph, R F Nariman and U U Lalit freely engaged the counsel seeking clarifications on doubts over religious practices and customs of the Muslim community, but Justice Nazeer had no question to ask. Probably , he was well aware of the origin, practice and prevalence of triple talaq among Muslims in India and abroad.
No hearing in any court in India on any Muslim custom, practice or personal law can be complete without referring to Sir Dinshah Fardunji Mulla's monumental work on interpretation of Mohamedan law. When Mulla was referred to by senior advocate Salman Khurshid on Thursday , Justice Nariman said, “Mulla was not only a great scholar on Muslim law but also a qualified priest like me in the Parsi community .“
Justice Joseph, who had absented himself from the Chief Justices Conference in 2015 protesting at the event being scheduled on Good Friday and shooting off a letter to the PM reminding him that equal importance must be shown to sacred days of all religions, was the most vociferous. He asked simple and intricate questions about the connection between religion and social practices.He also made the counsel feel at ease before the bench.
While AIMPLB was adamant that Muslim personal law practices could not be tested for its validity by courts, the petitioners were adamant that triple talaq was a blot on the Muslim community for denying right to equality to women.With the division getting sharper as the conclusion of hearing neared, senior advocate Indira Jaising said, “The SC has to walk the razor's edge.There is no escaping this.“ CJI Khehar replied in a lighter vein, “If we walk the razor's edge, we will be cut into two.“
Another advocate, Ashwini Upadhyay , attempted to ridicule AIMPLB's stand saying tomorrow there would be a Hindu Personal Law Board to take a rigid stand on Hindu practices. The bench stopped him and said, “You are a lawyer, don't argue this.“
A brief timeline, October 2015-August 2017
Triple talaq verdict: A timeline of events that led to Supreme Court’s ruling, Aug 22 2017: Livemint
Supreme Court says the practice of instant triple talaq was violative of Article 14 and 21 of the Indian Constitution. Here’s a timeline of events that led to ruling
New Delhi: The Supreme Court set aside the practice of instant triple talaq saying it was violative of Article 14 and 21 of the Indian Constitution. The bench comprising of five judges, headed by Chief Justice J. S. Khehar, had reserved its verdict on 18 May, six days after the hearing began on 11 May.
The Supreme Court’s ruling was restricted to the constitutional validity of triple talaq and it did not go into other issues of polygamy and nikah halala under the Muslim personal law.
Here is a timeline of events which set off the apex court hearings:
2015
■ 16 October: SC bench asks the Chief Justice of India to set up an appropriate bench to examine if Muslim women face gender discrimination in cases of divorce, while dealing with a case of Hindu succession.
2016
■ 9 December: The Allahabad high court, in a verdict, stops short of calling the practice of triple talaq under Muslim law unconstitutional, but observes that personal laws could not override constitutionally guaranteed rights of individuals.
■ 7 October: For the first time in India’s constitutional history, Centre opposes in SC these practices and favours a relook on grounds like gender equality and secularism.
■ 29 June: SC says triple talaq among Muslims will be tested on “touchstone of constitutional framework”.
■ 28 March: SC asks Centre to file a copy of the report of a high-level panel on “Women and the law: An assessment of family laws with focus on laws relating to marriage, divorce, custody, inheritance and succession”.
SC also impleads various organisations, including the AIMPLB, as parties in the suo motu matter.
■ 5 February: SC asks Attorney General Mukul Rohatgi to assist it on the pleas challenging the constitutional validity of triple talaq, nikah halala and polygamy.
2017
■ 18 May: SC reserves verdict on batch of petitions challenging constitutional validity of the practice of triple talaq among Muslims.
■ 17 May: SC asks the All India Muslim Personal Law Board (AIMPLB) whether a woman can be given an option of saying “no” to triple talaq at the time of the execution of the nikahnama (Islamic marriage contract). A five-judge Constitution bench headed by chief justice J.S. Khehar also said all qazis can be asked to include this condition at the time of marriage.
■ 16 May: All India Muslim Personal Law Board (AIMPLB) says triple talaq is a 1,400-year-old practice, and constitutional morality and equity cannot arise when a matter of faith is concerned.
■ 15 May: Attorney general Mukul Rohatgi tells SC that the Centre will bring in a new law to regulate marriage and divorce among Muslims if the practice of triple talaq is declared unconstitutional. He also asked the court to examine other aspects of Muslim personal law, including nikah halala and polygamy.
■ 12 May: SC says the practice of triple talaq was the “worst” and “not desirable” form of dissolution of marriages among Muslims, even though there were schools of thought which termed it as “legal”.
■ 11 May: SC says it would determine if the Muslim practice of triple talaq is in line with the Constitution and fundamental to Islam. “We will only look at triple talaq and whether it is constitutional and not go into issues such as polygamy,” a five-judge Constitution bench said.
■ 30 March: SC says these issues are “very important” and involve “sentiments”, says a Constitution bench would start hearing from 11 May.
■ 3 May: SC allows Salman Khurshid as amicus curiae in hearing of pleas challenging constitutional validity of triple talaq, nikah halala and polygamy.
■ 29 April: The opposition charges Prime Minister Narendra Modi with politicising the triple talaq issue for electoral mileage even as Bharatiya Janata Party (BJP) minister Swami Prasad Maurya said Muslim men use it to change wives and satisfy their “lust”.
■ 21 April: Delhi high court dismisses plea seeking to stop the practice of triple talaq on Hindu women married to Muslim men.
■ 18 April: Attorney General Mukul Rohatgi says practice of triple talaq should not be allowed as women have as much right as men and cannot be kept on a lower pedestal.
■ 17 April: Uttar Pradesh chief minister Yogi Adityanath says the politicians maintaining silence on the issue of triple talaq were equally responsible as those practising it. The CM linked the Muslim practice of divorce to the disrobing of Draupadi in the Mahabharata.
■ 16 April: Raising the triple talaq issue, PM Narendra Modi says justice should be done to Muslim women.
AIMPLB says the board has decided to issue a code of conduct and warns that those who give talaq (divorce) without Sharia (Islamic law) reasons will face social boycott.
■ 14 April: Bahujan Samaj Party (BSP) chief Mayawati says SC should decide the issue of triple talaq as per the Constitution to ensure justice for Muslim women.
■ 11 April: Centre tells SC that the practices of triple talaq, nikah halala and polygamy impact the social status and dignity of Muslim women and deny them fundamental rights guaranteed by the Constitution.
