This Article is written by Harsimar Kaur, a Second-Year law student of Lloyd Law College

"Women's rights are human rights, and the violation of those rights under the guise of religion or tradition must not be tolerated." – Hillary Clinton.[1]

Introduction:

The aforementioned quote encapsulates the fundamental nature of the continuing fight for Muslim women’s rights in India, especially regarding the issue of triple talaq. For many years, the custom of triple talaq, also known as talaq-e-bid'ah, allowed Muslim men to separate their ladies directly by basically rehashing the word" talaq" three times. This practice rendered numerous women vulnerable in various aspects—socially, economically, and psychologically—while depriving them of any legal protections or rights. Following years of advocacy, legal disputes, and social movements, the Supreme Court of India took action in 2017 by ruling the practice unconstitutional. In the wake of this ruling, the Muslim Women (Protection of Rights on Marriage) Act, 2019, rendered the practice illegal, representing a notable achievement in the pursuit of gender justice.

This article examines the historical context, legal disputes, and social ramifications of triple talaq, while also addressing recent advancements, including remarks from the Supreme Court regarding the wider concerns of personal law reform.

The Historical Background of Triple Talaq:

The practice of triple talaq is grounded in the Islamic legal traditions of specific schools of thought, notably the Hanafi school, which is prevalent in South Asia.[2] This method of divorce permits a Muslim man to terminate his marriage to his wife immediately by declaring "talaq" three times, whether spoken or written. The Quran outlines a more systematic and thoughtful approach to divorce, referred to as talaq-e-Ahsan, which includes a three-month waiting period that allows for potential reconciliation efforts to occur.

In nations such as Egypt, Bangladesh, Pakistan, and Tunisia, the practice of triple talaq has either been completely abolished or significantly limited; however, in India, it has persisted under the framework of Muslim Personal Law. Muslim Personal Law regulates various facets of family life, including marriage, divorce, and inheritance, specifically for Indian Muslims, and operates independently from the secular laws that apply to other communities.[3] Consequently, the practice of triple talaq occurred without any legal avenues for women, resulting in a lack of support and protection for them after divorce. This circumstance resulted in extensive gender discrimination within the Muslim community, with women being disproportionately impacted by this unjust practice.

Legal Challenges and the Pivotal Case of Shayara Bano:

The shift commenced in 2016, when Shayara Bano, a Muslim woman hailing from Uttarakhand, contested the legitimacy of triple talaq before the Supreme Court.[4] She contended that the practice infringed upon her fundamental rights as protected by the Indian Constitution. The case of Shayara Bano was not unique; countless Muslim women had endured hardships as a result of this practice. However, her brave legal fight initiated a broader movement aimed at reform.

In her petition, Bano argued that the practice of triple talaq contravenes the Constitution, specifically infringing upon Article 14, which ensures the right to equality; Article 15, which prohibits discrimination based on religion, race, caste, sex, or place of birth; and Article 21, which guarantees the right to life and personal liberty. Her legal representatives contended that triple talaq lacks endorsement from the Quran and characterized the practice as both capricious and discriminatory.

On August 22, 2017, the Supreme Court of India issued a landmark ruling with a majority decision of 3-2. The court determined that triple talaq was unconstitutional, infringing upon the fundamental rights of Muslim women. In a noteworthy statement, Justice Kurian Joseph noted that What is detrimental in theology is detrimental in law.[5] The court further underscored that the practice was "manifestly arbitrary" and failed to withstand constitutional examination.

The Rationale of the Supreme Court:

The judges who ruled triple talaq as unconstitutional presented a range of compelling arguments. Justice Rohinton Nariman, a member of the majority opinion, stated that "Triple talaq is not an essential aspect of Islamic religious practice," and therefore does not receive protection under Article 25, which ensures the right to religious freedom. The decision marked a significant milestone not only in the annals of legal history but also in the advancement of gender justice in India.

Nevertheless, the ruling, although important, did not adequately resolve the issue in its entirety. While the court ruled that triple talaq is unconstitutional, it remains essential to establish a legislative framework that criminalizes this practice and provides legal safeguards for women. Thus, the battle held on, eventually driving the sanctioning of the Muslim Women (Protection of Rights on Marriage) Act in 2019.

