Triple talaq prevents men from killing wives (Indian Express)

Introduction

Noting that a religion cannot be “reformed” out of its existence or identity, the All India Muslim Personal Law Board (AIMPLB) on Friday challenged the Supreme Court’s initiative to judicially examine Islamic personal laws relating to marriage and divorce, such as the triple talaq, which discriminate against Muslim women.

Issue

1. Practices depicted in the Holy Quran are out of bounds for the Supreme Court.
2. Personal laws of marriage and divorce are outside the purview of the fundamental rights of the Indian Constitution
3. Article 44, which envisages a Uniform Civil Code, is only a “directive principle of State policy and not enforceable.”
4. Personal laws of a community cannot be rewritten in the name of social reform.
5. While one community might be prepared to accept and work on social reform, another community may not be prepared for it
6. Court cannot supplant its own interpretations over the text of scriptures… whenever the court is confronted with any religious issue, it will look to the religious books of a particular denomination held sacred by it.

Advocating Polygamy

1. Polygamy ensures sexual purity and chastity and whenever polygamy has been banned, it emerges from history that illicit sex has raised its head
2. Polygamy is a blessing, not a curse for women… polygamy is the solution to the problem of divorced women and widows.
3. Blamed “communal” organisations for running a propaganda regarding prevalence of polygamy among Muslims to instil fear in the majority community.

The board claimed that Muslim Personal Law, based on the Quran, adequately provided for the rights of Muslim women and formed part of the issue of freedom of conscience and free profession, practice and propagation of religion guaranteed under Article 25 and 26 read with Article 29 of the Constitution of India.

Triple talaq is sin but Shariat permits it, says AIMPLB- Krishnadas Rajagopal (GS Paper 1)

About Triple Talaq Issue

1. The All India Muslim Personal Law Board (AIMPLB) quotes this in an affidavit to explain that though triple talaq is a “sin” and the “least appreciated form of ending a marriage”, Shariat (Muslim personal law) permits it.
2. Polygamy is “not even desirable”. The Koran does not make it mandatory. “Yet, since polygamy is endorsed by primary Islamic sources, it cannot be dubbed as something prohibited,” the Board told the Supreme Court.
3. Muslim body said any “uncontrolled use of divorce without regard to the restrictions established by the Shariat is a sin”. “To divorce the wife without reason and only to harm her, or revengefully due to the non-fulfilment of his unlawful demands by the wife or her guardians, and to divorce her in violation of the procedure prescribed by the Shariat, is irregular and undesirable.
4. The Board argued that the Shariat permits triple talaq in the interest of both the man and woman as a means to keep their dignity and privacy intact. The intention is to save the family from delayed justice in conventional courts and to avoid mud-slinging in public.
5. The Shariat intends triple talaq to help the estranged couple to “move on” with their lives and get over the bitterness and hatred they had felt for each other.

Polygamy no longer progressive, SC told-Krishnadas Rajagopal (GS Paper 1)

• Polygamy may have been “progressive and path-breaking” centuries ago, but not now when women and notions of gender justice have evolved. If Muslim countries, where Islam is the State religion, have disregarded polygamy and triple talaq , why should India, a secular country, continue to deny Muslim women their rights under the Constitution
• The government listed “theocratic States”, with Pakistan at the top, followed by Bangladesh, Afghanistan and Iran, which have “regulated” their divorce law and polygamy to show that these are not “essential religious practices” that are beyond reform.
• The Muslim body had strongly batted in support of the unilateral right of Muslim men to pronounce oral divorce through triple talaq , saying that as men, they were better at controlling their emotions. The Board has also said that polygamy prevents illicit sex and protects women.
• The government pointed to how the AIMPLB had also referred to triple talaq and polygamy in the Supreme Court as “undesirable”. The Board had told the SC that though practices like triple talaq and polygamy were “undesirable”, their hands were tried because the Sharia permitted these practices.
• Any practice that leaves women socially, financially or emotionally vulnerable or subject to the whims and caprice of menfolk is incompatible with the letter and spirit of Articles 14 and 15 of the Constitution.
• The government maintained that triple talaq and polygamy impacted a woman’s status and her right to live with confidence and dignity, and added that they were not protected under Article 25 of the Constitution, which guaranteed immunity to practices essential or integral to the religion.
• The ministry claimed that personal laws as well as customs and usage would come under the ambit of Article 13, which lays down that any law that impinges upon fundamental rights shall be void. The government pleaded that the practices of triple talaq and polygamy should be tested on the anvil of Article 13 after rectifying the “incorrect” precedent set by the High Court in 1951.
• The affidavit said that although the 1951-judgment had upheld the validity of polygamy, it had also underscored the need for social reforms. It added that no reform had happened in the last 65 years and that women from the Muslim community remained extremely vulnerable.
• If there develops serious discord between the couple, and the husband does not at all want to live with her, legal compulsions of time-consuming separation proceedings and expenses may deter him from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive.
• The Centre sought the Supreme Court to answer “whether in a secular democracy, religion can be a reason to deny the equal status and dignity available to women under the Constitution of India”.