■ 27 March: AIMPLB tells SC that these pleas were not maintainable as the issues fall outside the judiciary’s realm.
■ 16 February: SC says a five-judge constitution bench would be set up to hear and decide the challenge on triple talaq, nikah halala and polygamy.
■ 14 February: SC allows various interlocutory pleas to be tagged along with the main matter.
CJI's view had contradiction, Joseph caught it
Dhananjay Mahapatra, August 24, 2017: The Times of India
Justice Kurian Joseph caught the constitutional contradiction in Chief Justice J S Khehar's 272-page judgment which held the minority view -that triple talaq was a constitutionally valid mode of divorce being intrinsic to Islamic personal law and hence part of fundamental rights.
Of the 272 pages, Justice Khehar and Justice S Abdul Nazeer devoted 268 pages to examine triple talaq from every possible perspective -legal, constitutional and theological -and recorded, “We have arrived at a conclusion that talaq-e-biddat (triple talaq) is a matter of `personal law' of Sunni Muslims belonging to Hanafi school. It constitutes a matter of their faith. It has been practised by them for at least 1,400 years.
“We have examined whether the practice satisfies the constraints provided under Article 25 (right to religion) of the Constitution, and have arrived at the conclusion that it does not breach any of them. We have also come to the conclusion that the practice being a component of `personal law', has the protection of Article 25 of the Constitution.“
Having constitutionally cloaked triple talaq, the CJI declared, “Religion is a matter of faith, and not logic. It is not open to a court to accept an egalitarian approach over a practice which constitutes an integral part of religion.The Constitution allows the followers of every religion to follow their beliefs and religious traditions. The Constitution assures believers of all faiths that their way of life is guaranteed and would not be subjected to any challenge, even though they may seem to others (and even rationalists practising the same faith) unacceptable in today's world and age.“
At the end of the 268th page, the CJI said, “Article 25 obliges all constitutional courts to protect `personal law' and not to find fault therewith. Interference in matters of `personal law' is clearly beyond judicial examination. The judiciary must therefore, always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal may seem.“
After making triple talaq immune from judicial interference, the CJI remembered the SC's constitutional powers under Article 142 to do `complete justice'.
In the last four pages, the CJI dealt with the near unanimous view that the practice was “arbitrary and gender discriminatory“ and said India should take the legislative route to do away with this practice as had been done by countries with sizeable Muslim populations and even by theocratic Islamic states.
This four-page discussion persuaded the CJI and Justice Nazeer to stay the practice of triple talaq, which they had declared to be a fundamental right.
This raised the discomfiting question -can a constitutional court stay the operation of a fundamental right? The CJI and Justice Nazeer did that, albeit for a period of six months, to enable Parliament to legislate on it.
They even went on to “beseech different political parties to keep their individual political gains apart while considering the necessary measures requiring legislation“.
Justice Joseph, who along with Justice R F Nariman and Justice U U Lalit constituted the majority in striking down triple talaq, caught this contradiction, even though mentioning it fleetingly , out of respect for the CJI, in his 27-page judgment.
Justice Joseph said, “After the introduction of the Muslim Personal Law (Shariat) Application Act, 1937, no practice against the tenets of Quran is permissible. Hence, there cannot be any constitutional protection to such a practice (triple talaq) and, thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq.“
He nailed the contradiction by writing, “I also have serious doubts as to whether even under Article 142, the exercise of a fundamental right can be injuncted (stayed).“
2017: Govt won’t enact law to ban triple talaq
Govt won’t bring law to ban triple talaq, Aug 23, 2017: The Times of India
HIGHLIGHTS
The five-judge SC bench by a majority verdict has held instant divorce as unconstitutional and illegal, a top government source said.
SC verdict is enough and violators can be prosecuted for domestic violence.
NEW DELHI: The government does not plan to bring any legislation to ban triple talaq as the five-judge Supreme Court bench by a majority verdict has held instant divorce as unconstitutional and illegal, a top government source said.
There was no requirement of a legislation to implement this order, the functionary added and pointed out that anyone persisting with the practice of instant talaq+ could be prosecuted under domestic violence laws. Such a violator could be sent to jail if a woman approached the police for harassment on these grounds and the SC order would act as a deterrent seems to be the view of the government in the wake of the verdict.
"India of 2017 is not the India of 1986-87, the leadership of Narendra Modi is not the same as that of Rajiv Gandhi," law minister Ravi Shankar Prasad said, referring to the Shah Bano judgment of the apex court which the then Rajiv Gandhi government, enjoying absolute majority in Parliament, overturned in 1986, diluting rights of Muslim women for maintenance on the grounds of triple talaq.
The government, he said, strongly backed the judgment and would "consider the issue in a structured manner". He said this was the beginning of the fight for equality for Muslim women. Prasad said the issue was not of religion and religious practices, it was of gender justice, gender dignity and gender equality. "It's a great dawn for women's empowerment....
We need to understand that 22 countries have regulated triple talaq, abolished it or laid down stringent preconditions for its exercise but India being a secular country it was insulated by this change," the law minister said.
Terming the SC judgment agreat legal and moral victory for women in India, the minister said he had the support of PM Modi who wanted the government to take a strong stand in the courts on this issue. Prasad pointed to the judgment of Justice Kurian Joseph, saying what was held to be bad in the Quran could not be good in Shariat, adding that the government had stressed that several Muslim-majority nations had done away with or restricted triple talaq.
2018: cabinet approves ordinance to make triple talaq punishable
Union Cabinet approves ordinance on triple talaq, September 19, 2018: The Times of India
The Union Cabinet approved an ordinance making triple talaq a punishable offence, said Ravi Shankar Prasad, minister for law and justice, IT.
He said that inspite of the Supreme Court annulling it last year, the practice continued "unabated".
Addressing a press conference, the Union minister accused the Congress of not cooperating in the passage of the 'Muslim Women Protection of Rights on Marriage Bill.
Describing the practice as "barbaric and inhuman", he said nearly 22 countries have regulated triple talaq. However, gender justice was given a complete go-by in a secular country like India because of blatant vote bank politics.
"I will again appeal to Sonia ji that this ordinance has been brought in the interest of the country to bring gender justice. I appeal to you to rise above vote bank politics and help pass it in the interest of justice for women," he told reporters after the Cabinet meeting.
The move comes after the government had failed to pass it through both houses of Parliament. The move is being viewed as a big win for the rights of Muslim women.
