Hindustan Times - Dec 09, 2016
Triple talaq is neither constitutional nor a Quranic form of divorce
by Irfan Engineer
The observations of Allahbad High Court on Thursday stating that the Muslim personal law on triple talaq 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 talaq enabling Muslim men to unilaterally divorce their wives by uttering the word “talaq” thrice, its observations are a tight slap on Muslim Personal Law Board, which had claimed in its affidavit before the Supreme Court in a writ petition filed by Shayara Bano case that the court had no jurisdiction to hold triple talaq as invalid from of divorce and claiming protection of Article 25 of the Constitution, under which every person is entitled to freely profess, practice and propagate religion.
The right granted under Article 25 is subject to other provisions of the chapter on fundamental rights in the Constitution. Right to practice religion is therefore subject to Article 14 — right to gender equality.
Severing marital relations instantly by pronouncing the word “talaq” thrice is not only anti-constitutional, it is also anti-Quranic. 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 talaq 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 “talaq” thrice knowing that it was not valid divorce.
This is not the first time that a high court has held triple talaq to be invalid in law. In Rukia Khatun’s case, the division bench of Gauhati High Court at para 13 held that the correct law of talaq, as ordained by Quran, is: (i) that “talaq” 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, “talaq” 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 talaq by the husband on the wife on the date of filing of the written statement in the court”.
Triple talaq is neither constitutional nor a Quranic form of divorce. 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.
Irfan Engineer is director, Centre for Study of Society and Secularism, Mumbai