CASE COMMENTARY ON THE TRIPLE TALAQ JUDGEMENT
In a patriarchal society like India the struggle of women for their rights is still on the go. Women have to raise voice each time they are put to injustice and still go unheard at times. Such struggle was also seen in the case of triple talaq (talaq-e-mughalaza) – a practice in which a Muslim man could divorce his wife by simply uttering the words ‘talaq’ three times and the condition is that he needs to say this in one sitting. He can either pronounce it orally or use electronic means such as sms, email or telephone. Such a practice was mostly prevalent in the Hanafi School of Islamic thought. This issue mainly emerged when the Bharatiya Muslim Mahila Andolan (BMMA) launched a campaign to ban triple talaq and nikah halal- a practice wherein if a Muslim woman wants to go back to the first husband then first has to consummate the second marriage.
The debate for its ban witnessed numerous opinions. The All India Muslim Personal Board has opposed the ban and called it government interference with the Muslim personal laws. Politicians from the Bharatiya Janata Party have ruled that it is a way for Muslim men to satisfy their lust and so are vociferously opposing the Uniform Civil Code ideology. Triple TALAAQ has been declared illegal in theocratic states such as Pakistan, Bangladesh, and Turkey. Counsel Amit Singh Chadha for petitioner Shayra Bano has voiced opinion saying that Muslim men’s absolute right to triple talaq making women to comply with the provisions of Dissolution of Muslim marriages Act, 1939 is very unjust as they have no legal recourse and cannot question it which in fact restricts their right. If rightly observed then it can be said that triple talaq is available only to the husband and not the wife and is against Article 14 (Right to Equality) of the constitution. Also, Article 15 prohibits discrimination on the grounds of religion, caste, race, sex and place of birth hence laws have to be made to improve the situation of women and not deprive them. The Quran teaches to respect women and to not abandon her without any reason, if a spouse gives divorce without any logical or rational reason then it violates the rights of the woman as she does not know why divorce has been given and also deprives her right on children and matrimonial house. In view of Article 21 this is totally unconstitutional and arbitrary. Article 25(1) states freedom of religion to every citizen to practice and profess it. Muslim marriage and divorce are governed by Muslim personal laws and it is nowhere mentioned in the Quran that talaq-ul-biddat i.e. triple talaq needs to be practiced.
In the case of Shayara Bano v. Union of India, a PIL has been filed by Mrs. Bano who was abused and harassed by her husband also subjecting her to divorce by triple talaq. This petition has given hope and a chance for all those who have suffered. Rightly, the Supreme Court has declared triple talaq to be unconstitutional and violative of the Constitution. There is a need for revolution of Islamic law to protect the true spirit of Islam. The arbitrary powers exercised by the husband shall be monitored. There is a need to honor the rights of Muslim women and protect their dignity. The husband shall specify the need for his actions undertaken. Also, the state is duty bound to provide awareness to uplift Muslim women in the community.