Constitutional validity of triple talaq.



Co-authored by Eshanee Shukla and Gargi Whorra,

CASE COMMENTARY ON

A.S. Parveen Akthar

Versus.

The Union of India (UOI), represented by the Secretary to Government, Ministry of Law, Y. Md. Ismail Farook, The Station Director, All India Radio, Association for Women Assistance and Security (AWAS) rep. by its Secretary I. Abdul Bhai, Mrs. Bader Syed and Tamil Nadu Advocates Meelad Forum represented by its President A.S. Bibi John: “Is the judgment ‘truly’ bad in theology but good in law?”

 

SUMMARY OF FACTS:

The brief factual matrix of the case is as follows: A.S. Parveen Akhtar, the Petitioner above named was a Muslim woman who was married to Y. Md. Ismail Farook, the second Respondent on 06.02.1990. After the marriage, there were martial differences between the husband and the wife.

As per the Petitioner, her parents had been compelled to give dowry before the marriage. But in spite of the same, the second Respondent (the Petitioner’s husband) threatened to divorce the Petitioner, if she did not persuade her parents to give him a scooter as an additional dowry. Since the Petitioner’s parents were unable to provide for the additional dowry demand. Therefore, the Petitioner was thrown out of Respondent No.2’s home on 04.03.1991, and that she was forced to stay in a local ladies hostel. Further, the second respondent had told the Petitioner that he would permit her to live with him only if additional dowry is given to him by her parents.

Thereafter, the Petitioner on 01.05.1991 was intimated through her father that the second respondent had pronounced talaq in the presence of two witnesses in a single sitting in Talaq-ul-biddat form and a receipt of the notice was sent by the second respondent to the Petitioner’s father, attempts were made to persuade the second respondent to take back the Petitioner, but he declined to do so on the ground that the irrevocable talaq had already taken place.

 

WRIT PETITION FILED BY THE PETITIONER BEFORE THE HON’BLE HIGH COURT OF MADRAS AT CHENNAI:

 

Pursuant to the aforesaid events, the Petitioner preferred a writ petition no. 744 of 1992 before the Hon’ble High Court of Madras, for a declaration that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 in so far as it seeks to recognise and validate Talaaq-ul-Biddat or Talaaq-i-Badai form of divorce as void and unconstitutional as such form of talaq is not only repugnant to natural justice but also violative of fundamental rights guaranteed under Article 14, Article 15 and Article 21 of the Constitution of India. Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 reads as follows:

 

“Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law. marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”

Submission of the Petitioner before the Court:

The Petitioner submitted before the Court that Talaq-ul-biddat is not a mode recognised in the Quran, and that the Holy Book provides for reconsideration and reconciliation before recognising divorce as irrevocable. The Petitioner referred to Quran which says, “Any if you fear a breach between the two, appoint an arbiter from his people and an arbiter from her people. If they desire agreement, God will affect harmony between them.” She has also stated that due to lack of knowledge and understanding of the permissible forms of talaq and of the need for reconciliation and reconsideration before it could be regarded as irrevocable, this form of talaq has been widely used resulting in untold misery and harm to the divorced wife and the children of the marriage.

 

It was her further case that the Muslim Personal Law (Shariat) Application Act, 1937 , by providing for the application of Muslim Personal Law in matters relating to marriage where the parties are Muslims, conveyed a wrong impression that the law sanctions this sinful form of talaq which form, according to the petitioner is grossly injurious to the human rights of the married Muslim women and offends Articles 14, 15 and 21 of the Constitution. She has submitted that the assumptions and beliefs upon which such a form of divorce is recognised are factually false, scientifically untenable and contrary to the spirit and provisions of the Constitution. She has also stated that this form of divorce has been declared to be a spiritual offence in the Quran and giving recognition to that form interferes with the Muslim women’s right to profess and practice her religion, inasmuch as it unleashes a spiritual offence on her and is thus, violative of Article 25 of the Constitution.