http://www.thehindu.com/todays-paper/tp-national/centre-polygamy-not-progressive-now/article9199680.ece

http://www.thehindu.com/todays-paper/polygamy-no-longer-progressive-sc-told/article9199740.ece

http://indianexpress.com/article/india/india-news-india/triple-talaq-not-integral-to-religion-centre-in-supreme-court-3071125/

No mention of triple talaq in Quran: Muslim women groups- Abantika Ghosh (GS Paper 1)

• Muslim women’s organisations have said that banning triple talaq is not against Sharia law because the Quran does not have such a provision. After the passing away of the Prophet, one of the imams allowed it only temporarily.
• The right to divorce is given equally to both parties… There is a 90-day period for reconciliation and deliberation. All India Muslim Women’s Personal Law Board, is to give statutory backing to Muslim marriage laws to prevent selective interpretation of holy texts based on convenience.
• Talaq as per Sharia law is a laid down procedure where the first utterance of triple talaq has to be followed up after three menstrual cycles of the woman and attempts at reconciliation. That is not followed, and now there is triple talaq over phone, email and SMS.

Govt, Law Board: Framing the Triple Talaq argument- Shalini Nair (GS Paper 1)

What led the Centre to take this stand?

• Almost three decades after the Supreme Court judgment in the Shah Bano case raised questions on the sanctity of personal laws, comes the Shayara Bano case that has once again stirred the religious orthodoxy versus gender justice debate.
• In February this year, Shayara, a resident of Kashipur in Uttarakhand who was given instantaneous triple talaq by her husband, approached the Supreme Court. Her petition challenged the long-standing practices of talaq-e-bidat (instantaneous triple talaq), nikah halala (prohibition on remarriage with the divorced husband without consummating marriage with another man) and polygamy.
• Now, the Union government has filed an affidavit that in-principle supports the petitioner’s demand for doing away with such practices.

Does the petition come in conflict with Islamic principles?

• The Muslim Personal Law (Shariat) Application Act, 1937, allows Indian Muslims to be governed by the Shariat (Islamic law), based on the Quran and Hadith (utterances of the Prophet), in matters of personal law.
• In the absence of any codification even within the Quranic framework, however, the Shariat has been subject to interpretations by the Muslim clergy, who have held these practices as sacrosanct.
• But stating that Muslim women, merely by virtue of their gender and religion, are being denied their right to equal protection under law and protection from discrimination, Shayara’s petition argues that talaq-e-bidat has no foundation in the Quran and that polygamy is not an integral part of Islam.
• It refers to several scholars who hold that in Islam, triple talaq is valid only if the three utterances are spread over a period of 90 days and after several attempts at reconciliation have failed.

Have there been cases in the past that have raised similar questions?

• While there have been several cases that have challenged matters of the Muslim personal law, Shayara’s is the first to challenge it citing the fundamental rights guaranteed by the Indian Constitution.
• The petition invokes Articles 14, 15, 21 and 25 that deal with the right to equality before law, protection against discrimination on grounds of sex or religion, protection of life and personal liberty and freedom of religion respectively.
• With special mention to Article 25, it holds that it merely protects religious faith and not practices that are against “public order, morality or health”. It, however, steers clear of invoking the argument of the Uniform Civil Code.

Who are the various parties involved in the legislation?

