Supreme Court deliberates on whether personal laws take precedence over fundamental rights.
Earlier this month Amreen Begum from Meerut made news for having pronounced ‘talaq, talaq, talaq’ on her husband who left her and two kids stranded one evening. According to her, knowing that it was only a matter of time before her husband divorced her, she decided to take matters in her own hands and do it.
Pertaining to the incident that has keep the triple talaq debate raging in news and social media, Sunieta Ojha, partner at TRS Law Offices, says, “As far as Muslim marriage and divorce are concerned, they are governed by private law. There has to be a right for it to be exercised. The law recognises a man pronouncing triple talaq but the same is not the case for a woman.”
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“The lady needs to ask for khula and that has to be granted to her. In this case (Amreen Begum) has to seek khula, until then her marriage is in subsistence.”
Advocate Ejaz Maqbol, Advocate on Record, Supreme Court of India, who is representing the All India Muslim Personal Law Board, says, “In the case mentioned (Amreen Begum), there is no legal sanctity of a woman uttering the words ‘talaq’. The woman has recourse to divorce but has to go through the right channel. The woman will have to approach the qazi or can approach the courts under The Dissolution Of The Muslim Marriages Act, 1939. She has no unilateral right to divorce her husband though.”
These insights bring us to the question of how marriage and divorce is viewed under the Muslim Personal Law. Jameela Nishat, founder of Shaheen Collective, a woman’s organisation which works towards putting an end to domestic and social violence against women says,“Marriage is a contract amongst Muslims and it can be broken any time. Triple talaq is a right given to the man by which he can break the marriage unilaterally and abruptly at any time.”
“Historically this wasn’t practised much but there has been a surge of triple talaq cases in the last three decades.”
Talaq-E-Bidat is the practise, which gives the man the right to divorce his wife by uttering ‘talaq’ three times without waiting for her consent on the matter. This can be done in one sitting or spread across a period of time.
It was the Allahabad High Court that held during a recent case that the concept of triple talaq is bad in law, as fundamental laws cannot be violated in the name of any personal laws. While the apex court has dealt with cases where there has been a conflict of interest between fundamental rights and personal laws, there have been various interpretations that the court has adopted.
Hence the court has not been uniform in its stand on this fundamental conflict between fundamental rights and personal laws.
Professor Tahir Mahmood, in his foreword for the report ‘No More – Talaq Talaq Talaq’ writes, “While the law on divorce by men is in misuse, that on divorce by women is in disuse. The very humanitarian concept of khula has been thrown into the dustbin, giving an absolutely wrong impression that putting an end to a marriage is an exclusive privilege of men. Restoration of the original unadulterated law, on both talaq and khula, is indeed a pressing need of the hour.’
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In a survey conducted by the Bhartiya Muslim Mahila Andolan (BMMA), in August 2015, 4710 Muslim women were interviewed and asked for their views on triple talaq. More than 92 per cent of them were in favour of ending the practise.
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Times such as these are usually potential inflection points from which future trajectories may emerge – but only time has the answer to whether the potential to change will be realised. Burning social issues such as universal suffrage, abolition of the practice of sati etc. all went through these processes to become what they are today – maybe this is the time for triple talaq.