Submission of the Respondents before the Court:

The Respondents opposed the prayer in the writ petition and submitted that this form of talaq, though sinful, had been recognised for a long period of time and that the Courts had in the earlier decisions held that this form of talaq though bad in theology, the same was good in law. It was also submitted that any modification of the Personal Law can only be made by statute and further that Personal Law cannot be regarded as being violative of any of the rights given in Part III of the Constitution.

Further, it was stated that Personal Laws fall outside the ambit of Article 13 of the Constitution, and therefore, the question of declaring any part of the Personal Law of any section of the population of this country as being void on account of inconsistency with the rights guaranteed under Part III of the Constitution, does not arise.

 

 

The Judgment:

After hearing both the parties, a division bench comprising of Hon’ble Mr. Justice R. Jayasimha Babu and Hon’ble Mr. Justice E. Padmanabhan, held that whatever may be the form of talaq, first and foremost it must be for a reasonable cause, and must be preceded by several attempts for reconciliation by arbitrators chosen from the families of each of the spouses. As per the Hon’ble Court, the grounds on which the petitioner has sought a declaration that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 in so far as it seeks to recognize and validate Talaaq-ul-Biddat or Talaaq-i-Badai form of divorce, as void and unconstitutional, are mainly that it does not provide for reconsideration and is not preceded by attempts at reconciliation. The Hon’ble Court held that the petitioner’s apprehension that notwithstanding absence of cause and no efforts having been made to reconcile the spouses, this form of talaq is valid and not going against the constitution of the country. The writ petition was accordingly dismissed.

CRITIQUE OF THE JUDGMENT:

We are of the strong opinion that this judgment of the Hon’ble High Court of Madras which has that held Talaq-ul-biddat to be valid, has not only resulted in atrocity on Muslim women but has also inflicted a great blow to the fundamental rights, which form the basic structure of the Constitution of India. This form of talaq is infested with the malady of inequality which goes against equality which is enshrined in Article 14 of the Indian Constitution. Talaq-ul-biddat distorts the fundamental right against any form of discrimination enshrined in Article 15 of the Indian Constitution. Lastly, digression from normal format of divorce, talaq-ul-biddat mars the essence of Article 21, the right to life and personal liberty.

In the instant case of Praveen Akhtar, the woman’s liberty to choose to live with man she was married was unilateral bestowed on the husband in the form of triple talaq. The wife never even had the personal liberty to give her consent whether or not she wanted this marriage to exist or not. Where do the arbitrators come into the picture when the husband in front of his entire family had already thrown her out and later divorced her? Will such a family act as arbitrators or mere supporters of the husband?

Talaq-i-Biddat in its true essence stands for innovated (or sinful) form of Divorce. It is defined as a divorce which is pronounced thrice in one sitting when the wife is in the state of purity (turh). According to the Hanafi, Imam Malik and Shafii when triple divorce is pronounced, the wife will become totally alienated from the husband and he cannot remarry her. She becomes haram (totally prohibited) for him. Neither can he take her back nor can he go for fresh nikah with her. Although the husband can go for nikah with her only after she marries another person and that person divorces her on account of marital conflict or she becomes a widow.

Ironically, according to the Holy Qur’an, divorce is not an arbitrary and whimsical thing. The method prescribed by the Qur’an for divorce is that one can give divorce twice only, i.e., on two different occasions and then either he has to keep the woman with kindness or leave her with benevolence. The Talaq-i-Biddat, as its name signifies, is the heretical or irregular mode of divorce, which was introduced in the second century of the Mahommedan era. It was then that the Omeyyada monarchs, finding that the checks imposed by the Prophet on the facility of repudiation interfered with the indulgence of their caprice, endeavoured to find an escape from the strictness of the law, and found in the pliability of the jurists a loophole to affect their purpose. As a matter of fact, the capricious and irregular exercise of the power of divorce which was in the beginning left to the husbands was strongly disapproved of by the Prophet. It is reported that when once news was brought to him that one of his disciples had divorced his wife, pronouncing the three talaqs at one and the same time, the Prophet stood up in anger on his carpet and declared that the man was making a plaything of the words of God, and made him take back his wife.