Fresh Significant Cases Contributing to the Repeal of Triple Talaq:

Before and following the significant Shayara Bano case, a multitude of legal controversies and desires significantly told the converse girding triadic talaq and the rights of Muslim women. The following are several vital cases that were necessary in advancing the reform movement.

1. Shamim Ara v. State of UP (2002):

In this significant ruling, the Supreme Court determined that a simple protestation of" talaq" by a Muslim hubby doesn't serve to terminate a marriage unless there are licit grounds and sweats made towards conciliation. The Court underlined that the process of divorce in agreement with Muslim law must cleave to principles of fairness and reasonableness. This ruling established a foundation for posterior challenges to the practice of triadic talaq by affirming that arbitrary divorces were inconsistent with both Islamic principles and Indian law.[6]

2. Dania Latifi v. Union of India (2001):

While not explicitly addressing triadic talaq, this case examined the reservations of the Muslim Women (Protection of Rights on Divorce) Act, 1986. It stressed the necessity for enhanced safeguards for separated Muslim women.[7] The case contributed to the ongoing converse regarding particular law reforms and stressed the difference endured by Muslim women, thereby paving the way for posterior legal challenges to the practice of triadic talaq.

3. Ishrat Jahan v. Union of India (2017):

Ishrat Jahan, who endured the injustice of triadic talaq communicated via telephone, was among the leaders in the significant Shayara Bano case. Her experience underlined the capricious and inequitable nature of the practice, as her hubby ended their marriage without any previous notice or chance for conciliation. By presenting her case to the Supreme Court, Jahan significantly contributed to pressing the challenges faced by women affected by instant divorce and amped the call for legal reform.[8]

4. Gulshan Parveen v. Union of India (2017):

In the Shayara Bano case, another supplicant, Gulshan Parveen, endured divorce when her hubby dispatched a letter that included the term talaq repeated three times. Her solicitation queried the constitutionality of triadic talaq, asserting that it infringed upon the abecedarian rights elevated in the Indian Constitution.[9] Parveen's situation stressed the necessity for legal measures to address the abuse of similar arbitrary practices, strengthening the case for judicial intervention.

5. Noor Jahan v. State of West Bengal (2022):

The case of Noor Jahan garnered significant attention when her hubby employed triadic talaq through WhatsApp as a means to disjoin her. This case, arising posterior to the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, stressed the ongoing exploitation of contemporary communication technologies to sustain archaic customs.[10] Despite her hubby facing execution under the 2019 law, the case stressed the ongoing challenge of conforming to societal morals and achieving justice for women, indeed in light of legislative progress.

6. Afsana Khan v. Union of India (2023):

The case of Afsana Khan surfaced in 2023 as one of the original cases to exhaustively use the reservations outlined in the Muslim Women (Protection of Rights on Marriage) Act, 2019. After her hubby disassociated her through triadic talaq during a family argument, Khan looked for justice under the new law. Her situation redounded in her hubby's arrest and showed how the law helps cover Muslim women from illegal divorce. It strengthened the law's part in stopping illegal conditioning and promoting responsibility.

These cases illustrate the patient hunt for justice encountered by Muslim women in India. Each legal battle, whether directly or laterally associated with triadic talaq, played a significant part in impacting the wider converse on particular law reforms.[11] Although the Shayara Bano ruling marked a critical juncture, the collaborative effect of these cases advanced the movement for gender justice and eased the establishment of a more just legal frame.

The Muslim Women (Protection of Rights on Marriage) Act, 2019:

In July 2019, the government legislated the Muslim Women (Protection of Rights on Marriage) Act[12], extensively known as the Triple Talaq Law, to give legal authority to the Supreme Court's ruling and to guarantee that the practice of triadic talaq would not persist in any manner. The legislation rendered the protestation of triadic talaq in any manner — be it verbal, written, or digital — unlawful and null. Also, the act rendered the practice illegal, assessing penalties that could include a captivity judgment of over three times along with a financial forfeiture. The legislation also encompassed measures aimed at securing women's rights. It permitted them to request fiscal support from their consorts and guaranteed that they would maintain guardianship of their dependent children. These regulations handed a degree of profitability and social security to women who had preliminarily been deprived of any safeguards under Muslim Personal Law.