The bill to criminalise talaq-e-biddat was passed by the Lok Sabha in the winter session of Parliament but got stuck in the Rajya Sabha with the opposition parties having reservations over criminal provisions in the draft law.
In view of the growing opposition to the legislation, the government in August approved three amendments to the 'Muslim Women Protection of Rights on Marriage Bill'. According to the new amendments, the proposed law will remain "non-bailable", and the accused can approach a magistrate even before trial to seek bail.
Under a non-bailable law, bail cannot be granted by police at the police station itself.
Another amendment makes it clear that the police would lodge FIR only if approached by the victim (wife), her blood relations or people who become her relatives by virtue of her marriage.
The third amendment makes the offence of instant triple talaq "compoundable", where a magistrate can use his powers to settle the dispute between a husband and his wife. Under a compoundable offence, both parties have the liberty of withdrawing the case.
The SC had in a verdict in August last year declared instant triple talaq illegal and unconstitutional.
State-wise position
2016: Telangana qazis oppose one-sided talaq
The Times of India, Apr 22 2016
Syed Mohammed
At a time when the All India Muslim Personal Law Board (AIMPLB) is opposing any move to scrap triple talaq and is all set to contest the Shayara Bano case in the Supreme Court, the qazis of Telangana are silently bringing in change by discouraging a different type of divorce -one they describe as `one-sided talaq'.
Qazis point out that there have been hundreds of cases over the last several months in which men have sought to divorce their wives without informing them of their intentions.Such spouses seek to deposit the meher (dower) with qazis and request them to send their spouses notices of divorce. However, qazis claim that this procedure finds no religious sanction.
Qazi Mir Mohammed Khader Ali, who heads the Anjuman-e-Qazat, or the council of qazis, said he turned down at least 200 such requests last year and insisted that the applicant's wife be present at the time of filing for divorce. “Talaq is very much a legal provision. But not informing the wife about talaq, depositing the dower with qazis and scooting is not right,“ he said.
Calling it a `misuse' of the divorce provision, Ali said such incidents occur due to lack of understanding of Islam and Islamic laws.
Chief qazi of Secunderabad and Secunderabad Cantonment jurisdiction, Syed Shah Noorul Asfia Soofi, said he had come across more than a dozen such cases in last few months.“The only way to put an end to this is to not entertain the affidavit for divorce unless both parties are present or till talaq has been pronounced. Once the man returns with his wife, counselling can be done and perhaps the marriage can be saved,“ he said.
Qazi Ikramullah, who heads the Nalgonda Qazat, said “at least 15 percent of marriages can be saved if one sided talaq is discouraged“. Qazis point out that to tackle the menace, the archaic Khazis Act of 1880 needs to be amended.
Qazi Mohammed Yusufuddin Askar from the Qila Mohammed Nagar Qazat, a jurisdiction which covers large portions of Golconda, said a conference of heads of agencies associated with the Minorities Welfare Department (MWD) and parliamentarians should be convened to decide the future course of action. “The police can play an active role in stopping this,“ he said.
The Goan way
Sources:
1. The Times of India, Apr 03 2016
2. The Times of India, April 3, 2016
Freedom from triple talaq: Goa shows the way
Goa is the only state that disallows personal laws of all religions. It has a uniform civil code -with a few exceptions not relevant to Muslims -based on Portuguese colonial laws. Goa's mullahs sought to extend Muslim personal law to Goa after liberation from Portuguese rule, but happily were foiled by the Goa Muslim Women's Associations and Muslim youth activists. Muslims account for 8.3% of Goa's population, and are a prosperous community . The civil code has not oppressed Goan Muslims or forcibly Hinduised them.
A step forward in gender justice is the Supreme Court’s admission of the petition of a Muslim woman, Shayara Bano, pleading that polygamy and oral triple talaq —saying talaq thrice in succession — violate fundamental human rights, and hence are unconstitutional. Indian politics has always sabotaged gender justice for Muslim women. But the Supreme Court does not have to woo Muslim vote banks, and can be objective.
The mullahs are livid, of course. Kamal Farooqi of the All India Muslim Personal Law Board says, “This will mean direct interference of the government in religious affairs as Sharia religious law is based on the Quran and Hadith, and its jurisprudence is strong as far as Islam is concerned. It will be against the constitutional right to religious freedom.” Sorry, but the Constitution makes it very clear that freedom of religion does not override fundamental rights, and does not bar reforms of traditional religious practices. Sharia law may permit the stoning to death of a woman for adultery, but our secular laws ban that. Sharia law may call for the amputation of fingers or hand of a thief, but not our secular laws. Sharia law may prohibit interest on loans, but Muslims giving or taking loans are subject to laws on interest payments.
Now, religious minorities have been allowed to continue with traditional personal laws on matters like marriage and inheritance. Jawaharlal Nehru had the courage to amend Hindu personal law, outlawing polygamy and providing female rights to inherit property, divorce, and remarry. Alas, he funked similar reforms for Muslims, leaving Muslim women as oppressed and subjugated as ever. A Directive Principle of the Constitution says the state shall endeavour to secure for citizens a uniform civil code throughout India. This has never been implemented. Muslim conservatives are dead opposed. Religious objections apart, they say a civil code will become a form of Hindu oppression. Some enlightened Muslims have urged modernization of Islamic personal law. But secular political parties know that conservatives control the Muslim vote, and woo them by saying Muslims themselves must take the initiative on reforms. In effect, secular parties have thrown Muslim women to the wolves in search of votes.
Oral triple talaq permits a man to utter three times that he is divorcing his wife, and she is at the mercy of his whims. In our travels through India, my late wife Shahnaz often spoke to Muslim women, who invariably said that one of the greatest injustices they faced was the ever-present threat of triple talaq. The same fears are expressed by Shayara Bano in her Supreme Court petition. “They (women) have their hands tied while the guillotine of divorce dangles perpetually ready to drop at the whims of their husbands who enjoy undisputed power.”
Women constitute half the Muslim population, but have no voice because of male subjugation. Politicians who say Muslims don’t want to reform personal laws are thinking only of male Muslims, not female Muslims. When oppressive Muslim laws keep women under the thumbs of men, they cannot express their true wants and have to follow male orders. Conservative Muslims have historically discouraged female education, keeping women disempowered and unable to strike out on their own.
