The Proper Way of Divorce Prescribed by The Quran Remains Unaffected by The Triple Talaq Act
By
Tahir Mahmood
August 27,
2020
On August
21 three years ago, the Supreme Court pronounced its historic judgment in the
much celebrated Shayara Bano case relating to the heinous practice of the
so-called “triple talaq” prevalent among the country’s Muslim citizens. In his
judgment, the then Chief Justice J S Khehar said, “There can be no doubt, and
that is our definitive conclusion, that the position can be salvaged only by
legislation; unfortunately, the Union seeks at our hands what clearly falls in
its own”. The operative part of the split judgment had declared that, “In view
of the different opinions recorded, by a majority of 3:2 the practice of
talaq-e-bidat, triple talaq, is set aside.”
The
minority judgment in the case had advised the government to enact a
comprehensive divorce law for the Muslims on the lines of such laws in several
Arab and non-Arab Muslim countries — which the judgment had taken pains to
chronicle at length. Instead of bringing in such a law, the government of the
day, however, decided in its wisdom to pass a penal law abolishing the practice
of triple talaq and making it an offence.
The
proposed law was first enforced by two ordinances promulgated one after the
other and finally enacted as the Muslim Women (Rights on Marriage) Act, exactly
three weeks before the second anniversary of the apex court’s judgment. As the
Act completed the first year of its life on the last day of the last month, the
Union law minister happily tweeted: “This day will always be remembered as a
golden day in the Indian democracy for giving gender justice, dignity and
equality to Muslim women by ending the evil practice of triple talaq”.
The Act
uses the word talaq throughout its provisions but restricts its meaning by
defining the word as “Talaq-e-Biddat or any other similar form of talaq having
the effect of instantaneous and irrevocable divorce”. This definition covers
the so-called triple talaq — in which a husband says that he is giving “three
talaqs” to his wife, or repeats the word talaq thrice — as also what is known
in the traditional Muslim law as a “single irrevocable divorce” in which the
husband declares he cannot revoke the talaq he is pronouncing. These are the
forms of divorce which textbooks on Muslim law describe as practices “bad in
theology but good in law” — a funny proposition, indeed. A constitutionally
secular country is not bound to protect by law even what is “good in theology”
— of course, theology of any community. It is naive to expect it to legally
enforce what is admittedly “bad in theology” in a particular community’s
theology.
The Act
declares the so-called Talaq-e-Biddat to be “void and illegal” and also makes
it an offence punishable with imprisonment for a term up to three years and
fine. The offence is to be cognisable but compoundable. A person arrested for
the offence can be released on bail by the court after hearing the wife and
being satisfied that there are reasonable grounds for granting bail. The Act
also enables the court to order subsistence allowance for the wife and children
dependent on her, as also for placing minor children in her custody.
The
impression that the Act has repealed the Muslim law on divorce by husbands in
its entirety is not correct. Its provisions are restricted in their effect to Talaq-e-Biddat,
the two forms of which have been mentioned above. The proper way of divorce by
men as prescribed by the Quran and other authentic sources of Muslim law
remains unaffected by the Act. Nor does the Act affect in any sense the
provisions of Muslim law on divorce at the instance of women or by the spouses’
mutual consent.
Whether a
man has pronounced a talaq as per authentic Muslim law or in violation of its
precepts will be a matter to be proved by evidence. In the former case, the Act
will not apply. In the latter case it will, and should, apply with all its
vigour.
---
Tahir
Mahmood is former chairman of National Minorities Commission and member, Law
Commission of India
Original
Headline: Ending discriminatory practice of triple talaq was a much-needed
reform
Source: The Indian Express
URL: https://newageislam.com/islam-women-feminism/the-proper-way-divorce-prescribed/d/122734