There is a great deal of hurry by the hindutva brigade to get this triple talaq bill passed in the parliament which according to them is meant to liberate Muslim women. The person who is leading this fight for Muslim women’s liberalization is a man who abandoned his wife for 50 years without divorcing her kept her hanging and even tried to hide her very existence. He is accused of using government machinery to snoop on a girl whom he was besotted with; His right hand is accused of raping and murdering women and her husband in staged encounter. Those people who were involved in or supported or remained silent on the genocide of Innocent Muslims in Gujarat riots in 2002 where thousands of Muslim women were raped, burnt and killed where even pregnant women were not spared are the same group who are now the champions of this bill.
Against this backdrop it is clear that there is no credibility left of those people who are proposing this bill and there is some hidden agenda behind this sudden haste to fight for the rights of Muslim women. It is evident that the intention is not good, the agenda seems to be to use this bill as a means to encroach into the religious freedom of minorities using this as an excuse in their endeavor to implement uniform civil code where Hindu majority want to force its culture and its rules on Muslims as a means to “Muslim bashing” which is the main motive of hindutva.
Hindutva is not meant to show love for any religion rather it is a short form for minority (especially Muslim) bashing. The very existence of hindutva is based upon intolerance and hate against Muslims and that’s the reason why there is an attempt to find out ways and means or excuses for Muslim bashing. Over the course of last 3 years when hindutva has gained prominence under the leadership of BJP / RSS government in power they have got a shot in the arm and are finding new excuses every other day to harass Muslims be it beef ban, love jihad, uniform civil code, triple-talaq, proclaiming bharat-mata / vande-mataram etc.
Needless to say that triple-talaq is unislamic act and any number of talaq’s under one instance or sitting is considered as just one talaq under Islamic law which is the case in most countries where law is based upon Islamic Shariah. As marriages and divorce comes under purview of civil laws & as per article 14 of the Indian constitution to make separate law for something related to process of divorce seems to be infringement on the religious freedom of Muslims. To have provisions in the bill for making triple talaq as a criminal and non bailable offense seems to be a step gone bit too far as we already have several laws to safeguard
“…Article 14 of the Indian Constitution grants “equal protection of law” to all its citizens. But when it comes to personal issues (marriage, divorce, inheritance, custody of children,etc), Muslims in India are governed by the Muslim Personal Law which came into force in 1937….”
Provisions of the triple-talaq bill are summarized as below:
Husband who resorts to instant triple talaq can be jailed for up to three years and be fined. Instant triple talaq in any form — oral, written or electronic form — has been banned and made a cognizable offence. The bill also provides for a subsistence allowance of a harassed Muslim woman and her dependent children and the custodial rights of minor children.
Why Indian triple-talaq bill is irrelevant or even harmful
As seen from the provisions of the bill there seems to be little justification or logic behind this exercise and it clearly ventures into the territory of religious freedom because of following reasons:
- If triple-talaq is invalid then what is the reason for 3 years jail term as provisioned in this bill ? why punish someone for crime which never happened ?
- The bill makes triple-talaq cognizable and non-bailable offense so If the husband is put to jail and there is no divorce then who will take care of the family when the earning member is in jail ?
- Three years later when the husband returns from jail will he be happy to lead a loving relationship with his wife ?
- If triple talaq has been declared invalid in Islamic countries and this is cited in support of this bill then is it a criminal offence in those countries ?
- Triple-talaq is counted as single talaq in one instance even in Islamic countries which is in accordance of Islamic scriptures and is not totally negated as people would like to believe.
- As per Islamic methodology of marriage, Mahar (dowry) has to be given by groom to his bride at the time of marriage. That’s the reason why there is no provision of maintenance to ex-wife after divorce as per Islamic law, though the husband is free to offer her any financial support out of his own goodwill. Clearly this bill talks about maintenance so it goes against the Islamic law for marriage and divorce.
- The biological father is always responsible for the financial support and maintenance of his children with or without divorce – so it makes no sense to make it special provision of law when this is already part of existing laws.
- Custody of minor children was already given to Muslim women as per Islamic law until she remarries (after which the provisions of this law is no longer applicable). So as per Islamic law already women get custody of minor child after divorce, even as per existing civil laws women gets right of custody of minor child after divorce so to add it to triple-talaq bill is nothing but an attempt to confuse and gain acceptance among masses by portraying as if it is a great step in direction of safeguarding rights of women and children whereas problem is not in existing laws rather problem is in implementation of laws.
