Context:
• Recently, PM Narendra Modi stated that the issue of Triple Talaq should be debated without politicizing the issue.
• Now this has led to a debate on whether Triple Talaq should be ended or not.
• This debate comes in the background of the Shayara Bano case. Shayara Bano is a resident of Kashipur in Uttarakhand who was given instantaneous Triple Talaq by her husband.In February 2016 She had approached the Supreme Court challenging the following long-standing practices –
o Talaq-e-Bidat,
o Nikah Halala and
o Polygamy.
• Subsequently, Union government filed an affidavit supporting the petitioner’s demand.
What are the basic terms related to divorce in Islam?
| 1 | Talaq | a) The word Talaq originally meant “rejection” or “repudiation”. b) In Muslim law, it means divorce initiated by the husband. Only the husband has a right to pronounce Talaq. c) Talaq can be effected in writing (Talaqnama) or orally. |
| 2 | Talaq-Ul-Sunnat
|
a) Under this form of Talaq, once the husband initiates Talaq, there has to be a three-month waiting period (iddat) to factor in three menstrual cycles of the woman.
b) This time is meant for reconciliation. |
| 3 | Talaq-e-Bidat | a) It means instantaneous Triple Talaq. Under this form of Talaq, once the husband pronounces Talaq thrice in one sitting, the divorce occurs immediately irrespective of iddat. Once pronounced, it cannot be revoked.
b) It has no origin in Quran. According to Muslim scholar Tahir Mahmood, this form traces its origin to the time when the first caliph (Abu Bakr) used it once so as to grant instant divorce to a few women who were no longer willing to stay with their husbands. |
| 4 | Nikah-halala | a) Under this, if a female divorcee wants to remarry her previous husband then she has to following the following steps”
1. First she will have to marry someone else, 2. Then consummate that marriage, and 3. Then get a divorce. Then only she is eligible to marry her previous husband. |
| 5 | Khul’ | Khul’ is a procedure through which a woman can divorce her husband in Islam through mutual consent or a judicial decree. |
What are the arguments in favor of talaq-e-bidat?
| 1 | It is beneficial for women | The All India Muslim Personal Law Board (AIMPLB) – a body that comprises just 12 per cent women – states that Triple Talaq has the following benefits –
1. Saves women the shame of divorce proceedingswhich could damage her chances of re-marriage, and 2. Prevents the “murder of wives” by their husbands. |
| 2 | Islamic | It is an integral part of Islam and thus should be continued. The words of allah are divine. |
| 3 | Constitutional | Article 25 of the Constitution, states that the religious faith should be protected. |
| 4 | Low Divorce Rate | Despite their vulnerability to arbitrary divorce, the divorce rate — number of divorcees per 1,000 marriages —among the Muslim community is not the highest. According to census 2011, the divorce rate among women among different religious community is as follows (in descending order):1. Buddhist (6.73),2. Christians (5.67),3. Muslims (5.63), 4.‘Other communities’ (4.91), 5. Jains (3.04), 6. Hindus (2.60) and 7. Sikhs (2.56). |
| 5 | View of clergy | Clergy acknowledges Talaq-e-Bidat to be bad in theology, but valid & good in law. |
What are the arguments against talaq-e-bidat?
| 1 | Against women’s rights | This barbaric practice is against women’s rights.
Bharatiya Muslim Mahila Andolan (BMMA), in 2015 conducted a survey of 4,710 Muslim women in 10 states. Following below are the findings – More than 90 per cent wanted an end to polygamy and Triple Talaq. Of the 525 divorced women, 78 per cent had been given Triple Talaq; 76 of these women had had to go through the process of Nikah-halala. BMMA is autonomous national coalition which has over 1 lakh members across 15 states. |
| 2 | Un-Islamic | According to many Muslim scholars:
Talaq-e-bidat has no foundation in the Quran. Divorce is only permissible in extreme emergency cases and that too, only after all efforts for reconciliation have failed. Infact, around 20 Muslim majority countries including theocratic states like Pakistan and Afghanistan have banned Triple Talaq in one sitting. |
| 3 | Un-constitutional | Shayara bano’s petition argues that Triple Talaq is against the fundamental rights guaranteed (under Articles 14, 15, 21 and 25) by the Indian Constitution.
On Article 25, the petition states that A-25 merely protects religious faith and not practices that are against “morality, public order or health”. |
| 4 | Pam Rajput committee’s view | A High level committee on the status of women in India, under the chairmanship of Pam Rajput submitted its report in 2015.
Following below are the views of the committee – 1. It recommends reforms in personal laws of all communities in matters of marriage, divorce, succession and custody. 2. In the words of the committee “The approach should not be one of ensuring that there is one law for all, but rather, that all women, whether they choose to be governed by secular laws or their personal laws, enjoy equality which the Indian Constitution promises them.” |
| 5 | Religious parity | According to Hindus, When personal laws of Hindus have been codified and reformed, then why shouldn’t the same happen for Muslims. |