A five-member bench of the Supreme Court of India, starting Thursday, will hear the final arguments over the constitutionality of the Islamic practice of triple talaq. What makes the case even more path-breaking is the different faith that the five judges follow – Hinduism, Islam, Christianity, Sikhism and Parsiism.
As anti-triple talaq activists hope for a favourable verdict, let us get a clear understanding of Muslim marriage and the rights of a woman under Islam.
What is Nikah?
Essentially, Nikah is a contract laid down in a ‘Nikahnama’ drawn between a man and a woman. This contract can have conditions and a mandatory ‘Mehr’ (consideration) to be paid by the husband’s family to the wife at the time of marriage. This is an exclusive property of the wife and is hers upon divorce if she hasn’t previously waived it off as per her own will.
Unlike Hindu marriages, Muslim marriages are not a sacrament and are bound by contracts.
Divorce in Islam
Everything in Islam is followed according to Sunnah (Deeds of the Prophet) and the Quranic dictation. Most Muslim women who oppose triple talaq, want Muslim bodies to grant divorce as per the Prophet’s saying – ‘Talaq-e-Sunnah’, and discard ‘Talaq-e-Biddah’, commonly known as ‘Triple Talaq’ which allows a man to instantaneously divorce his wife.
What is Talaq-e-Sunnah?
This is the approved form of Talaq as it is based on Prophet’s tradition which says that giving talaq to a wife in a fit of rage or anger is strictly prohibited. As a matter of fact, the Prophet always considered Talaq as evil.
Talaq-e-Sunnah can be given in two ways: Talaq Ahsan and Talaq Hasan.
This is regarded as the most proper way of divorce where the Prophet advises the husband to settle disputes with his wife through a mutual conversation as the first step. This is known as the ‘Fa’izu Hunna’.
The second step requires the parties to refrain from any conjugal acts till the differences are solved. This act of physical separation, known as the ‘Wahjuru Hunna’, is prescribed so that the couple reunites.
If this fails too, then the husband is advised to talk to his wife, make peace with her, and articulate the gravity of the situation. This is the third step known as the ‘Wazribu Hunna’.
In the fourth and the last step, one member from each the spouses’ families is present and the parties try to make amends through ‘arbitration’.
If all of these fail, then the husband pronounces the first talaq during the Tuhr of the wife. Tuhr is the period of wife’s parity i.e. a period between two menstruations. The second talaq is pronounced after a compulsory wait for the wife’s three-month iddah (three complete menstrual cycles).
In case a woman has reached her menopause, then the period of iddah is three months, whereas if a woman is pregnant then the period of iddah is till the child is born or the pregnancy is terminated.
If cohabitation takes place even once during this period, the Talaq is revoked and it is presumed that the husband has reconciled with the wife.
Hasan means ‘good’, though this form of Talaq is not considered as proper as Talaq Ahsan. The difference here is that the pronouncement of Talaq by the husband can be made three times in successive Tuhrs. The husband has to make a single declaration of Talaq in a period of Tuhr. In the next Tuhr, there is another single pronouncement for the second time. if no revocation is made after the first or second declaration then lastly the husband is to make the third pronouncement in the third period of purity (Tuhr). As soon as this third declaration is made, the Talaq becomes irrevocable.
What is Talaq-e-Biddah?
Talaq-e-Biddah is the practice of triple talaq or instant divorce through which men leave their wives via a phone call, an SMS, or a mere Facebook post.
It is Talaq-e-Biddah that the Supreme Court is hearing arguments against.
‘Biddah’ means ‘innovation in religious matters’ and essentially all Muslims are advised against it. The practice of triple talaq was first promoted by Caliph Umar and the Muslim Personal Law Board has still not spoken up on the issue and claims that it can be solved internally by Islamic scholars.riple talaq.
But triple talaq is already not recognised as a lawful act under the Quran and is not practised in many Muslim dominated countries, including Pakistan, Egypt, Turkey, Iraq, Indonesia, Bangladesh, Sri Lanka and Tunisia.
Can a couple get remarried after the third talaq in Talaq-e-Sunnah?
Yes, though the procedure is not at all simple and is considered barbaric by several women of the Muslim community.
After the third talaq is pronounced by the husband, the woman can only remarry him after she gets married to another man, consummates the relationship and gets divorced again under Talaq-e-Sunnah. This practice is known as ‘Nikah Halala’ and assumes an even more barbaric role if the first divorce is given as triple talaq.
Do Muslim women have the right to divorce their husbands?
Kind of, not really.
There are two methods by which a woman may divorce her husband.
First, ‘Talaq-e-Tafweez’ through which the husband ‘may’ delegate his power to divorce from his wife or any third party. The transfer of right has to take place with a contract that contains condition like ‘if a man marries again’ then there can be a divorce. The contact will always contain conditions and will never be absolute.
Second, ‘Khula’ which is a divorce at the ‘request’ of the wife, where the woman makes an offer of divorce to her husband. The man has to accept the offer with considerations, which often requires the wife to give back her Mehr taken during the marriage. Following these two steps, a Khula is granted. Women often approach a qazi-court to demand a Khula from her husband which actuates the execution of a Khulanama.
Incidentally, in both the cases, a woman can only request for a divorce and it remains at the behest of the husband to draw up the contract to give the wife a chance to divorce him. Therefore, in actuality, a woman doesn’t really have the power/right to divorce her husband.
Can women challenge a divorce?
Most debates around triple talaq are myopic and fail to mention the rights of a woman. However, all the violence suffered by women due to triple talaq – physical, mental, sexual and economic – fall under the purview of the Protection of Women from Domestic Violence Act, 2005. The Act is applicable to all women, including Muslim women, and gives them the right to maintenance, child custody, residence in her matrimonial home or any other alternate residence, and compensation for violence inflicted upon her. The procedure for availing these rights is to file an application in a local magistrate’s court and the state is mandated to provide legal aid under the Act.
The Logical Indian Take
Most movements against triple talaq suggest the need of a Uniform Civil Code (UCC), which would ensure justice for women in marriage and inheritance. But the question that needs to be asked here is – would this help women achieve an equal status as men in the society? A UCC is the first step, but it is not the final solution.
The Supreme Court would be right in banning triple talaq, but we should also keep in mind that more work remains after that. Gender equality does not end with outlawing triple talaq. Even after a ban on triple talaq, would Sharaya Banu and thousands of other Muslim women like her not need to move the court for their rights? Even in Hindu divorce, the woman has to appeal to the court for her rights to maintenance, child custody, compensation, etc.
Women need to be made aware of their rights. Bringing them under a uniform law will only help when a patriarchal form of marriage is done away with, and the institution that lays gender roles and trains women to be ‘wives’ alone is repaired.
The Logical Indian community is in the favour of banning triple talaq and we hope that the Supreme Court’s judgement helps the cause of thousands of Muslim women who fall prey to the cruelty of this practice.
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