If a referendum with secret voting is held among Muslim women, they will surely opt to abolish triple talaq and polygamy. But they are not given the chance. So they remain disempowered and subjugated,with the shameful complicity of secular parties claiming to represent universal rights. The 2012 Committee on the Status of Women has made gender recommendations covering all religions. It seeks to ban triple talaq and polygamy. It seeks stronger provisions for maintenance payments to women and children (these can currently be cut off if a divorcee is “unchaste”). The Supreme Court should heed the report.
Forget the propaganda that a common civil code will mean Hindu oppression. Goa is the only state that disallows personal laws of all religions. It has a uniform civil code — with a few exceptions not relevant to Muslims — based on Portuguese colonial laws. Goa’s mullahs sought to extend Muslim personal law to Goa after liberation from Portuguese rule, but happily were foiled by the Goa Muslim Women’s Associations and Muslim youth activists. Muslims account for 8.3% of Goa’s population, and are a prosperous community. The civil code has not oppressed Goan Muslims or forcibly Hinduised them.
Any fear that a uniform civil code will mean Hindu oppression of Muslims will be exposed as groundless if India simply follows Goa’s example. The Supreme Court should point all political parties in Goa’s direction.
All India Muslim Personal Law Board
Changing stance
Mohammed Wajihuddin, `Under scrutiny, AIMPLB changing stand', May 19, 2017: The Times of India
In 2005, Board Rejected Proposal For Talaq Right To Women, Says Woman Member
A female member of the All India Muslim Personal Law Board has claimed that two decades back she had suggested a provision in the nikahnama (marriage contract) giving women a right to pronounce talaq, but the proposal was shot down by her co-panelists.
Mumbai-based Uzma Naheed, an AIMPLB member for years, has revealed the Board's past stonewalling of a crucial reform, days after it submitted to the Supreme Court that it was ready to include such a clause in the nikahnama for a talaq-e-tafweez, or “delegated divorce“, to give women a right to pronounce talaq in all forms.
Naheed, granddaughter of AIMPLB's founding president Maulana Qari Tayyeb, said the Board snubbed her in 2005 when the proposal came up for a discussion. Now faced with legal scrutiny of its position, the AIMPLB appears to be reversing its position. In its submissions to the SC this week, the Board said: “Women can also negotiate in the nikahnama and include provisions therein consistent with Islamic law to contractually stipulate that her husband does not resort to triple talaq, she has the right to pronounce triple talaq in all forms, and ask for a very high meher (alimony) in case of talaq and impose such other conditions as are available to her in order to protect her dignity .“
Naheed said she had said “almost the same thing“ in the nikahnama draft that she presented to the Board in 1994 along with other provisions, but these did not find place in the model nikahnama the Board eventually released in 2005 at its session in Bhopal. Director of the Mumbai-based Iqra Education Foundation, Naheed's great, great grandfather Maulana Qasim Nanautvi was among the founders of the famous seminary Darul Uloom Deoband.
She said it was after months of research and consultations with scholars that she prepared a draft which included progressive provisions like giving women the right to pronounce talaq and the Quranic method of talaq which invalidates triple talaq or instant divorce.
Her draft also suggested that a man should not be allowed to marry another woman without the permission of his first wife.While the Board accepted many other provisions from the nikahnama Naheed presented, it did not include the three crucial reform measures on talaq.
Interestingly , the All India Muslim Majlis-e-Mushawarat, an umbrella body of 14 Muslim organisations, too rapped the Board in its letter of October 4, 2016 to the Board chief for failing to include “delegated divorce“ in its nikahnama though it mentioned in its affidavit submitted to the SC in September 2016.
Incidence of divorce among Muslims
Lower rate than among Hindus other religious communities
AIMPLB Cites `Data' From 30 Dists In India
Muslims have a lower rate of divorce compared to other religious communities, including Hindus, the All India Muslim Personal Law Board (AIMPLB) has claimed in response to a petition by R S S-affiliated Muslim body Muslim Rashtriya Manch (MRM) against the practice of triple talaq.
AIMPLB made this claim citing a report based on RTI replies, family courts, Darul Qaza (Shariat courts) and independent studies from 30 districts.This report was unveiled by AIMPLB's women's wing chief Asma Zohra .
Citing divorce data collected from a period between 2011 and 2016, Zohra said, “Hindus constitute 56.21% of the total population in Kozhikode, while Muslims and Christians constitute 39.24% and 4.26% respectively as per the Census of India 2011report revealed in 2015. While the family court in Kozhikode says that number of dowry and divorce cases under the Hindu Marriage Act was 3,700. There were 398 cases under Christian Divorce Act and 487 under Muslim Marriage Act.“
“If you spent years dissolving a marriage, then chances of rehabilitating become almost difficult. Triple talaq is more secure for women seeking divorce as it involves several rounds of negotiations.It is in the eye of the storm because it is related to Islam,“ said Farooqui, who claimed that Muslims also have least number of separated couples which, she said, is the “worst form of any relationship“.
The central government has challenged the validity of triple talaq in the Supreme Court stating the practice to be against gender justice and spirit of the Constitution. AIMPLB, contesting the case in favour of triple talaq, will submit the report in the court to counter the argument that Muslims have highest number of divorce in the country due to the practice of triple talaq.
Legislation
2019/ Muslim Women (Protection of Rights on Marriage)
July 31, 2019: The Times of India
In big win, govt swings RS vote to clear triple talaq bill
NDA Helped By BJD Support And JD(U), ADMK, TRS Skipping Count
New Delhi:
Parliament marked a historic moment when the Rajya Sabha passed the much-debated and politically contentious triple talaq bill that makes the Muslim practice of instant divorce punishable as the government comfortably staved off the opposition challenge by 99-84 votes.
The passage of the Muslim Women (Protection of Rights on Marriage) Bill will make pronouncement of instant oral talaq or talaq-e-biddat void and illegal and criminalise it as a cognizable offence punishable with up to three years in jail. The bill was passed in Lok Sabha last week.
The Modi government won the day with the help of walkouts and absence of members of non-NDA ranks during voting. While Biju Janata Dal (BJD) voted in NDA’s support, there seemed to be a palpable lack of mobilisation in the opposition ranks. Coming on the heels of the amendments to the RTI Act, the passage of a bill that has marked the “secular” faultline in politics was much more significant as it ended two years of trenchant resistance.
