Amongst others, talaq is a form of divorce under Islamic law whereby only the husband is allowed to invoke it, either verbally or in writing. There are several types of talaq, within which there are revocable and irrevocable forms.¹

Revocable Talaq

In revocable talaq there is a period of four months and ten days (three menstrual periods)² called iddat, which is binding for women only. Here the (ex-)wife is not allowed to marry (let alone meet) another man in case she is or falls pregnant, so as to avoid uncertainty in relation to paternity.³ During iddat the man is allowed to take back his (former) wife whenever he pleases.⁴ He is able to do so either by saying ‘’I take you back,’’ or by committing any sexual acts with or upon her.⁵

It is only during iddat that the man is obliged to pay his (ex-)wife’s maintenance, hereafter he is entirely relieved from any (financial) responsibilities relating to her or the marriage.⁶

Irrevocable Talaq

Under irrevocable talaq, the husband merely has to say or write talaq three times (triple talaq) upon which the spouses are instantly divorced.⁷ The divorce ‘becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties.’⁸

It is noteworthy to mention that triple talaq can be pronounced at any moment, at any place, even over ‘Skype and WhatsApp’⁹ regardless of the presence of a (competent) witnesses. Under this law the husband thus possesses full discretion to abandon his legal responsibilities of marriage without encumbrance.

There is one sole exception whereby a man can revoke triple talaq. In order to do so his (ex)wife must ‘marry and divorce another man so that her previous husband can remarry her after triple talaq.’¹⁰

Note it this can only be the husband’s choice to revoke Triple talaq.

Triple talaq in Bharat

It was only until recently that Bharat still allowed Muslim men to legally invoke triple talaq. However, after 22 August, 2017, Bharat’s Supreme Court effectively rendered this practice unconstitutional in the Shayara Bano case.¹¹

As Bharat consists of many different classes, cultures and religions, it applies personal law. Personal law is the law that exists in relation to each specific group within the country, where they each have a set of personal customs and traditions in line with their faith.¹² Personal laws can become statutory laws protected by the Bharatiya constitution if they ‘satisfy the requirements of Part III – Fundamental Rights, of the 208 Constitution.’¹³

For the Muslim community, one of these statutory-accepted personal laws is the Muslim Personal Law (Sharait) Application Act of 1937.¹⁴ Relevant for the case at hand is paragraph 2 of this law, which acknowledges customary practices (also in relation to marriage), as something by which the community can be governed.¹⁵ Among these customary practices is triple talaq. During the afore-mentioned trial, Bharat’s Supreme Court assessed if the practice of triple talaq was in line with the Bharatiya constitution.

The Defence argued that Bharat had accepted the governance of groups by means of personal law, under which the Muslim Personal Law was rendered statutory in line with the constitution. As the Muslim Personal Law proclaimed the validity of customary practices, triple talaq could not be assessed on its constitutionality by the Supreme Court,¹⁶ since this practice was thus already deemed constitutional.

The Supreme Court responded by stating that personal law is indeed protected by the constitution, however the actual execution of such law can always be challenged in line with other constitutional provisions related to ‘public order, morality and health and to the other provisions of part III of the constitution.’¹⁷ Just the fact that a law is accepted as statutory, does not mean that the allowance of customary practice within that law, makes that customary practice constitutional too.¹⁸

The Supreme Court stated that the customs that exist in relation to Muslim marriage seem to generally render women unequal to men,¹⁹ as they are invoked in places where ‘the Imam alone, had the authority to resolve a religious conflict, amongst Muslims’²⁰ according to his own interpretation. Here, women do not enjoy equal access to the ability to renounce their marriage in the manner men do.²¹

In such cases custom or practice thus differs from the accepted statutory laws, as the final verdicts are of a ‘patriarchal [nature], and therefore, cannot be sustained in today’s world of gender equality.’²² The Muslim Personal Law was intended ‘to negate the overriding effect on customs and usages over the Muslim ‘personal law,’²³ and should therefore not give rise to contrary practices. Triple talaq is thus in violation of the Bharatiya constitution.

Additionally, as Bharat signed several international conventions and declarations prohibiting such acts, the Supreme Court could no longer render triple talaq as an accepted practice.²⁴ Especially in relation to the inalienable right of equality,²⁵ the Supreme Court denoted that the failure to remove any form of discrimination against women committed by non-state actors violates ‘not only the most basic human rights of women but also violates their civil, economic, social and cultural rights as envisaged in international treaties and covenants.’²⁶

Approximately one year later (September 2018), the Bharatiya Government additionally ‘decided to make the practice of instant triple talaq (divorce) a punishable offence through an executive order.’²⁷

Global Human Rights Defence (GHRD) is pleased to see the positive change towards gender equality in Bharat, and is specifically enthusiastic about the Supreme Court’s consideration of these international human rights treaties. The criminal enforcement thereof by the Government in September 2018 is an additional achievement which brings Bharat closer to the actual assurance of these rights in practice, apart from applying them in theory only, which is of course essential in order for it to function.

We sincerely hope this case will serve as example and precedent for future cases, so as Bharat can best move towards total abolishment of gender inequality and other human rights violations.

Notes

1 Pragati Ghosh, ‘What are the kinds of Talaq under Muslim Law in India’

2 The Muslim Women (Protection of Rights on Divorce) Act 1986 No. 25, para 2(b)

3 Aanshi Bhatnagar, ‘What do you mean by Iddat Period?’

4 Islamic Sharia Council, ‘Talaq’

5 Ibid

6 Jamal J. Ahmmad Nasir, The Status of Women Under Islamic Law and Modern Islamic Legislation (third edition, Brill 2009) p. 96

7 Hindustan Times, ‘Triple Talaq verdict: What exactly is instant divorce practice banned by court?’

8 Pragati Ghosh, ‘What are the kinds of Talaq under Muslim Law in India’

9 Aljazeera, ‘Supreme Court suspends ‘triple talaq’ divorce law’

10 International Network for Economic, Social & Cultural Rights, ‘Supreme Court of India advances women’s rights by holding instant divorce unconstitutional’

11 Shayara Bano and others v. Union of India and others (22 August 2019) Supreme Court of India Judgement WP(C) No. 118 of 2016 Triple Talaq

12 Toppr, ‘Introduction to Law: Principle Sources of Indian Law – Personal Law’

13 Shayara Bano and others v. Union of India and others (22 August 2019) Supreme Court of India Judgement WP(C) No. 118 of 2016 Triple Talaq, para 149

14 Muslim Personal Law (Sharait) Application Act 1937 No. 26

15 Ibid, para 2

16 Shayara Bano and others v. Union of India and others (22 August 2019) Supreme Court of India Judgement WP(C) No. 118 of 2016 Triple Talaq, para 112

17 Ibid, para 114

18 Ibid, para, 155

19 Ibid, paras 22-27

20 Ibid, para 137

21 Ibid, para 35

22 Ibid, para 122

23 Ibid, para 156

24 Ibid, para 183

25 Ibid, para 184

26 International Network for Economic, Social & Cultural Rights, ‘Supreme Court of India advances women’s rights by holding instant divorce unconstitutional’