Based upon the above it is clear that this law is going to be misused similar to Article 498a of the constitution where even the court has accepted that more than 70% of cases filed against that law were false. In fact 498a is used more as a tool to settle scores in failed marriages rather than for protecting rights of women. So is the case with triple talaq bill.
If this law is about gender equality then there are many laws existing already which have failed to provide gender justice and equality – below mentioned are few examples.
- Child marriage act: as per Census 2011 90 lacs non-muslim children got married
- Dowry Act: 80% of dowry cases are of non-muslims.
- Abandoned Women: 2011 census out of 23 lacs women, 20 lacs hindu women 2.08 are muslim.
We already have enough laws however reform needs to come from within the society, it can’t be just enforced through half baked laws as it will do more damage than good.
Triple Talaq in one instance / sitting was counted as one even during era of prophet PBUH
What Quran States:
The Quran sets certain norms to execute divorce, just as there are norms to sanctify marriage:
Those who intend to divorce their wives shall wait four months; if they change their minds and reconcile, then God is forgiver, merciful. If they go through with the divorce, then God is hearer, knower. (2:226-227)
It continues to say:
And the divorced women must wait for three menstrual courses… and their husbands are fully entitled to take them back (as their wives) during this waiting period, if they desire reconciliation. (2:228)
Elsewhere, it further decrees:
Divorce may be pronounced twice; then the wife may either be kept back in fairness or be allowed to separate in fairness. Then, if the husband divorces his wife (for the third time), she shall not remain lawful for him after this divorce, unless she marries another husband… (2:229-230)
Hadith Narrations w.r.t triple-talaq
According to a report, Abdullah bin Abbas, a companion of the Prophet said that triple-talaq in one sitting was considered as only one talaq during the Prophet’s time, the period of the first caliph Abu Bakr and during the early years of the second caliph Umar (Sahih Muslim, 1482).
Saheeh Muslim from Ibn ‘Abbaas (may Allaah be pleased with him) who said: “At the time of the Messenger of Allaah (peace and blessings of Allaah be upon him), the time of Abu Bakr (may Allaah be pleased with him) and the first two years of the caliphate of ‘Umar (may Allaah be pleased with him), a threefold divorce was counted as one. ‘Umar said: “People are being hasty with regard to a matter in which they should not rush. Let us count it as three and judge between people accordingly .” According to another report narrated by Muslim: Abu’l-Sahba’ said to Ibn ‘Abbaas (may Allaah be pleased with them): “Was not three counted as one at the time of the Messenger of Allaah (peace and blessings of Allaah be upon him) and the time of Abu Bakr (may Allaah be pleased with him) and the first three years of the time of ‘Umar (may Allaah be pleased with him)?” He said: “Yes,”
They also quote as evidence the report narrated by Imam Ahmad in al-Musnad with a jayyid isnaad from Ibn ‘Abbaas (may Allaah be pleased with him), that Abu Rakaanah divorced his wife by saying “I divorce you thrice”, then he regretted it, so the Prophet (peace and blessings of Allaah be upon him) returned her to him with one word and said, “This is only one (divorce).”
Once Rukanah bin Yazid, a companion of the Prophet, had divorced his wife thrice in one sitting. Regretting what he had done, he approached the Prophet, who asked him how he had divorced his wife. Yazid answered that he had done so by pronouncing the word talaq thrice. The Prophet asked him if he had pronounced it in a single sitting, to which he replied in the affirmative. The Prophet then said that it had the effect of one divorce and that he could take his wife back.
This was the view of Ibn ‘Abbaas (may Allaah be pleased with him) according to a saheeh report narrated from him; according to the other report narrated from him he shared the view of the majority. The view that they should be regarded as one divorce was narrated from ‘Ali, ‘Abd al-Rahmaan ibn ‘Awf and al-Zubayr ibn al-‘Awwaam (may Allaah be pleased with them).
This was also the view of a number of the Taabi’een, Muhammad ibn Ishaaq the author of al-Seerah, and a number of the earlier and later scholars. It was also the view favoured by Shaykh al-Islam Ibn Taymiyah and his student Ibn al-Qayyim (may Allaah have mercy on them). This is also my view, because that is following all of the texts, and because it is also more merciful and kind to the Muslims.
Fataawa Islamiyyah, 3/281, 282.