When Rajya Sabha chairman Venkaiah Naidu called for a division, AIADMK, JD(U), BSP and TRS were not present in the House. There were absentees from Congress, Samajwadi Party, TDP, YSRCP and RJD benches as well which more than made up for the fewer absentees in NDA ranks.
The House had an effective strength of 240 after Congress MP Sanjay Sinh quit on Tuesday morning, another incremental blow to the party’s spirits. The votes polled added up to 183 with as many as 57 MPs not voting — a clear indicator that the opposition had failed to make it a do-or-die effort. Even in a full House, NDA is just a shade short of majority with BJD’s decision to support bills tilting the scales. There were five absentees in Congress and two in the BJP ranks. NCP bigwigs Sharad Pawar and Praful Patel did not attend.
The bill’s passage means the NDA has laid to rest its troubles in the Upper House.
4 features of the Act to know
A Subramani, August 1, 2019: The Times of India
Four features of triple talaq law that everyone concerned must know
CHENNAI: So, now, triple talaq is a punishable criminal offence. The central law came into effect on Wednesday, with the Union ministry of law and justice notifying it after the Presidential assent. From arrest and bail to custody of children, the law is heavily loaded in favour of Muslim women who ‘suffer’ talaq. There are at least four salient features in the law that a Muslim man or woman concerned should be aware of.
One : Since it is a cognizable offence carrying imprisonment up to three years, arrest of the man, who pronounces talaq, is imminent. In case he moves court for release on bail, the magistrate cannot take a decision after hearing merely the jurisdictional police.
Section 7(c) of The Muslim Women (Protection of Rights on Marriage) Act, 2019 clearly mentions that the magistrate should hear the ‘married Muslim woman upon whom talaq is pronounced.’ He shall grant bail only if he is satisfied that there are ‘reasonable grounds’ to grant the husband bail.
While in every IPC case the complainant has a right to participate in bail and trial proceedings as an intervener by filing a separate petition (besides the one filed by the investigating police), when it comes to in this talaq law, hearing the Muslim wife is a mandatory requirement for a court hearing the bail plea of the husband.
Two: The talaq offence is a compoundable one, which means the complainant-wife has powers under the law to drop her charges and let the husband go on her terms. Section 7(b) of the Act says the case could be closed at the instance of the wife. “An offence punishable under this Act shall be compoundable at the instance of the married Muslim woman upon whom talaq is pronounced,” the Act said. It, however, leaves the final decision to the magistrate who can lay down requisite terms and conditions.
Three: The Muslim woman is entitled to the custody of the minor children in the event of pronouncement of talaq by her husband, the Act says adding that she is entitled to claim subsistence allowance for her as well as her dependent children. The quantum, of course, will be decided by the court hearing the case. While she gets the automatic custody of minor children, she is entitled to claim subsistence allowance for all her ‘dependent children’, and not just the minor children alone.
Four: Perhaps to make things easy for the married Muslim woman who suffers talaq, the Act says the magistrate in the area where the woman lives will have jurisdiction to hear the case. In most matrimonial disputes, a court’s location often has big impact on the result, as women litigants would find it difficult to pursue the litigation if court is not in the vicinity of her residence.
Maintenance for Muslim wife
HC, 2018: Civil court can grant maintenance
Rosy Sequeira, HC: Civil court can grant Muslim wife maintenance, August 4, 2018: The Times of India
The Bombay high court has ruled that in divorce proceedings under the Dissolution of Muslim Marriages Act, 1939, a civil court can grant maintenance, mehr and a share in matrimonial property to a Muslim woman.
Justice Shalini Phansalkar-Joshi upheld a civil court decision though the 1939 Act does not specifically provide for these reliefs. “Merely because the Dissolution of Muslim Marriages Act, 1939, does not mention that the court has the jurisdiction or power to grant such relief, it cannot be said the court does not have jurisdiction to grant it, if it is incidental, claimed and the court finds it necessary to grant the same,” she said in her verdict on Thursday.
Dismissing the husband’s appeal, she said the court of law has to do “substantive justice” and “not be misled by technicalities”.
‘Court can grant relief to help maintain rights’
The key factor, the judge said, is that law expects all disputes should be decided in one forum to avoid multiplicity of proceedings. “The right of maintenance and right in matrimonial property are consequences of marriage or its dissolution. Those reliefs are an integral part of the decree of dissolution of marriage,” said Justice Phansalkar-Joshi.
The Thane civil court dissolved the marriage of a woman on her plea in 2011 under the 1939 law and directed payment of mehr, maintenance for two minor children and a 50% share in their jointly owned flat. Her husband’s appeal was dismissed by the district court, after which he moved the HC.
The husband contended maintenance, mehr and share in matrimonial property cannot be granted under the 1939 act. His advocate Javeed Hussein argued the act is silent on the rights of married Muslim women towards such relief, although they may have those rights under other acts.
But the judge agreed with the argument of the wife’s advocates, Saeed Akhtar and Rehan Ansari, who cited a Bombay HC judgment, to state if relief is claimed under a wrong provision, it is within the power of the civil court to grant relief disregarding the “nomenclature” to ensure the rights of the party are not lost.
HC, 2022: divorced Muslim women entitled to maintenance till remarriage, death
Rajesh Kumar Pandey, January 6, 2023: The Times of India
PRAYAGRAJ: The Allahabad high court has held that a divorced Muslim woman is entitled to get maintenance from her former husband for the whole life unless she gets married for a second time.
Allowing an appeal filed by one Zahid Khatoon, a division bench comprising Justice Surya Prakash Kesarwani and Justice Mohammad Azhar Husain Idrisi set aside the judgment passed by principal judge, family court, Ghazipur, dated September 15, 2022 whereby he had directed that the appellant (Zahid) is entitled for maintenance only for the period of 'iddat' i.e. three months and 13 days from the date of divorce.
While setting aside the judgment of court below, the high court observed, “From the facts and legal position, we have no hesitation to hold that the principal judge, family court, Ghazipur has committed a manifest error of law to hold that the appellant is entitled for maintenance only for the period of iddat. The court below has misread and misunderstood the judgment of supreme court in the case of Danial Latifi and another Vs Union of India (2001), which provides that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well. Such a reasonable and fair provision (maintenance), which extends beyond the iddat period must be made by the husband within the iddat period.”
Giving this judgment, the high court remitted the matter back to the competent court i.e. concerned magistrate of Ghazipur to decide the case for determining the amount of maintenance and return of properties to the appellant by the husband in accordance with law, positively within three months without granting any unnecessary adjournment to either of the parties.
