Introduction
In India's history, August 1st, 2019, will forever be etched as a historic day – "Muslim Women Rights Day." This marked the culmination of a prolonged struggle against the antiquated practice of Triple Talaq, symbolizing a triumph for constitutional and democratic rights and a significant leap towards gender equality in the diverse fabric of Indian society.
What is Triple Talaq?
Triple talaq is a form of divorce in Islam, wherein a Muslim man has the legal right to dissolve his marriage by uttering the word "talaq" (Arabic for divorce) three times. The practice dates back 1400 years, and is predominantly observed among Sunni Muslims particularly among followers of the Hanafi School of Islamic Law.
The Muslim Personal Law Act of 1937 played a significant role in institutionalizing the process of Triple Talaq, thereby granting a special privilege to Muslim men over their wives. This legal framework allowed for the unilateral termination of marriages, raising concerns about gender equality within the context of Islamic personal laws.This declaration can take various forms, including oral pronouncement, written communication, or, in contemporary times, electronic means such as phone calls, SMS, emails, or social media. Notably, the husband is not obliged to provide any specific reason for the divorce, and the wife need not be present during the pronouncement.
After the declaration, a waiting period, known as iddat, ensues, during which it is ascertained if the wife is pregnant. Following this period, the divorce becomes irrevocable. While the recommended practice traditionally involved a waiting period before each talaq announcement, allowing for potential reconciliation attempts, it had become common to pronounce all three in a single session. Despite disapproval, this practice was not explicitly forbidden. It's important to note that a woman who has undergone triple talaq cannot remarry her former husband unless she first marries another man, a practice referred to as nikah halala.
There were numerous instances, where women were given Talaq through letters, phone calls, messages, and even WhatsApp.
The Battle for equality
The panel overseeing the contentious Shayara Bano v. Union of India & Others case in 2017 comprised judges from diverse faiths. Chief Justice J. S. Khehar (Sikhism) was joined by Justices Kurian Joseph (Christianity), R. F. Nariman (Parsi), U. U. Lalit (Hindu), and S. Abdul Nazeer (Muslim).
The Supreme Court delved into an examination of whether Triple Talaq enjoys constitutional protection under Article 25(1), which guarantees the fundamental right to "profess, practice, and propagate religion." The court sought to determine whether instant triple talaq is an intrinsic aspect of Islamic belief and practice.
In a comprehensive 397-page ruling, while two judges upheld the validity of instant triple talaq (talaq-e-biddat), three others declared it unconstitutional, resulting in a 3–2 majority against the practice. One judge contended that instant triple talaq violated Islamic law. The bench urged the central government to formulate legislation within six months to regulate marriage and divorce in the Muslim community. Until such legislation was enacted, the court imposed an injunction against husbands pronouncing instant triple talaq on their wives.
Role of the Modi Government
The Bharatiya Janata Party (BJP) and its ideological allies have consistently opposed the practice of triple talaq, asserting that it is discriminatory and infringes upon the rights of Muslim women. The party has been a strong advocate for legal reforms to address this issue and ensure gender justice.
Under the leadership of Prime Minister Narendra Modi, the BJP-led government took proactive measures to tackle the matter. In 2017, the Indian government supported a legal initiative aimed at criminalizing the practice of instant triple talaq. The government's argument emphasized that this form of divorce was arbitrary, leaving women vulnerable and without sufficient financial support.
Laws introduced
The legislative measures addressing instant Triple Talaq introduced were:
The Muslim Women (Protection of Rights on Marriage) Bill, 2017: Lok Sabha Approval
Proposed in response to the persistence of instant triple talaq cases post the 2017 Supreme Court judgment, this bill sought to criminalize the practice comprehensively.
While it garnered support from the Congress, it faced opposition from various parties. Ultimately, it successfully passed through the Lok Sabha on December 28, 2017.
The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018: Criminalization of Instant Triple Talaq
In response to the continued occurrences of instant triple talaq despite the Supreme Court ruling, this ordinance aimed to declare the practice illegal. It introduced provisions for punishment, acknowledged complaints from the wife or her relatives, and addressed matters of bail, custody, and maintenance. Approved by the President on September 19, 2018, this ordinance was a crucial step in curbing the practice.
