Introduction:-
Talaq in its primitive sense means dismission. In its literal meaning, it means “setting free”, “letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate words. In other words talaq is repudiation of marriage by the husband in accordance with the procedure laid down by the law.
The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on June 21, 2019. It replaces an Ordinance promulgated on February 21, 2019.
The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.
Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
Why this law came into practice?
A Muslim marriage is a pure civil contract and as per sharia law, a Muslim marriage can take place only when both parties agree, so how can one person unilaterally divorce another? Instant triple talaq violates women’s fundamental rights at a large. Marriage is a two way agreement between a man and a women which is equally binding on both and provides a mutual separation. The Triple Talaq makes it a one sided affair and gives all the prerogative to the husband to walk out of this alliance at his whims.
Triple talaq is not integral to religious practice and violates constitutional morality. It is manifestly, arbitrary to allow a man to break down a marriage whimsically and capriciously. What is sinful under religion cannot be valid under law.
In India, a Muslim man can instantly divorce his wife by uttering the word “TALAQ” three times. The Muslim women were subjected to cruelty by Muslim male and it was getting misused by men for the wrongful acts. For example: – If a women is not able to give a birth to a male child, or a small quarrel between husband and wife, or in a rage or anger. Thus, Muslim men’s misusing Triple Talaq without any reason as a matter of their rights.
Because of this cruelty and injustice, women have to suffer and have to live a miserable life and thus, they were not even secured from their own husband. Therefore, this new law came into force on 19th day of September, 2018 for the empowerment and safety to the women.
Salient features:-
- The act deals with Talaq-e Biddat, a form of instant and irrevocable divorce given by Muslim men. It is recognized under Muslim Personal Law, where saying the word ‘Talaq’ thrice in one sitting by a man to his wife leads to instant divorce.
- The act considers all declaration of triple talaq electronically or in written form as void.
- The act declares triple talaq as a ‘cognizable offence’ (i.e., a police officer can arrest the accused without a warrant) and will attract three years of imprisonment with fine. The act also describes that, the offence will be cognizable only if information relating to the offence will be given by, the married woman (against whom talaq has been declared) or any person related to her by blood or marriage.
- The magistrate can grant bail to the accused after hearing the plea of the woman (against whom talaq has been declared) and finding reasonable grounds for granting bail.
- The act also gives the provision of the settlement of the dispute between both the parties i.e., the one giving the divorce and the woman against whom the divorce is declared. But the terms and conditions of the offence will be determined by the Magistrate.
- The Muslim woman, who is the victim of triple talaq, will be liable to get an allowance from her husband for herself and her dependent children. The Magistrate will also determine the allowance that she will receive.
- The Magistrate will also determine the manner of custody of the minor children that will be granted to the woman in case she seeks it.
How this law will help Muslim women?
Instant divorce is banned in 22 countries, including Pakistan and Bangladesh.
This law protects the women as the husband cannot give the “Instead Talaq”, if he does then, he will be punishable by the law and thus, the husband have to think thrice before pronouncing the word “Talaq” thrice.
The practice of this law will help the women from getting their fundamental rights and this instead talaq will stopped in the Muslim community.
It gives Muslim women equal rights to take decisions about the divorce.
The court said the practice is unconstitutional arbitrary and not a part of Islam.
This law criminalization triple talaq and it awards three years imprisonment to husband and also compensation to his wife along with the custody of children.
The triple talaq law makes declaration of Talaq-e-biddat in spoken, written or through SMS or WhatsApp or any other electronic chat illegal. Talaq-e-biddat refers to the pronouncement of talaq three times by a Muslim man in one sitting to his wife resulting in an instant and irrevocable divorce.
In India, the Muslims are governed by
- The Muslim Personal Law (Shariat) Application Act, 1937: This law deals with marriage, succession, inheritance and charities among Muslims
- The Dissolution of Muslim Marriages Act, 1939: This law deals with the circumstances in which Muslim women can obtain divorce.
- The Muslim Women (Protection of Rights on Divorce) Act, 1986: This law deals with the rights of Muslim women who have been divorced by their husbands and to provide for matters connected therewith.
Modes of Divorce
- A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally this done by talaq. But he may also divorce by Ila, and Zihar which differ from talaq only in form, not in substance.
- A wife cannot divorce her husband of her own accord. She can divorce the husband only when the husband has delegated such a right to her or under an agreement. Under an agreement the wife may divorce her husband either by Khula or Mubarat.
- Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the husband. But the Dissolution of Muslim Marriages Actext-justifyt 1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the court.
The way out for a Muslim women if they want to take divorce:-
Chapter XVI of Principles of Mahomedan Law deals with DIVORCE.
Section 307 – Different forms of divorce:
The contract of marriage under the Mahomedan law may be dissolved in any one of the following ways:
- By the husband at his will, without the intervention of the Court;
- by mutual consent of the husband and wife, without the intervention of a Court;
- By a judicial decree at the suit of the husband or wife.
When the divorce proceeds from the husband, it is called “TALAQ”.
As per section 308 of principles of Mahomedan law; any Mahomedan of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause.