The most abominable aspect of triple talaq is its prima facie inequality for it does not bestow the right in the hands of woman as it does in case of the opposite sex. Strangely, the wife would need to go to a Darul Qaza and prove the atrocities committed by her husband in order to get a divorce. While, the husband can pronounce talaq on the wife as in when he wishes to, without any justification or logic. The man has power to break the marriage at even whimsical ground but the women have no sort of protection. Where is equality in this entire scenario?

Further, a woman after the pronouncement of talaq has to part with her ‘mehr’, which she gets along with her at pure whim of her husband. Due to this form of talaq a woman not only has to lose her mehr but also forgo her life after matrimony without any say thus triple talaq all in all is violative of Article 14.

Is it right to believe that a marriage which is entered by the will of both can be unilaterally destroyed. In fact, in the instant case of Praveen Akhtar, the inequality and arbitrariness clearly reflects in the fact that the woman was not even told directly by the husband about the talaq but was informed by her father. Thus how can this form of talaq be in line with the Right to Equality? Even commercial contracts cannot be broken in this manner; are human relationships so fragile and cheap?

Reliance is placed on Ahmedabad Women’s Action Group (AWAG) and others v. Union of India , a writ petition was filed before the Hon’ble Supreme Court to declare Muslim Personal Law, which enables a Muslim male to give unilateral talaq to his wife without her consent and without resort to judicial process of courts, as void, offending Articles 14 of the Constitution of India. Unfortunately, the said writ was dismissed by the Apex Court. The ironical part is that not only does the Court shy away from interfering in the personal law but they also shun their responsibility to rectify any constitutional problem arising in personal law. Courts have been put in place to enforce constitutional values. Their refusal to do so is an abdication of function.

It is relevant to note the approach of the Supreme Court in Danial Latifi v. Union of India . In interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court held that the Act would be unconstitutional if not interpreted to mean that women would get a reasonable and fair provision and maintenance.

The Supreme Court, in Zohara Khatoon v. Mohd. Ibrahim , had expressed its grave concern towards this arbitrary of talaq by observing as follows :- “There can be no doubt that under the Mahomedan law the commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognised by the law. A divorce given unilaterally by the husband is especially peculiar to Mahomedan law. In no other law has the husband got a unilateral right to divorce his wife by a simple declaration.” Thus, the unfortunate part is that even after recognising this fact, still the Supreme Court itself allows such open discrimination on the basis of the mere fact of being in a particular religion, a blatant violation of Article 15 of the Constitution of India.

The fact of the matter is that the source of such form of a cultural emotional abuse does not rest in the Quran but is the progeny of ancient and contemporary practices thus discriminating Muslim woman from other woman by taking away the rights and protections enjoyed by these women of other religion. Today Hindu women are coparcenaries, they have equal rights in inheritance as Hindu men then why such blatant discrimination when it comes to divorce and other related rights in case of a Muslim woman? Thus such form of Talaq is not only against Article 15 on the basis of religion and sex but also discriminates among women itself due to its inherent malady.

The discriminatory nature of the state is so blatantly obnoxious if one goes through the Indian Divorce Act, it is evident that there is no provision for Muslim women to get maintenance against women of any other religion nor was any provision added in its amendment in 2001. Furthermore in the case of Rahmat Ullah And Khatoon Nisa vs State Of U.P. And Ors it was held by the Hon’ble Court that under a valid marriage under the provisions of the Muslim Women’s (Protection of Rights and Divorce) Act 1986 she is not entitled to maintenance. Thus even today the fact that the still prevailing recognition of such divorce validates discrimination. There is a need for a decision from the Apex Court in this regard.

