10 NOV 2017

Why has the Indian Supreme Court banned Triple Talaq?

Why has the Indian Supreme Court banned Triple Talaq?

In a judgment handed down on 22 August 2017, the Indian Supreme Court banned the Triple Talaq, declaring it ‘unconstitutional’. The majority of the bench, made up of judges from five different faiths, described the Triple Talaq (aka Talaq-e-Mughallazah or Talaq-e-Biddat) as ‘not integral to religious practice’, holding that it ‘violates constitutional morality’.

If you’ve read my previous articles on the different types of Talaq you will be aware that it is this type of Talaq which causes the most distress and strife. This is because, on the face of it, the husband can unilaterally divorce his wife irrevocably with no scope for reconciliation. The point of there being no scope for reconciliation is of most importance here because there are other methods of pronouncing Talaq which do leave the door open for reconciliation between the parties but also have the effect of severing the marriage.

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Before the advent of Islam, it was the practice of the Arabs to pronounce as many divorces as they pleased (without limit) and revoking the divorce before completion of the Iddah (waiting period). This changed with the coming of the Prophet Muhammad and as part of his drive through the religion of Islam to change the culture of the Arabs - a culture which was perceived as being backwards and full of ignorance – the rules pertaining to divorce were revealed in the Qur’an. Evidence of the first instances of a limit on Talaq by limiting it to three Talaqs in one sitting can be found during the lifetime of the Prophet Muhammad.

So what is the correct way for a Muslim man to pronounce Talaq? Once again, the Qur’an provides us with an answer in Talaq-e-Ahsan.

Here, the husband divorces the wife once, using clear words whilst she is in her non-menstrual period and in a period in which the husband has not had sexual intercourse with her. This then leaves room for the parties to reconcile if they so wish. If not, they will be separated upon the expiration of the Iddah (waiting) period.

So far, so simple – or so one would think.

Unfortunately, as a family lawyer I have found that there is massive confusion regarding issues which are cultural but are perceived as religious and vice versa. Whilst the practice of Triple Talaq has religious provenance, I have found that it is most prominent due to the misunderstanding of Islamic divorce issues which themselves have a cultural background. This stems from the patriarchal societal norms of South-Asian culture where it has been understood and taught (quite incorrectly) that the only way to give Talaq is by giving Triple Talaq.

When you add up the fact that Islamic jurisprudence is quite clear as to the different types of Talaq there are and that Muslim countries such as Saudi Arabia and Pakistan which have a civil code based on Shariah law already outlaw Triple Talaq, it becomes difficult to understand why Triple Talaq is so often used.

As my old mentor used to say: ‘Why fire three bullets when you can get the job done in one?’

So, whilst it may seem like a big, controversial story, in this humble writer’s mind it is a positive step towards minimising the type of Talaq that is most ill-used. Ultimately, universal education is required as to what the different types of Talaq are and emphasis must be laid on the best method of giving Talaq, which is Talaq-e-Ahsan.

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