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Mainstream, VOL LV No 1 New Delhi December 24, 2016 - ANNUAL 2016

Triple talaaq is neither constitutional nor a Quranic form of divorce

Monday 26 December 2016

by Irfan Engineer

The observations of the Allahbad High Court on December 8 stating that the Muslim personal law on triple talaaq didn’t give unbridled authority to a Muslim male to unilaterally divorce his wife would be welcomed by Muslim women who have been victims of misuse of the provision in particular, and to Muslim women in general, who face the threat of capricious use of the authority not granted to men by the Quran.

Though the Court refused to comment on the legality of triple talaaq enabling Muslim men to unilaterally divorce their wives by uttering the word “talaaq” thrice, its observations are a tight slap on the Muslim Personal Law Board, which had claimed in its affidavit before the Supreme Court in a writ petition filed in the Shayara Bano case that the Court had no jurisdiction to hold triple talaaq as an invalid form of divorce and claiming protection of Article 25 of the Constitution, under which every person is entitled to freely profess, practise and propagate one’s religion. The right granted under Article 25 is subject to other provisions of the Chapter on Fundamental Rights in the Constitution. Right to practise religion is therefore subject to Article 14—right to gender equality.

Severing marital relations instantly by pronouncing the word “talaaq” thrice is not only anti-constitutional, it is also anti-Quranic. The Quranic verse 2:229 states: “A divorce is only permissible twice: After that (the parties should either hold together on equitable terms, or separate with kindness. It is not lawful for you, (men), to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If you (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah; so do not transgress them, if any do transgress the limits ordained by Allah, such persons wrong (themselves as well as others).”

Pronouncing talaaq in one sitting was a pre-Islamic practice which was not validated by the Quran. The second khalifa Hazrat Umar invoked this pre-Islamic form of divorce and made it irrevocable to punish men who would cheat their second wife they wanted to marry. They would claim that they had divorced their first wife by pronouncing “talaaq” thrice knowing that it was not a valid divorce.

This is not the first time that a High Court has held triple talaaq to be invalid in law. In Rukia Khatun’s case, the Division Bench of the Gauhati High Court at para 13 held that the correct law of talaaq, as ordained by Quran, is: (i) that “talaaq” must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, “talaaq” may be effected.

Upholding these observations of the Gauhati High Court, the Supreme Court in the case of Shamim Ara v/s State of UP held: “A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaaq by the husband on the wife on the date of filing of the written statement in the court.”

Triple talaaq is neither constitutional nor a Quranic form of divorce. The observations of the Allahabad High Court would be before the Supreme Court for consideration in the writ petition filed by Shayara Bano strengthening the petitioner’s case.

The author is the Director, Centre for the Study of Society and Secularism, Mumbai.