Pakistani laws against triple-talaq
Our neighboring country Pakistan has solved this problem decades ago through establishing a seven member commission which gave its recommendation as below which seems right way to solve the problem instead of the farcical triple-talaq bill drafted by BJP government:
The Commission further recommended that for the divorce to be effective, the husband must pronounce talaq in three successive tuhrs, or the period between two menstrual cycles. These recommendations were presented in 1956. In 1961, Section 7 of the Muslim Family Law Ordinance was dedicated to talaq. It had six sub-sections, they are as follows:
- After pronouncing talaq, a man has to provide notice to the Chairman of the Union Council, informing him of his decision, and also supplying a copy to his wife.
- Failure to do so could invite punishment up to one year or a fine of Rs 5,000.
- A talaq is not valid until 90 days after the man provides a notice to the chairman.
- The chairman is obligated to commence arbitration proceedings for reconciling the couple within 30 days of receiving the notice.
- If the wife is pregnant, the talaq won’t be effective until after 90 days or the pregnancy, whichever comes later.
- “Nothing shall debar a wife, whose marriage has been terminated by talaq effective under this section, from marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time, so effective.”
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THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937
1. Short title and extent
(1) This Act may be called the Muslim Personal Law (Shariat) Application Act, 1937.
(2) It extends 1 to the whole of India 2 except the State of Jammu and Kashmir
2. Application of Personal law to Muslims
|Application of Personal Law to Muslims||
2. Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and waqfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
Explanation of Section 2:
Section 2 of the Shariat Act provides that in a case where both the parties are Muslims the rule for decision shall be Muslim Law, if the case involves any of the following matters:
(1) Intestate succession (i.e. inheritance),
(2) Special property of the females,
(3) Marriage (including all incidents of marriage),
(4) Dissolution of marriage (including all kinds of divorce),
(9) Trust and trust properties, and
It is therefore, clear that in respect of the above-mentioned matters, if both the parties to a case are Muslims, the courts shall apply only the Muslim personal law and nothing else. A custom or usage contrary to Muslim law cannot be applied now.
It is significant to note that the words, “rule for decision shall be Muslim law” in Section 2 of the Act, are mandatory, meaning thereby that the courts are not only empowered but also bound to administer only Muslim personal law in the situations mentioned therein.
(b) In the cases involving adoption, wills and legacies, the courts have no authority to apply Muslim law under Section 2 of the Act, because these subjects are not included in the said section. But Section 3 of the Shariat Act provides that courts may apply the rules of Muslim law in cases of adoption, will and legacies provided a Muslim expressly declares that he wants to be governed by Muslim law also in respect of these matters in addition to the aforesaid ten matters. On this point the relevant provisions of Section 3 of the Shariat Act, are given below:
3. Power to make a declaration.
(1) Any person who satisfies the prescribed authority—
(a) that he is a Muslim; and
(b) that he is competent to contract within the meaning of section 11 of the Indian Contract Act, 1872 (9 of 1872); and
(c) that he is a resident of 4 the territories to which this Act extends, may by declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of 5 the provisions of this section, and thereafter the provisions of section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified.
(2) Where the prescribed authority refuses to accept a declaration under sub- section (1), the person desiring to make the same may appeal to such officer as the State Government may, by general or special order, appoint in this behalf, and such office may, if he is satisfied that the appellant is entitled to make the declaration, order the prescribed authority to accept the same.
Explanation of Section 3:
(1) Any person who satisfies the prescribed authority:
(a) That he is a Muslim, and
(b) That he is competent to contract within the meaning of Section 11 of the Indian Contract Act, 1872, and;
(c) That he is a resident of a territory to which this Act extends.
may by declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of the provisions of this section, and thereafter the provisions of Section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein, adoption, wills and legacies were also specified.”
It is, therefore, clear that since adoption wills and legacies are not mentioned in Section 2, the courts will not apply Muslim law to all the Muslims in these three matters unless they desire to be governed by Muslim law also in these matters.
This desire must be expressed through a declaration to that effect. Procedure for such a declaration has been laid down in Section 3(2) and Section 4 of this Act. It may be noted that the effect of such a declaration is that not only the declarant but also his children and all the descendants shall be governed by Muslim law in these three additional subjects.
On the other hand, if there is no such declaration by a Muslim, the courts are not bound to apply Muslim personal law on these matters and they may freely apply customs and usages or the local enactments, if any.