In its judgment dated December 20, the HC also directed that for a period of three months or till the aforesaid case is decided, whichever is earlier, the respondent husband should pay to the appellant herein a sum of Rs 5000/ per month before the 10th day of each month towards interim maintenance.
The appellant – Zahida Khatoon was married to the respondent – Narul Haque on May 21, 1989 as per Muslim rites and ritual. Though at the time of marriage, the husband was not employed but later he joined the service of the postal department as postal assistant. He gave divorce to the appellant on June 28, 2000 and thereafter he married another Muslim woman in 2002.
However, he neither paid Mehr nor any maintenance amount, nor returned the articles belonging to the applicant/appellant, therefore, the applicant/appellant filed a case for maintenance and others on September 10, 2002 under 3 of the muslim women (protection of rights on divorce) Act 1986 before the concerned court at district court at Ghazipur.
A Mehr is the obligation, in the form of money or possessions paid by the groom, to the bride at the time of Muslim marriage.
Women’s divorce rights
1972, 2021: Kerala HC
April 15, 2021: The Times of India
HC restores Muslim women’s divorce rights
Kochi:
Overruling a 1972 judgment, the Kerala high court has restored the rights of Muslim women for divorce without resorting to judicial proceedings.
A division bench of the high court pronounced the judgment in a bunch of cases that arose out of different proceedings before the family courts seeking varied relief. Noting that the Holy Quran recognises the right to divorce equally for both men and women, the court observed that the dilemma of Muslim women, particularly in the state of Kerala, came to the fore when a single-judge bench in the “K C Moyin versus Nafeesa and Others” case negated the right of Muslim women to invoke extrajudicial divorce in the light of the Dissolution of Muslim Marriages Act, 1939. PTI
Act restricts Muslim women on divorce: HC
The court had then held that under no circumstances can a Muslim marriage be dissolved at the instance of the wife, except in accordance with the provisions of the Act. In its judgment, the division bench of Justices A Muhamed Mustaque and C S Dias analysed four major forms of dissolution of marriages as recognised under Islamic law and protected under the Shariat Act at the instance of the wife — talaq-e-tafwiz, khula, mubara’at and faskh.
“On an overall analysis of the scheme of the Shariat Act as well as the Dissolution of Muslim Marriages Act, we are of the considered view that the Dissolution of Muslim Marriages Act restricts Muslim women to annul their marriage invoking faskh except through the intervention of the court,” the HC said.
“All other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to Muslim women. We hold that the law declared in K C Moyin’s case (supra) is not good law,” the court said in its judgment on April 9. The bench said there is no difficulty for the family court to endorse an extra-judicial divorce to declare the matrimonial status of a person. PTI
2022: Kerala HC and the AIMPLB
Nov 6, 2022: The Times of India
Lucknow : The All India Muslim Personal Law Board (AIMPLB) has taken exception to a Kerala high court order earlier this week that a Muslim woman has the right to terminate her nikah (marriage) herself and does not necessarily need her husband’s consent.
AIMPLBgeneral secretary Maulana Khalid Saifullah Rehmani said in a statement that the HC in the particular case did not interpret the provisions of the Sharia but “instead tried to legislate over the same, which was unacceptable to the board”. Rehmani said Islam provided for only four talaq (divorce) options. One is triple talaq where the husband has the right to pronounce divorce. The second is khula where a divorce is usually moved by the wife and comes into force after the husband acknowledges.
The third is talaq-e-tafweez (delegated divorce) where the prospective wife has it mentioned in the nikahnama (marriage contract) that she will be authorised for talaq without the consent of her husband in case he treats her inhumanely and/ or subjects her to mental and physical torture. The fourth option is before a qazi/court, Rehmani said.
“There is no other manner of talaq explained in the Sharia and theKerala HC has exceeded its brief of interpreting the divorce provisions in the light of Islamic jurisprudence,” Rehmani said.
The AIMPLB’s reaction comes in wake of the HC dismissing a review petition by a husband challenging the divorce granted to his wife under the Dissolution of Muslim Marriages Act, 1939.
A division bench of Justices A Muhamed Mustaque and CD Dias held that it was the right of a Muslim wife to terminate the marriage and said this was in accordance with the Quran and could not be influenced by her husband’s decision to accept or decline the move. The HC further said it shall not surrender to the opinions of the “Islamic clergy who have no legal training on the point of law”. “No doubt, in matters related to beliefs and practices, their opinion matters to the court and the court should have deference for their views,” the HC observed.
The petitioner-husband had contended that although a Muslim woman had the right to demand divorce, she had no absolute right to pronounce “khula” — unlike the right of her counterpart to pronounce “talaq” — and it was subject to the acceptance or will of her husband. TNN
Muslim women must go to court to get divorce: HC, 2023
Suresh Kumar, February 1, 2023: The Times of India
CHENNAI: Shariat councils are neither courts nor arbitrators of disputes authorised to rule on annulment of marriage, the Madras high court said Tuesday while advising Muslim women seeking legally valid “Khula (divorce)” to approach only family courts.
“While it is open for a Muslim woman to exercise her inalienable rights to dissolve the marriage by ‘Khula’, as recognised under the Muslim Personal Law (Shariat) Application Act, it can be done only by approaching a family court,” Justice C Saravanan said, quashing a Khula certificate issued by a shariat council in 2017.
The judge directed the wife of the petitioner to approach the Tamil Nadu Legal Services Authority or a family court for a legal dissolution of her marriage by Khula. A certificate of annulment of marriage even under traditional law cannot be issued by “a self-declared body consisting of a few members of Jamath”, Justice Saravanan said.
In his petition, the husband had argued that “extra-judicial decrees such as a fatwa or a Khula certificate” had no legal sanction and could not be enforced by any individual or “private” entity.
Opposing the plea, the local shariat council contended that the Kerala high court had upheld the practice while hearing a similar case and, hence, the husband’s petition wasn’t maintainable.
Justice Saravanan rejected the contention, saying that the Kerala high court’s judgment “upheld only the Muslim woman’s right to unilateral divorce through Khula, but has not endorsed the involvement of private bodies like the shariat council”.
“Private bodies such as the shariat council cannot pronounce or certify dissolution of marriage by Khula,” he ruled.
Only family courts are empowered under Section 7(1)(b) of the Family Courts Act, the Dissolution of Muslim Marriages Act and the Muslim Personal Law (Shariat) to dissolve marriages, the court said.
