Talaq-e-biddat Goes but Dehumanising Halala Remains

Parmanand Pandey


The obnoxious practice of triple Talaq, which has spoiled the lives of thousands of Muslim women across the country has now been outlawed by the Supreme Court of India. Muslim men have been divorcing women with gay abandon by saying talaq three times in one go, sometimes under the influence of Alcohol and sometimes in anger and many times for trivial reasons. It is surprising that triple Talaq has been continuing in a secular country like India while dozens of Muslim countries have already banned it. Therefore, banning of triple Talaq or Talaq-e-biddat through Supreme Court judgment in ‘Shayara Bano vs Union of India and others’ has come as a huge relief to millions of Muslim women.

Although marriage is a contract under Islamic law yet the right to divorce is available only to men. There are three types of Talaq: Talaq-e-ahsan, Talaq-e-hasan and Talaq-e-biddat. ‘Khula’ is an annulment of marriage at the instance of wife but then that is no Talaq

because it has to be approved by the husband. Divorce by mutual consent is called ‘Mubaraat’ which is almost impossible because the women cannot stand on the same pedestal as men. Talaq-e-biddat permits a male spouse an unqualified right to severe matrimonial tie. It can be exercised without the disclosure of any reason, and in fact, even in the absence of reasons.

The facts in brief are that one Shayara Bano of Allahabad approached the Supreme Court assailing the divorce pronounced by her husband Rizwan Ahmad on 10th October 2015 which shattered all the dreams of Shayara Bano and her two teen aged children- Mohammad Irfan (15) and Umairo Naaz (13). The Supreme Court has ruled said that Talaq-e-biddat should not be confused with the profession, practice and propagation of Islam as it is not sacrosanct to the profession of the Muslim religion. This is practiced only by Sunnis and not by any other sect of Islam. Thus Talaq-e biddat flies in the face of Article 14, 15 and 16 of the Constitution of India.

The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflective of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The Constitution seeks to establish secular, socialist democratic republic in which every citizen has equality of status and of opportunity, to promote among the people dignity of the individual, unity and integrity of the nation transcending them from caste, sectional, religious barriers fostering fraternity among them. The emphasis, therefore, is on a citizen to improve excellence and equal status and dignity of person.

Social legislation is not a document for fastidious dialects but means of ordering the life of the people. To construe law, one must enter into its spirit, its setting and history. Law should be capable to expand freedom of the people and the legal order can weigh with utmost equal care to provide the underpinning of the highly inequitable social order. Judicial review must be exercised with insight into social values to supplement the changing social needs. The existing social inequalities or imbalances are required to be removed readjusting the social order through rule of law.
Various Hindu practices which were not in tune with the times, had been done away with, in the interest of promoting equality and fraternity. The Constitution through its Preamble, Fundamental Rights and Directive Principles created secular State based on the principle of equality and non-discrimination striking a balance between the rights of the individuals and the duty and commitment of the State to establish an egalitarian social order. Human rights are derived from the dignity inherent in the human person. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. The human rights for women, including girl child are, therefore, inalienable, integral and an indivisible part of their personality. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth – cultural, social and economic. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights.
Even the minority judgement delivered by Justice Jagdish Singh Khehar and Justice S. Abdul Nazeer said that triple Talaq was not protected by Article 25 of the Constitution which gave freedom to practice rituals and ceremonies etc. Nevertheless, instead of straightway declaring the triple talaq as void as done by other three judges, they exercised the powers under Article 142 of the Constitution for issuing directions to the Government of India for appropriate legislation particularly with Talaq-e-biddat.

Justice Kurian in his separate but concurring with the banning of Talaq-e-biddat said ‘it is necessary to consider whether it is Quranically wrong or right and another simple question that needs to be answered is whether triple talaq has any legal sanctity. This issue has already been settled by the Supreme Court in ‘Shamim Ara v. State of UP and Another’ that triple talaq lacks legal sanctity. Therefore, Shamim Ara continues to be the law that is applicable in India’.

The most important part of the judgement was delivered by the Justice R.F. Nariman, who also authored on behalf of Justice U.U. Lalit. He disagreed with the Chief Justice and said that “Triple Talaq is an anachronism in today’s time and age and, constitutionally speaking, is anathema. Gender discrimination is put at the forefront of the argument, and it is stated that even though Triple Talaq may be sanctioned by the Shariat law as applicable to Sunni Muslims in India, it is violative of Muslim women’s fundamental rights to be found, more particularly, in Articles 14, 15(1) and 21 of the Constitution of India.” Quoting a host of the judgments of the Supreme Court the Learned judges said that ‘the test of manifest arbitrariness, would apply to invalidate this obnoxious practice of triple Talaq under Article 14. Such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness as pointed out by us would apply to negate legislation as well under Article 14’.

The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters — one from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be effected. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. It is, therefore, clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right and must be struck down as being void.
This judgment of the Supreme Court on triple Talaq, by all means, is a landmark one as it will unleash and empower the Muslim women. There is, nevertheless, the need is to ban the ‘halala’ which is a very ghastly practice that dehumanises a woman as she has to go for another Nikah with a stranger to consummate the marriage, should her husband want to remarry with her in case of any reconciliation. How can one be insensitive to the trauma and pain of a woman when she undergoes halala? This issue will certainly come before the Court sooner or later.