(c) The Shariat Act, 1937, was enacted by the Central Legislature and it was beyond its legislative competence to make laws for provincial (State) subjects. Agricultural lands, charities and charitable endowments, being provincial (State) subjects, had to be expressly excluded from Section 2 of the Act.
The result is that the courts cannot apply Muslim law on these questions under the authority of the Shariat Act. But State legislatures are competent to enact laws on these subjects. In most of the States of India, therefore, succession to agricultural lands is regulated by local tenancy laws and not according to the Muslim law of inheritance.
However, in the States of Andhra Pradesh and Tamil Nadu, in the matters of agricultural lands, charities and charitable institutions, Muslims are governed by Muslim personal law.
The reason is that in these States an amendment in Section 2 of the Shariat Act has been made under which these matters have not been exempted from the application of Muslim personal law.
(d) Section 6 of the Shariat Act repeals certain provisions of those earlier enactments which gave authority to the courts to apply Muslim law before the commencement of the Shariat Act. For example, Section 26 of Bombay Regulation Act, 1827, Section 16 of the Madras Civil Courts Act, 1873, Section 3 of Oudh Law Act, 1876, Section 5 of Punjab Laws Act, 1872 and the Central Provinces Laws Act, 1875, have been repealed and are now not in force. But two points must be noted regarding the repeal of these provisions:
(1) The whole of the above mentioned Acts have not been repealed by Section 6 of the Shariat Act. Therefore, except the repealed sections, other provisions of these Acts are still enforceable within their own limitations.
(2) The provisions which have been repealed were such provisions which authorised the courts to apply customs or usages to the Muslims. At present, therefore, all customs and usages, contrary to Muslim personal law, have been abolished and cannot be applied on matters enumerated in the Shariat Act.
4. Rule-making power
(1) The State Government may make rules to carry into effect the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:—
(a) for prescribing the authority before whom and the form in which declarations under this Act shall be made;
(b) for prescribing the fees to be paid for the filing of declarations and for the attendance at private residences of any person in the discharge of his duties under this Act; and for prescribing the times at which such fees shall be payable and the manner in which they shall be levied.
(3) Rules made under the provisions of this section shall be published, in the Official Gazette and shall thereupon have effect as if enacted in this Act.
6 (4) Every rule made by the State Government under this Act shall be laid, as soon as it is made, before the State Legislature.
5. Dissolution of marriage by Court in certain circumstances.—Rep. by the Dissolution of Muslim Marriages Act, 1939 (8 of 1939), sec. 6 (17-3-1939).
7 The under mentioned provisions of the Acts and Regulations mentioned below shall be repealed in so far as they are inconsistent with the provisions of this Act, namely:
(1) Section 26 of the Bombay Regulation IV of 1827;
(2) Section 16 of the Madras Civil Courts Act, 1873 (3 of 1873); 8 ***
(4) Section 3 of the Oudh Laws Act, 1876 (18 of 1876);
(5) Section 5 of the Punjab Laws Act, 1872 (4 of 1872);
(6) Section 5 of the Central Provinces Laws Act, 1875 (20 of 1875); and
(7) Section 4 of the Ajmer Laws Regulation, 1877 (Reg. 3 of 1877).
1. Extended to the Pondicherry by Act 26 of 1968, sec. 3 and Part I, subject to the following modifications:—
2. Subs. by the Act (48 of 1959), sec. 3 and Sch I, for certain words (w.e.f. 1-2-1960).
3. The words “excluding the North-West Frontier Province” omitted by the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948.
4. Subs. by the Adaptation of Laws (No. 3) Order, 1956 for “a Part A State or a Part C State”. tc” 6. Subs. by the Adaptation of Laws (No. 3) Order, 1956 for “a Part A State or a Part C State”.”
5. Subs. by Act 16 of 1943, sec. 2, for “this Act”.
6. Ins. by Act 20 of 1983, sec. 2 and Sch. (w.e.f. 15-3-1984). tc” 1. Ins. by Act 20 of 1983, sec. 2 and Sch. (w.e.f. 15-3-1984).”
7. Subs. by Act 16 of 1943, sec. 3, for “Provisions”.
8. The brackets, figures and words “(3) Section 37 of the Bengal, Agra and Assam Civil Courts Act, 1887” omitted by Act 16 of 1943 sec. 3. This omission has the effect of reviving the operation of section 37 of that Act.