HC, 2024: Devos Muslim woman entitled to maintenance even if she remarries
Rosy Sequeira, January 7, 2024: The Times of India
MUMBAI: The Bombay high court has held that a divorced Muslim woman is entitled to receive maintenance that was due to her from her former husband under the Muslim Women (Protection of Rights on Divorce) Act (MWPA), 1986, even if she had remarried.
"The essence of the Act is that a divorced woman is entitled to a reasonable and fair provision and maintenance regardless of her remarriage.
The fact of divorce between the husband and wife is in itself sufficient for the wife to claim maintenance under section 3 (1) (a). Such entitlement... is crystallised on the date of divorce...," said Justice Rajesh Patil in his January 2 verdict.He dismissed the husband's challenge to two orders to pay his ex-wife lump sum maintenance. The couple married in February 2005, and a daughter was born in December 2005. The husband went abroad for work. In June 2007, the wife and their daughter went to live with her parents. In April 2008, the husband divorced her by registered post. She filed for maintenance under MWPA for herself and their daughter. In August 2014, the Chiplun magistrate granted her Rs 4.3 lakh maintenance. In May 2017, Khed sessions court enhanced it to Rs 9 lakh.
Justice Patil was told the wife remarried in April 2018, and got divorced in October 2018. The husband's advocates Shaheen Kapadia and Vrushali Maindad said he was not liable to pay her maintenance because she had remarried. Also, she was entitled to the amount only till she remarried. Justice Patil said the protection referred to in MWPA is "unconditional" and nowhere does the Act "intend to limit the protection that is due to the former wife on the ground of remarriage". He agreed with the wife's advocate Saurabh Butala that section 3 does not use the word ‘remarry'. "The Act seeks to prevent the destitution of Muslim women and to ensure their right to lead a normal life even after divorce. Hence, the legislative intent of the Act is clear. It is to protect 'all' divorced Muslim women and safeguard their rights," explained Justice Patil.
He cited the Supreme Court's 2001 judgement that maintenance should be paid within three months from divorce period. He noted MWPA has no provision to enhance maintenance amount once granted under section 3. "On the date of passing of impugned order, the amount payable by husband got crystallised, therefore, even in future, if the divorced wife remarries, it will not make any difference if the amount is payable in lump sum," said Justice Patil, concluding that the sum of Rs 9 lakh is "fair and reasonable”.
B: After the 2019 Muslim Women (Protection of Rights of Marriage) Act
The Act in brief
Parliament enacted this law pursuant to the Supreme Court decision Shayara Bano v. Union of India. Section 3 of the Act bans and voids talaq-e-biddat declarations , while Section 4 stipulates imprisonment of up to three years along with fine for a Muslim man who pronounces talaq. Section 7 of the Act also declares the offence of pronouncing Talaq as a cognizable, non-bailable, and non-compoundable offence. The Act provides additional protections to Muslim women upon whom talaq is pronounced in Sections 5 and 6, including a subsistence allowance from their husband and custody of their children (as determined by the magistrate) respectively.
AIMPLB challenges in the SC the law criminalising instant triple talaq
SNS Web, Oct 22, 2019: The Times of India
The plea has challenged the Constitutional validity of the Act on the ground that it is manifestly arbitrary and offends Articles 14, 15, 20 and 21 of the Constitution and makes unwarranted/wrongful interference in the Muslim Personal Law as applicable to Hanafi Muslims.
The All India Muslim Personal Law Board (AIMPLB) filed a plea in the Supreme Court on Monday challenging the law criminalising instant triple talaq. The Muslim Women (Protection of Rights on Marriage) Act, 2019 makes talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband void and illegal.
It makes it illegal to pronounce talaq three times in spoken, written or through SMS or WhatsApp or any other electronic chat in one sitting. Any Muslim husband who pronounces the illegal form of talaq upon his wife is to be punished with imprisonment for a term which may extend to three years, and also be liable to fine, it says.
The plea by AIMPLB and Kamal Faruqui has challenged the Constitutional validity of the Act on the ground that it is manifestly arbitrary and offends Articles 14, 15, 20 and 21 of the Constitution and makes unwarranted/wrongful interference in the Muslim Personal Law as applicable to Hanafi Muslims.
“The impugned Act is a criminal statute having adverse impact on the life and personal liberty of those on whom penal consequences are to be visited. It is the elementary principle of law that any act or omission which is dealt with penal consequences should be defined with accuracy and precision.”
“A Muslim husband whose act or omission may be visited with penal consequences must have fair notice of ingredients of act or omission that is declared criminal so that such person can organize his affairs in such a way to avoid any conflict with law,” the plea said.
Since pronouncement of Triple Talaq in one sitting has already been declared to be unconstitutional and its practice set aside, such utterance has no legal/civil consequence, it said. “Consequently, despite such utterances, marriage survives. Therefore, it was totally redundant and irrational to declare statutorily the practice of talaq-e-biddat as void.”
“Secondly, section 3 of the Impugned Act also suffers from internal contradiction because if any act which is declared void has no existence in the eyes of law and it is redundant and contradictory to declare non-existent act illegal. The section therefore, suffers from manifest arbitrariness as it makes provision of law which is totally unnecessary,” the plea said. The criminalisation of Triple Talaq was opposed by Asaduddin Owaisi, MP from the Opposition All India Majlis-e-Ittehadul Muslimeen party, who said the new law was another attack on Muslim identity under the ruling BJP, which has been in power since 2014.
In 2017, the top court had struck down the practice of instant triple talaq calling it unconstitutional. The Act was passed by Parliament on July 30 this year. The top court had earlier agreed to examine the validity of the newly enacted law on a batch a of petitions which sought to declare the Act as unconstitutional.
The results, by 2021 Aug
Sudipta Sengupta and Syed Akbar, August 17, 2021: The Times of India
The criminalisation of instant divorce or triple talaq has unwittingly led to a spurt in `khula’ cases in Telangana and Andhra Pradesh. Fearing jail term if they invoke instant divorce, many men, who want to divorce their wives, are forcing them to seek `khula’.
Since khula is granted at the woman’s request, the man cannot be held responsible for the instant divorce. Muslim religious scholars and qazis, who are authorised to solemnise marriages and grant divorce, blame the Muslim Women (Protection of Rights on Marriage) Act, 2019 for the jump in khulas.