Nonetheless, the legislation faced significant contestation. Detractors contended that making the practice a felonious offense could unfairly impact Muslim men, performing in unwarranted incarceration. They further argued that the legislation could potentially serve as a political instrument aimed at the Muslim community. Again, proponents contended that the absence of felonious penalties would allow triadic talaq to endure in some capacity, notwithstanding the Supreme Court's decision.

The Societal Goods of the Prohibition on Triple Talaq:

The enactment of the Muslim Women (Protection of Rights on Marriage) Act was celebrated as a significant achievement for gender equivalency; still, the trip towards social metamorphosis continues to be grueling. Notwithstanding the legal frame, multitudinous Muslim women continue to encounter difficulties in claiming their rights within a patriarchal societal structure. In traditional families and communities, women who pursue justice or challenge their spouse's sayings constantly face social rejection or are constrained into silence.

A significant challenge is the inadequate mindfulness among Muslim women regarding their legal rights. Multitudinous women don't realize that triple talaq has been banned and that they have the option to pursue legal remedies through the judicial system.[13] Likewise, the fiscal reliance on their consorts hinders multitudinous women from seeking legal expedient, as they're aware of the implicit loss of profitable support or the possibility of encountering social acceptance.

The enterprise accepted by civil society associations to inform women about their rights and offer legal backing has played a pivotal part in empowering women to address these challenges effectively. Nonetheless, societal metamorphosis requires time, and the legal triumph represents simply one aspect of a broader struggle to strike the deeply embedded patriarchy that has enabled practices similar to triadic talaq to endure for an extended period.

Recent adverts and Progressions from the Supreme Court:

Following the 2017 ruling and the enactment of the 2019 legislation, the Supreme Court has maintained its involvement in matters concerning particular laws and gender justice. Recent affirmations from the Court have underlined the necessity for comprehensive reforms in particular laws, extending beyond Islam to encompass all religious communities in India.

In August 2023, Chief Justice D.Y. Chandrachud emphasized the necessity of harmonizing particular laws with indigenous principles, especially regarding the issue of gender equivalency. He stated that" No particular law can stamp the abecedarian rights guaranteed by the Constitution." This comment has significant counteraccusations, not only for Muslim law but also for particular laws governing other communities, similar to Hindus and Christians.[14]

In September 2023, the Supreme Court reaffirmed its position on the necessity of particular law reforms, specifically fastening on matters similar to polygamy, heritage rights, and the difference in divorce practices. Legal professionals and lawyers have praised these reflections, prompting the perpetration of more expansive reforms in particular laws to guarantee gender equivalency for all women, irrespective of their religious confederations.

Muslim women activists have been especially assertive in championing fresh reforms. Although the elimination of triadic talaq is regarded as a significant achievement, they contend that other discriminative practices, including polygamy and inequitable heritage rights, persist in violating the rights of Muslim women. The Supreme Court has honoured these enterprises and is anticipated to address these matters in forthcoming sounds, which may lead to further reforms in Muslim particular law.

The Crossroad of Polygamy and Heritage: Arising Legal Challenges:

As conversations regarding particular law reforms progress, the focus has shifted to fresh enterprises that disproportionately impact Muslim women, especially polygamy and heritage rights. While polygamy isn't as current as the practice of triadic talaq, it continues to be permitted under Muslim law, enabling men to take up to four women. Some activists believe that this practice should also be ended because it goes against the principle of gender equivalency stated in the Constitution.

Heritage rights represent another significant issue. According to Muslim particular law, women are entitled to admit only fifty percent of the heritage that men gain. The disproportionate allocation of property and wealth places women in a vulnerable position, particularly when coupled with the fiscal difficulties associated with divorce or the loss of a partner. Lawyers contend that there's a pressing need to reform heritage laws to guarantee that women admit indifferent portions of family means. [15]

The recent reflections made by the Supreme Court regarding particular law reforms have inseminated sanguinity among activists and legal professionals who support the perpetration of a Livery Civil law (UCC). This proposed UCC aims to displant religious particular laws with a unified frame of temporal regulations that would oversee marriage, divorce, heritage, and colourful family-related matters, and is regarded by some as an implicit resolution to these challenges. Nonetheless, some contend that the preface of a UCC might undermine religious freedom and dwindle artistic diversity.

