Bangalore: The view of marriage is different for Muslims when compared with the Hindus and the Christians. A marriage is not observed as a sacrament but a civil contract under the Muslim Law. The civil contract is mutually accepted by both the two parties on mutual consent which is shown by the utterance of the word ‘Qabul’ by both the parties i.e. Bride and the Groom.
Triple Talaq which is also known as Talaq-e-Mughallazah (Irrevocable Divorce) is a form of Islamic divorce that is practiced by Muslims in India. Instant Triple Talaq or Talaq-e-Bidat is a practice which is different from the practice of ‘Talaq-ul-Sunnat’, which is considered to be the ideal form of dissolution of marriage contract among Muslims. In ‘Talaq-ul-Sunnat’, when the husband pronounces talaq, the wife has to observe a three-month Iddat period (Iddah or Iddat is a period of waiting) covering the three menstrual cycles during which the husband can arbitrate and re-conciliate with the wife. In case of cohabitation between the couple, during these three months, the talaq is revoked.
However, if the husband didn’t revoke the talaq till the period of Iddat expires, the talaq is irrevocable and final. But in case of ‘Talaq-e-Bidat”, when a man pronounces talaq thrice in a sitting, or through phone, or writes in a talaqnama or text message, the divorce is considered immediate and irrevocable, even if the man later wishes to re-conciliate. The only way the couple can come back in a relationship is through what is called as ‘Nikah Halala’. ‘Nikah Halala’ requires the female divorcee to get remarried to another man, consummate the second marriage and then get divorced. Not just that but has to then observe the 3 month ‘Iddat’ period and only then can return to her first husband.
A five-judge bench comprising of Chief Justice Jagdish Singh Khehar, Justice Kurian Joseph, Justice Rohinton Fali Nariman, Justice Uday Umesh Lalit and Justice S Abdul Nazeer – all from different religious communities including Sikh, Christian, Parsi, Hindu and Muslim headed by Chief Justice J S Khekar– heard seven pleas, including five separate petitions, filed by Muslim women challenging the prevalent practice of triple talaq in the community, over six days from May 11 to May 18.
The Supreme Court on Tuesday August 22, 2017 set aside the practice of instant triple talaq saying it was violative of Article 14 and 21 of the Indian Constitution. The apex court called the triple Talaq against the basic tenets of holy Quran. Supreme court has struck down the validity of the instant triple Talaq by a majority of 3:2 in which Justices Kurian Joseph, R F Nariman and U U Lalit held it as violative of the Constitution while justices J S Khehar and Justice S Abdul Nazeer were in favour of putting on hold for six months practice of triple talaq and asking the government to come out with a law in this regard.
During the hearings, the court had clarified that it would only deliberate whether the practice of ‘triple talaq’ is part of an “enforceable” fundamental right to practice religion among Muslims and not on the practice of polygamy.
This is a big victory for gender rights and the enshrinement of the Constitution over religious laws.