In a startling recent case of Nagma Bibi of Orissa, the deplorable condition of Muslim women gets reflected further. The woman in this case had been divorced by her husband in a drunken state. Next morning the husband realized he had committed a terrible mistake and wanted his wife back. She also wanted to go back but community leaders are preventing them from doing so. They forcibly sent her with her three children to her father’s house. It was suggested that Nagma Bibi will have to marry someone else and only upon being divorced by that person can she re-marry her husband. This practice is called Halala. The fact to be noted here that discrimination of Muslim women is being done by community leaders themselves on grounds of unislamic practices like Halala or triple Talaq which are not prescribed in the Quran.

In Mumbai, since the jurisdiction for minorities lies only in the hands of the High Court unlike Hindu marriages or marriages under Special Marriage Act , it further adds fuel to the fire of discrimination by making the procedure very expensive forcing the aggrieved women to turn towards Qazis and Maulvis for settlements as provided by unjust customs. If even today we see Muslims as minorities why is their hesitation in trying to uplift them? Further discrimination can be seen if a Muslim woman seeks divorce she has to file under the Dissolution of Muslim Marriage Act in the High Court. The irony is that if a woman does so her right to maintenance under S. 125 Cr.PC is forfeited. Even her right to relief from a marriage where she might be the sufferer comes at an additional price and further suffering.

Muslim women suffer on many accounts, not only because the husband can give divorce on whimsical grounds but also that when she wanted to go back to him he hid behind the facade of the acknowledged fact that such a divorce is irrevocable. She suffered from such unilateral discrimination since even the laws, the Acts and the Courts of our country had made no provisions to prevent such blatant discrimination in a multi-religious country like ours. Where countries like Egypt, Iraq, Sudan etc. way back had made triple talaq as unrecognised and treat it as a revocable form of talaq why does a democracy like ours shy away to protect the Muslim women who are as much a part of India as anyone else and in this manner truly execute their duty of upholding the validity of the Constitution in its true spirit.

Lastly, digression from normal format of divorce, Talaq-ul-biddat mars the essence of Article 21, the right to life and personal liberty. This article though dealing with two simple grounds but the scope is extremely wide. The fact that the article deals with the most essential prerequisites, triple talaq which violates the spirit of these essentials mar’s the essence of this Article. Personal liberty is necessary for a healthy overall development of the units of society.

Not only Muslim personal law but even Section 2 of the Shariat Act 1937 which recognises talaq goes against the spirit of this Article by giving indefinite unilateral power in the hands of men. Thus they are directly giving a thrashing blow to the woman for they in no manner have the liberty to use such forms of divorce and free themselves from the clutches of a marriage staying in which would be suicidal. Rather their liberty is on the whim of their husband who in triple talaq does not even require consenting his wife before pronouncing it. Even if the language is clear and unambiguous even if that it could be reviewed and interpreted so as to keep pace the changing society Shariat came more than 70 years ago. Thus the since portions of the Act goes against Article 21 more practical interpretation should be given to this Act. Like in the case of Naz Foundation v. Union of India the Court gave an unpredictable judgement of legalising gay relationship between two consenting adults. Thus such liberal and practical interpretation should be given to cure this malady in personal law. Furthermore not only the woman but the man also suffers when such divorce is given in a state where his mental capabilities are not in his control or when he regrets his decision taken on the spur of the moment, since Talaq-ul-biddat is irrevocable the liberty to come back is taken away from both the of them.

In the case of Parveen Akhtar, the aggrieved woman got no relief in form of any financial maintenance, a woman whose entire life is finished in the simple reiterating of the word talaq for reasons often or not known to her what she gets in return is no mehr but money for maintenance only for three months of the iddat period. Section 3 (a) 1 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 states “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband”. How will such a woman revive her shattered life within three months with such meagre financial support. Thus how can the administration and the judiciary live with the fact that such blatant violation of fundamentals of life is being validated and practised with no one to object or even raise a finger.