The Muslim Women (Protection of Rights on Marriage) Bill, 2018: A Renewed Attempt
Introduced to replace the expiring 2018 ordinance, this bill reaffirmed the criminalization of instant triple talaq. It delineated specific provisions related to punishment, bail, maintenance, custody, and dispute resolution. Although it received approval from the Lok Sabha on December 27, 2018, it encountered opposition in the Rajya Sabha, leading to a halt in its progress.
The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019: Extension and Repromulgation
To extend the provisions of the expiring 2018 ordinance, the government reissued it on January 10, 2019, after the 2018 bill failed to secure passage. President Ram Nath Kovind approved the ordinance on January 12, 2019, ensuring the continuity of legal measures against instant triple talaq.
The Muslim Women (Protection of Rights on Marriage) Act, 2019: Enactment into Law
Replacing the earlier ordinance, the Act officially came into effect on July 31, 2019. This legislation solidified the criminalization of instant triple talaq, marking a significant milestone in addressing and rectifying the challenges posed by this practice.
Inaction of the Congress
The opportunity to enact legislation against the social menace of Triple Talaq presented itself in 1986 after the Hon’ble Supreme Court delivered a landmark judgment in the Shah Bano Case. At that time, the Congress party held an absolute majority in Parliament, boasting over 400 out of 545 Lok Sabha Members and more than 159 out of 245 Members in the Rajya Sabha.
However, instead of using this majority to enact a law against this practice, the Rajiv Gandhi Government utilized its parliamentary strength to nullify the Supreme Court's judgment, thereby depriving Muslim women of their constitutional and fundamental rights.
The Congress Government of that era succumbed to the illogical stance of some "narrow-minded fanatics," committing what can be described as a criminal act against the constitutional rights of Muslim women. The consequences of this decision, which could be termed as the Congress' "Mistake of the Moment," proved to be a severe and prolonged "Punishment of the Decades" for Muslim women. The Congress party, driven by electoral considerations and "Vote Ka Udhaar" (vote bank politics), prioritized political gains over the imperative of "Samajik Sudhaar" (social reform).
India operates under a Constitution, not Shariat or any other religious doctrine. Historically, the country has enacted various legislations to abolish deeply ingrained social ills such as Sati Pratha and Child Marriage. The law against Triple Talaq transcends religious considerations; rather, it is a legislative measure aimed at ensuring gender equality by putting an end to a social evil that is deemed inhuman, cruel, and unconstitutional.
Global Alignment
India's decision to abolish Triple Talaq is in line with the similar rulings in numerous other Muslim-majority nations that had long abandoned this practice. Countries like Egypt, Sudan, Pakistan, Bangladesh, Iraq, Syria, Malaysia, and others had already taken steps to recognize and uphold the importance of women's rights and gender equality in this context.
Impact and Decline in Cases:
Since the enactment of the law, there has been a substantial decline – approximately 82% – in reported Triple Talaq cases. The legal framework has erected a protective barrier for women, ensuring that those attempting to employ this illegal practice face legal repercussions. This decline reflects a positive societal shift towards gender equality and justice.
Empowerment of the Muslim female:
Contrary to skeptics questioning the government's motives, the Modi administration has consistently worked towards the inclusive empowerment of all sections of society, including Muslim women.
Scholarships, skill development programs, employment opportunities, and initiatives like "Hunar Haat" have directly benefited Muslim women, fostering their equal participation in the nation's progress.
Societal Transformation:
The abolition of Triple Talaq signifies not just a legal victory but a societal transformation towards gender equality and justice. August 1st, now celebrated as "Muslim Women Rights Day," stands as a testament to the nation's commitment to eradicating discriminatory practices and cultivating an environment where every individual, regardless of gender or religious affiliation, can flourish.
Conclusion:
As India continues its journey of social reform, the empowerment of Muslim women remains a cornerstone for a more inclusive and progressive future. The abolition of Triple Talaq reflects a triumph for gender equality and justice, heralding an era where discriminatory practices are dismantled, and the rights of all individuals are upheld.
August 1st serves as a poignant reminder that, in the collective pursuit of a just and equitable society, every stride towards inclusivity is a stride towards a brighter, more egalitarian future
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