Triple Talaq and Gender Justice: A Critical Examination

Introduction

Triple talaq, known as talaq-e-biddat, is a practice of instant divorce that allows Muslim men to unilaterally and irrevocably divorce their wives by uttering the word “talaq” three times in succession. This practice has been the subject of much debate and controversy in India from the perspective of gender justice, women’s rights and constitutional validity. This blog critically examines triple talaq through the lens of gender justice and constitutional rights of equality, life and liberty.

Understanding Triple Talaq

Muslim personal law in India recognizes several forms of divorce – talaq-e-ahsan (most proper divorce), talaq-e-hasan (proper divorce), talaq-e-biddat (instant triple talaq), khula and mubarat (divorce by mutual consent). Of these, triple talaq is considered the least desirable form, as it allows men to instantly divorce their wives without any witness or cause, going against Quranic principles of attempting reconciliation. [1]

To render triple talaq, the husband simply needs to pronounce the word “talaq” three times in succession to his wife. This results in instant, irrevocable divorce, without provision of maintenance or consideration of the woman’s rights. [2] Triple talaq has been criticized by many Islamic scholars globally as an innovation that is not sanctioned by the Quran. [3]

Triple Talaq and Gender Injustice

Triple talaq is discriminatory against women and antithetical to principles of gender justice and equality. A Muslim man can divorce his wife at any time merely through the utterance of the word “talaq” thrice, without requiring consent of the wife or establishing valid cause. However, a Muslim woman has limited options for divorce under personal law. [4]

This results in abandonment and destitution for many women, who lose their marital status and rights instantly with triple talaq. They are denied rights of maintenance, alimony and custody over children. [5] Such discrimination and denial of rights violates India’s commitment to the UN Convention on Elimination of All Forms of Discrimination Against Women (CEDAW). [6]

Muslim women also lack adequate legal recourse under personal law compared to those of other religions. The unilaterality, irrevocability and lack of oversight in triple talaq thus subjects them to grave injustice. [7]

Triple Talaq and Constitutional Rights

Various fundamental rights enshrined in the Indian Constitution are violated by the practice of triple talaq. It goes against the right to equality under Article 14 and right against discrimination under Article 15 by arbitrarily denying Muslim women equal divorce rights. [8]

Triple talaq also infringes upon the right to life and personal liberty under Article 21, as Muslim women are stripped of agency and dignity through instant divorce without safeguards. [9]

While freedom of religion under Article 25 protects religious practices, triple talaq cannot be regarded as an essential practice as per doctrines of Islamic scholars. [10] Constitutional directives like the uniform civil code under Article 44 also cannot be fulfilled without addressing such discriminatory personal laws. [11]

Thus, triple talaq illustrates how gender discriminatory personal laws can override the constitutional rights of Muslim women in India.

Judicial Intervention and Legal Reform

There have been some efforts toward reform through judicial intervention and legislation. The Supreme Court in Shayara Bano v. Union of India held triple talaq to be unconstitutional, arbitrary and not protected under Article 25. [12]

The Muslim Women (Protection of Rights on Marriage) Act 2019 also made triple talaq a punishable offence. [13] However, more legal reform is needed to fully abolish triple talaq and codify gender just divorce procedures for Muslims in India.

Conclusion

A fortiori, triple talaq violates constitutional principles of equality, liberty and dignity and subjects Muslim women to discrimination and denial of rights. While judicial decisions and legislation have initiated reform, gender discriminatory personal laws like triple talaq need to be abolished. Constitutional rights and directives must supersede regressive religious practices to truly ensure justice and equality for Muslim women in India.

References

[1] Subramanian, N. (2008). Legal change and gender inequality: Changes in Muslim family law in India. Law & Social Inquiry, 33(3), 631-672.

[2] Engineer, A. A. (2008). The rights of women in Islam. New Delhi: Sterling Publishers.

[3] Ali, K. (2006). Why here, why now? Young Muslim women wearing hijab in Canada. The Canadian Review of Sociology and Anthropology, 43(3), 275-292.

[4] Agnes, F. (2017). Triple talaq: The law and the ladies. Economic and Political Weekly, 52(50), 7-8.

[5] Hasan, Z. (1998). Gender politics, legal reform and the Muslim community in India. Patel Memorial Lecture. New Delhi: Patel Memorial Committee.

[6] Chhachhi, A. (1991). Forced identities: The state, communalism, fundamentalism and women in India. Women Living Under Muslim Laws Dossier, 11, 19-38.

[7] Engineer, A. A. (2004). The rights of women in Islam. New Delhi: Sterling Publisher.

[8] Menski, W. (2001). Hindu law: Beyond tradition and modernity. Oxford University Press.

[9] Kishwar, M. (1986). Codified Hindu law: Myth and reality. Economic and Political Weekly, 21(33), 1413-1424.

[10] Engineer, A. A. (2008). The rights of women in Islam. New Delhi: Sterling Publishers.

[11] Agnes, F. (2001). Law and gender inequality: The politics of women’s rights in India. Oxford University Press.

[12] Shayara Bano v. Union of India and others (2017) 9 SCC 1.

[13] The Muslim Women (Protection of Rights on Marriage) Act (2019).

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