Section 311 of Principles of Mahomedan Law deals with different modes of talaq – A talaq may be effected in any of the following ways –
- Talaq Ahsan – This consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat.
- Talaq Hasan – This consist of three pronouncement made during successive tuhrs, no intercourse taking place during any of the three tuhrs.
- Talaq al biddat – This consists of three pronouncements made during a single tuhr either in one sentence or a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage.
The latter includes: the proclamation of divorce by the husband; divorce initiated by his wife; divorce by mutual consent. An out-of-court divorce may qualify as Talaq al-Sunna, i.e. performed in accordance with the [established by the Prophet] rules, “approved”, or as Talaq al-Biddat, – “new” or “not approved”.
“Approved” divorce implies that the husband waits for three months after the first (single) pronouncement of the word talaq; however, reconciliation is possible between the spouses. In the case of “unapproved” divorce, the marriage is considered to be finally terminated immediately after the spouse’s “triple talaq” formula was pronounced, and there is no chance of resolving the situation.
When it is said the third time at the end of iddat it becomes final, though even without the third time, talaq becomes final when iddat expires. The only difference between two pronouncements and three pronouncements is that the couple is free to remarry in case of the latter but not in case of the former. The triple instantaneous talaq is – or was – essentially talaq of the three times but said at one sitting instead of over three months. So, essentially the only difference was that the husband denied himself the right to take it back or indeed to remarry the ex-wife after iddat. For the woman there was no real difference so long as the husband’s obligation of the iddat period was observed, as they must.
In recent years, with the development of new technologies, the tradition under consideration in India has undergone certain metamorphoses. The development of technologies does not level out traditional practices, but, on the contrary, contributes to their further development or even misuse – as is the case with the Muslim “divorce formula” – a kind of perverted modernization. According to the norms of Sharia, husbands are obliged to pronounce the word “talaq” in front of witnesses or at least in the presence of a wife. At the same time, there are frequent cases when men sent spouses either a text message with the word “talaq, talaq, talaq”, or a similar message in messengers like WhatsApp, Skype, etc. Thus, over the decade (2007–2017), the Muslim Movement of India has recorded many instances of such a “high-tech” divorce, as a result of which women with children in an instant found them outside the doorstep.
If the Marriage is registered as per the provisions of Muslim law, the divorce too will be governed under the procedures of and as per the provisions of Muslim Law.
Note: – If a Muslim male and female get married and the Marriage is registered under the special marriage act than the procedure followed for divorce need not follow the Muslim Personal law.
Section 2 in the Dissolution of Muslim Marriages Act, 1939 deals with the grounds for decree for dissolution of marriage.
A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:
- That the whereabouts of the husband have not been known for a period of four years;
- That the husband has neglected or has failed to provide for her maintenance for a period of two years;
- That the husband has been sentenced to imprisonment for a period of seven years or upwards;
- That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
- That the husband was impotent at the time of the marriage and continues to be so;
- That the husband has been insane for a period of two years or is suffering from leprosy a virulent venereal disease;
- That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:
Provided that the marriage has not been consummated; - That the husband treats her with cruelty, that is to say,
- habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
- Associates with women of evil repute or leads an infamous life, or
- Attempts to force her to lead an immoral life, or
- Disposes of her property or prevents her exercising her legal rights over it, or
- Obstructs her in the observance of her religious profession or practice, or
- If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;
- On any other ground which is recognized as valid for the dissolution of marriages under Muslim law;
Provided that-- No decree shall be passed on ground (iii) until the sentence has become final;
- a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and
- before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.
Thus, a Muslim marriage may be dissolved by pronouncing talaq. It may also be dissolved by an agreement between the husband and wife. When it is the letter it is known as khula. Ghansi Bibi v. Ghulam Dastagir (1968) 1 Mys. LJ. 566.
Offence and penalty:-
Section 3 of protection of rights on marriage act, 2019:-
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.
Section 4 of protection of rights on marriage act, 2019:-
Any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.
The act makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person without warrant.) The offence will be cognizable only if information relating to the offence is given by:
- The married woman (against whom talaq has been declared), or
- Any person related to her by blood or marriage.
The act provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail. – As per Section 7 (c) of the protection of rights on marriage, 2019.
The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared). Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute. The terms and conditions of the compounding of the offence will be determined by the Magistrate.
Allowance:–
As per section 5 of PROTECTION OF RIGHTS OF MARRIED MUSLIM WOMEN:-
Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for her and dependent children, as may be determined by the Magistrate.
Thus, a Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the allowance will be determined by the Magistrate.
Custody:-
As per section 6 of PROTECTION OF RIGHTS OF MARRIED MUSLIM WOMEN:-
Notwithstanding anything contained in any other law for the time being in force, a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.
Thus, a Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.
Conclusion:-
According to Muslim Personal Law, triple talaq is invalid and unlawful from the very onset. In Bangladesh and Pakistan, Triple Talaq is null and void. No talaq can be given at the state of anger. Basically, it’s an instrument for oppression of helpless women. Triple Talaq hardly happens in well to do families. We welcome Triple Talaq bill (Now an Act) as it empowers women and male autocracy is curtained. The Muslim women finally asserting themselves to seek their space in a male-dominated society.