Muslim women’s rights to marriage, divorce, and inheritance have aided a number of Muslim women campaigners in their fight for equality. Personal laws in India, particularly Muslim personal law, have been a contentious political topic that has sparked widespread debate. Since the independence, it has served as a focal point for Muslim organisations.
Contractual Relationship
Under Muslim Law, Marriage is a contractual relationship between two parties. All the essentials that are required for a contract are present under Muslim Marriage. There is an offer, acceptance, consent, consideration, the capacity of parties, etc.
The purpose of such a form of marriage are:
- Legalising sexual intercourse.
- Procreation of children.
End of Marital Relationship
Divorce is the end of such a marital relationship, as under Muslim law there are two modes given for the dissolution of marriage 3:
- Divorce
- Talaq
In daily life, these two terms are alternatively used, but under Muslim law, if a person seeks divorce, he will be governed by the provisions of Dissolution of Muslim Marriage Act, 1939. Whereas, Talaq proceedings are governed by Muslim Personal Laws.
Void Marriage under Muslim Law
In this form three pronouncements are made in one sentence, or in three sentences, where pronouncement of the word ‘talaq’ thrice in one sitting by a man to his wife results in an instant and irrevocable divorce. The moment the pronouncement is made the marriage stands dissolved irrevocably.
The Islamic practice of Muslim men divorcing their wives instantly has been declared unconstitutional, void and illegal after decades of Muslim women campaigning about it. The Supreme Court took up the issue when seven victims and women’s group filed the petition against the same. Progressive Muslim women’s groups say Islamic religious authorities especially males have been resistant to give up men’s power to instantly leave their wives. India’s Muslim community is also generally poor and lack the basic education which activists say has made it more difficult for women to mount legal and social campaigns against this practice.
When it comes to Quran with reference to Triple Talaq, it is nowhere mentioned in Quran that Triple Talaq at a time will be considered three talaqs. In verses 229, 230 of the Holy Quran, it states that, Divorce for the reason of mutual incompatibility is allowed and in order to prevent erratic and fitful repeated separations and reunions, a limit of two divorces is prescribed Reunion after two divorces is permissible but, when divorce is pronounced for the third time, between the same parties, it becomes irreversible, until the woman marries some other man and he divorces her.
The word Marrataan (two times) in this verse means repeating the word talaq’ or to give divorce with the specification of number. They say that if the words talaq, talaq, talaq are pronounced or three talaqs is uttered then it is three talaqs. The fact, however, is that marrataan does not mean to repeat the word talaq but it means to give talaq on a second time.
In the case of A.S. Parveen Akhtar v. Union of India it was observed that the practice of Triple Talaq among the Muslims is illegal as per the Holy Quran and is considered sinful. Triple Talaq is nowhere mentioned in the Quran and this might be one of the reasons as to why this practice is banned in certain Islamic countries. The Quran gives equal rights to husband and wife to seek divorce and it does not even allow instant divorce by husbands.
Status Quo
A watershed moment in the history was witnessed when judiciary of India criminalized the practice of Talaq-ul-biddat (instant triple Talaq). In a renowned case of Shayara bano v. Union of India and Ors. with Majority opinion of Justice Rohinton Nariman and U.U. Lalit J. and a Concurring opinion of Kurian Joseph J. and a Dissenting opinion of CJI J.S. Khehar and Abdul Nazeer J. It was held that any man who pronounces instant triple Talaq would be punished with an imprisonment of three years and fine.
The Muslim Women (Protection of Rights on Marriage) Act, 2019.
The Muslim Women (Protection of Rights on Marriage) Act makes the declaration of talaq-e-biddat a crime. The objective of the ordinance is to protect the rights of married Muslim women. The ordinance reiterates the Supreme Court verdict that any pronouncement of talaq by:
A Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal. According to Section 4, any Muslim husband who pronounces instant talaq will be punished with imprisonment of up to three years and will be liable to a fine. Section 5 entitles a married Muslim woman upon whom talaq is pronounced to receive a ‘subsistence allowance’, to be determined by a First-Class Judicial Magistrate, from her husband for herself and their dependent children.