Final Thoughts: The Extended Journey Ahead:

The battle against triple talaq symbolizes a larger movement for women's rights in India. The Supreme Court's ruling in 2017, along with the enactment of the Muslim Women (Protection of Rights on Marriage) Act in 2019, marks significant milestones in the pursuit of gender equality. However, these represent merely the initial stages in a more extensive journey towards achieving genuine equality for Muslim women.

The elimination of triple talaq has granted women greater empowerment and legal safeguards; however, societal transformation is a gradual process. Persistently ingrained patriarchal values, economic reliance, and social stigma remain substantial obstacles for Muslim women in their pursuit of justice. Furthermore, the discussion should progress beyond the issue of triple talaq to encompass other discriminatory practices within personal law, including polygamy and inequitable inheritance rights.

The recent involvement of the Supreme Court in personal law reforms represents a promising development, instilling optimism for continued advancements in the pursuit of gender equality. As India navigates these intricate matters, the objective should be to align personal laws with the constitutional principles of justice, equality, and dignity for every citizen.

The struggle for the rights of Muslim women continues, yet the determination exhibited by individuals such as Shayara Bano serves as a powerful reminder that change is not merely a possibility; it is an inevitability.

[1] Feryal M. Cherif,' Culture, Rights, and Norms: Women’s Rights Reform in Muslim Countries'(2010) JSTOR < https://www.jstor.org/stable/10.1017/s0022381610000587 > accessed 04 September 2024

[2] By Moin Qazi, "Tracing the history of Triple Talaq to look to the future" < https://qrius.com/history-triple-talaq-future/ >accessed 04 September 2024

[3] Oishika Banerji, "Muslim Personal Law (Shariat) Act, 1937" < https://blog.ipleaders.in/the-muslim-personal-law-shariat-act-1937/ >accessed 04 September 2024

[4] Indian Kanoon, "Shayara Bano vs Union Of India And Ors. Ministry Of Women on 22 August 2017" < https://indiankanoon.org/doc/115701246/ > accessed 05 September 2024

[5] Justice Kurian Joseph, Dristi Judiciary < Shayara Bano v. Union of India and Ors. AIR 2017 SC 4609 (drishtijudiciary.com) > accessed 05 September 2024

[6] Indian Kanoon, "Shamim Ara vs State Of U.P. & Anr on 1 October 2002" < https://indiankanoon.org/doc/332673/ >accessed 05 September 2024

[7] Indian Kanoon, "Danial Latifi & Anr vs Union Of India on 28 September, 2001" < https://indiankanoon.org/doc/410660/ > accessed 05 September 2024

[8] Patna High Court - Orders, "Ishrat Jahan & Ors vs The Union Of India & Ors on 17 July, 2017" < https://indiankanoon.org/doc/75918117/ > accessed 06 September 2024

[9] SUPREME COURT OF INDIA “Gulshan Parveen v. Union of India” < libreoffice (sci.gov.in) > accessed 06 September 2024

[10] Calcutta High Court (Appellate Side), "Noor Mohammad vs The State Of West Bengal & Ors on 5 July, 2023" < https://indiankanoon.org/doc/178147248/ > accessed 06 September 2024

[11] Patna High Court - Orders ," Afsana Khatoon vs The Union Of India on 4 July, 2023" < https://indiankanoon.org/doc/165810248/ > accessed 06 September 2024

[12] THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019, < https://www.indiacode.nic.in/bitstream/123456789/11564/1/a2019-20.pdf > accessed 06 September 2024

[13] Lawchef, "Triple Talaq in India" < https://www.lawchef.com/blogs/triple-talaq > accessed 06 September 2024

[14] AIR , "Chief Justice of India D. Y. Chandrachud emphasises on pivotal role of technology in transforming criminal justice system" < https://www.newsonair.gov.in/chief-justice-of-india-d-y-chandrachud-emphasises-on-pivotal-role-of-technology-in-transforming-criminal-justice-system/ > accessed 06 September 2024

[15]Feryal M. Cherif, “Culture, Rights, and Norms: Women’s Rights Reform in Muslim Countries'(2010) JSTOR” <https://www.jstor.org/stable/10.1017/s0022381610000587> accessed 06 September 2024