Ayesha* was forced to settle for a khula when — after three years of mental and physical torture — she finally decided to raise her voice last year. This was when her unemployed husband, who had claimed to be a driver when they got married, insisted on getting a DNA test done for their just-born daughter. “He accused me of having an affair with someone and the child not being his. When I resisted, he and his mother beat me. I sought a divorce, but he refused. I had not no choice but to take khula for the safety of my child,” the 25-year-old said. She does odd jobs from her house in Golconda now, to make some money.
That the number of ‘khula’ cases has increased is clear from the recent warning issued by the Telangana Waqf Board to qazis. Board chairman Mohammad Saleem warned qazis not to hurry through the khula requests. “Qazis should verify the veracity of the request and make it doubly sure that it is not an altered case of triple talaq before issuing khula certificates,” he says.
The Waqf boards in Telangana and Andhra Pradesh do maintain records of divorce as they are the authorised bodies to issue divorce certificates for Muslims. But the records are not up-to-date as many do not approach the board to get the certificate. They simply take the divorce forms from the local qazi. However, waqf officials estimate that the ‘khula’ cases have gone up in the past two years.
“Of course, there may have been a drop in the cases of instant talaq, but the problem remains unsolved. The new legislation has further cornered Muslim women, particularly hailing from lower strata of society. Instead of a man pronouncing instant talaq, he is forcing his wife to take khula. Either way, the woman is the sufferer,” says Maulana Mohammad Hussamuddin Sani Aqil.
Mufti Mastan Ali, a senior scholar of Islamic jurisprudence says: “There is no let-up in the cases of instant talaq. It has only changed its form to khula. Muslim women continue to suffer as before the passing of the new legislation.”
Post triple talaq law, women choosing remarriage over court battles
It’s been about three years now. But the memory of the day her husband walked out on her, as she lay in bed jaundice-stricken – her young child by her side – continues to haunt Rehana*. On his way out, he said talaq thrice.
“I was so sick that I didn't even have the strength to get up and stop him. I just lay there and cried,” says the 37-year-old from Hussaini Alam, a densely populated pocket in Hyderabad’s Old City. But with no job at hand — no hope of maintenance — and two mouths to feed, Rehana couldn’t let the sorrow linger on for too long. She returned to being a domestic help.
While people around her had prompted Rehana to take the legal route, she refused. The monetary commitment — of first filing a police complaint and then pursuing it in court — was too much to handle. She is open to remarrying, though. In fact, activists working in this area say that multiple cases of triple talaq go unrecorded as women do not report them for lack of funds and support.
“My parents are extremely poor, and I can’t burden them further. Also, what I earn now [Rs 7,000 a month] is too little and most of it goes towards rent and repaying moneylenders -- my auto-rickshaw driver husband left me with a debt of over Rs 50,000,” says the mother of a six-year-old.
Shariah Panchayats: The new route to reconciliation
More Muslims are now looking at Shariah panchayats to get their personal-law-related issues resolved. The Muslim Women (Protection of Rights on Marriage) Act, 2019 and the talk of uniform civil code has led to the mushrooming of Shariah panchayats across Telangana and Andhra Pradesh.
Run by local Muslim elders, they follow the provisions of the Arbitration and Conciliation Act, 1996 to resolve issues related to Muslim personal law including distribution of ancestral property, reconciliation between estranged couples and divorce cases. There are also Shariah councils for women run by women religious scholars.
“We resolve about 100 cases every month. Most of the parties in dispute return home satisfied. Cases related to marital discord and divorce form about 2% of the total cases. We do not enforce any rule. The decision to accept or reject our arbitration purely rests on the parties at dispute. But, in 90% of the cases, people honour our decisions,” says Mastan Ali, who runs two such Shariah councils in Hyderabad.
Jamiat Ulema, Telangana and AP, general secretary Hafez Peer Khaleeq Ahmed Saber told TOI the demand for Shariah panchayats has increased in the past few years. “We do not take up cases pending in courts or where an FIR is registered with the police. Such cases are resolved by courts. We function on the provisions of the Arbitration Act and complement the services of regular courts,” he says.
Social activist Syed Fazil Hussain Parvez says more Muslims are looking towards Shariah panchayats as it involves no costs. “After the triple talaq legislation was enacted, many are preferring such Islamic arbitration bodies. There is at least 20-30% increase in such bodies in the past two years,” he adds.
Jamiat Ulema, Telangana and AP, general secretary Hafez Peer Khaleeq Ahmed Saber told TOI the demand for Shariah Panchayats has increased in the last few years. “We do not take up cases pending in courts or where an FIR is registered with the police. Such cases are resolved by courts. We function on the provisions of the Arbitration Act and complement the services of regular courts,” he said.
Social activist Syed Fazil Hussain Parvez said more Muslims are looking towards Shariah Panchayats as it involves no costs. “After the triple talaq legislation was enacted, many are preferring such Islamic arbitration bodies. There is at least 20 to 30 per cent increase in such bodies in the last two years,” he added. Mohammad Saleem, chairman of the Telangana State Waqf Board, says that aid is being extended wherever possible. “We are disbursing Rs 5 lakh to Rs 6 lakh every month. So far, 360 such women who have got court orders, have been supported. Depending on the order we pay Rs 5,000 to Rs 10,000 per month,” he said, though admitting to abandonment being the new phenomenon in Muslim society.
Deserted, women fight for allowance
The rise in cases of abandonment post the Muslim Women (Protection of Rights on Marriage) Act, 2019, has pushed Muslim women into an acute financial crisis. With no legal protection many of these deserted brides are found pleading with their husbands for a monthly allowance; usually to raise their children.
While some have been lucky to have got a maintenance amount – between Rs 5,000 and Rs 15,000 a month – many others are still fighting the battle, say social activists.
Members of Shaheen Women’s Resource and Welfare Association say they are flooded with cases of women fighting for maintenance – many of them with more than two children. They claim that the 2019 Act has failed to address this issue. “Most men aren’t scared of the law. They either completely deny any allowance or just pay Rs 2,000 or Rs 3,000 and walk away. Some even discontinue it after a few months. There’s nothing the women can do, considering the law doesn’t protect abandoned women,” says a volunteer.
See also
All India Muslim Personal Law Board
Muslim law and adoption: India
Muslim personal law, India: Divorce
Muslim personal law, India: Divorce (SC verdict, 2017: full text)
Muslim personal law: India (fatwas)