CONCLUSION:

In Praveen Akhtar’s case not only the vehement form of the divorce is used to appease the whims of the husband. Irony remains that though the Court in innumerable instances have recognised triple talaqs discriminatory nature but since it is a sensitive issue courts majorly shy away. Thus how can this form of talaq be in line with the Right to Equality? Even commercial contracts cannot be broken in this manner; are human relationships so fragile and cheap?

Such injustice further emphasis on the dire need of Article 44 to become a reality in the form of uniform civil code. When there are Acts to protect the rights of all religions even minorities like Parsis who make a small population of only 60,000 why should the massive section of the Muslim population be deprived from equal laws and rights. In this 21st century everything is so advanced that in a recent case a man divorced his wife through Skype then why even today are we ardently following practices which act as a sword hanging on the neck of Muslim women only. For too long women have been discriminated on the ground of personal law, a tool used to bargain for their wants from politicians. When neither the Prophet nor the Quran distinguishes between men and women why the fate of Muslim women should be sealed by the hands of Muslim men alone.

Even in the instant case the woman had her hands tied while the sword of divorce could slit her throat any time at the whim of her husband. The tool of triple talaq gave her husband undisputed power. Such discrimination and inequality hoarsely expressed in the form of unilateral triple talaq is abominable when seen in light of the progressive times of the 21st century. Not only did the personal laws have any relief nor the fact that such mode of divorcing which was going against the law of the land, The Constitution still she had to beg for mercy without any relief.

No one can deny that there are significant rulings that should have a far-reaching impact, but unfortunately due to the submissive attitude of the legislature and the judiciary they hardly bring any change social norms within communities, they may thus remain as ornamental snippets in law journals.

It must be the courts prerogatives to reform Muslim matrimonial law taking into account the experiences and demands of women from the Muslim community. It should be codified and certain based on the most liberal interpretation of the Quran, the most beneficial provisions of Muslim personal laws. Moreover it should enshrine the progressive judgments by courts of law, situated within a larger framework of women’s human rights and fundamental rights guaranteed by the Indian Constitution.

 

Abstract

Not
at the conception of the religion but further down with its growth did the
malady of Talaq-ul-Biddat arise. But the most unfortunate aspect is that this
unilateral sword bestowed in the hands of the husband is released to sacrifice
the woman at his whim and this is recognised by law in the 21st
century India. Not only is this form of divorce against all scruples of
morality but inflicts severe blows to the spirit of womanhood. The instant case
enfolds all the grievances a woman would have as a victim of such injustice.
The article takes the instant case as a background to throw light on how such
form of abominable divorce vitiates three of the most prime fundamental rights
enshrined in the Constitution of India. Article 14 which speaks for equality
Article 15 which  speaks  against discrimination and Article 21 which
is about the Right of Life and Liberty 
are burnt to ashes with the courts including the Supreme Court, the
protector of the Constitution of India, till date has not declared this form of
Talaq void and unconstitutional. Till when will the facade of personal law be
able to shroud such blatant injustice. Irony remains that though the Court in
innumerable instances have recognised triple talaqs discriminatory nature but since it is a sensitive issue
courts majorly shy away. Thus how can this form of talaq be in line with the Right to Equality? Even commercial
contracts cannot be broken in this manner; are human relationships so fragile
and cheap? No one can deny that there are significant rulings that should have
a far-reaching impact, but unfortunately due to the submissive attitude of the
legislature and the judiciary they hardly bring any change social norms within
communities, they may thus remain as ornamental snippets in law journals. The
article thus attempts to question the Judiciaries attitude and to throw light
on the question whether this form of divorce and the judgment ‘truly’
bad in theology but good in law?

 

The case commentary is co-authored by Eshanee Shukla, 3th year student of Hidayatullah National Law University, Raipur and Gargi Whorra, 2nd year student of Hidayatullah National Law University, Raipur.
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