• While the petition was originally filed by the lawyers of Shayara Bano, over the last several months, it has been clubbed with several other petitions, including those filed by a few other affected women.
• Muslim scholars such as Irfan Ali Engineer through his Centre for Study of Society and Secularism and several Muslim women’s groups such as the Bharatiya Muslim Mahila Andolan (which has over 1 lakh members across 15 states) and Bebaak Collective (coalition of seven Muslim women groups across India) have also filed intervening petitions supporting Shayara’s demand.
• Also expected to join the fray is the All India Muslim Women Personal Law Board, which has in the past drafted its own Sharia Nikahnama that gives equal rights to men and women and repeatedly spoken against triple talaq.
• The All India Muslim Personal Law Board (AIMPLB) has, however, decried all the groups that have spoken out in favour of reforming the Muslim personal law. The AIMPLB’s affidavit opposes any attempts at interference by the Supreme Court in matters of religious and cultural rights.
• It states that triple talaq, in fact, saves women the ignominy of divorce proceedings that could otherwise damage her chances of re-marriage and prevents the “murder of wives” at the hands of their husbands who may want to divorce them. It also backs polygamy on the grounds that “an unlawful mistress is more harmful for social fabric than a lawful second wife”.

So how did the Centre come into the picture?

• In March this year, the Supreme Court had asked the Centre to make public a report by the high-level Pam Rajput committee on the status of women in India — the committee has sought a ban on gender discriminatory practices propagated by personal laws.
•  It was only this month, however, that the Ministry of Law finally filed its affidavit where it took a stand that personal laws, regardless of the fact that they are meant to preserve the plurality and diversity of the country, “must be examined in the light of the overarching goal of gender justice and dignity of women”.
• It has also asked for re-examination of a 1952 Bombay High Court judgment that held that Article 13 of the Constitution doesn’t cover personal laws. Article 13 states that laws that are inconsistent with or in derogation of the fundamental rights are void.
• To drive in the point that such practices are not integral to Islam, the Union ministry gives detailed examples of personal law reforms in 10, mainly Muslim majority, countries.
• The union government’s affidavit states, “Secularism being a hallmark of Indian democracy, no part of its citizenry ought to be denied access to fundamental rights, much less can any section of a secular society be worse off than its counterparts in theocratic countries, many of which have undergone reforms.

http://indianexpress.com/article/explained/shayara-bano-law-board-triple-talaq-supreme-court-3077695/

SC scrutiny of triple talaq is judicial legislation: AIMPLB (GS Paper 1)

• The All India Muslim Personal Law Board (AIMPLB) on told the Supreme Court that any interference by the apex court in Muslim personal laws, including triple talaq, will amount to “judicial legislation.”
• Personal laws cannot be altered or tinkered with on the justification that they violate the fundamental rights of Muslim women like gender equality and the ethos of secularism, a key part of the basic structure of the Constitution.
• Personal laws of a community cannot be re-written in the name of social reform … courts cannot supplant their own interpretations over the text of scriptures. Muslim personal law provides for the practices of marriage, divorce and maintenance, and these practices are based on the holy scriptures.
• The government had opposed the AIMPLB stand that triple talaq was intended to save the family from delayed justice in conventional courts and to avoid mud-slinging in public. The Board had contended that concern and sympathy for women lay at the core of polygamy.

Frames of reference- K. Kannan (GS Paper 1)

Introduction

• There has been recently also reference to a larger Bench from a decision of the Supreme Court in Prakash v. Phulavati (2015), a case that had nothing to do with divorce but was a case disposed of under the Hindu Succession Act.
• The court was considering whether a Hindu woman had a right to claim by birth ancestral property held by her father who had died before 2005, although the property had not been put to partition till after the Act was amended in 2005.
• The court held that such a right existed, but before parting handed down a beneficent handshake to a bystander in court who wanted the plight of Muslim women also to be considered in public interest.

Triple talaq and Islamic countries

• From the earliest days of Islam, a husband could divorce his wife on pronouncement of talaq in three successive tuhrs (menses-free time).
• The first and second pronouncements are revocable and resumption of cohabitation is possible. It is the third pronouncement that dissolves the marriage. Pronouncement of talaq at one go, called talaq-e-bidat, was a latter-day innovation to get an incorrigibly acrimonious couple to part ways as quickly as possible.
• The practice was challenged as early as the 13th century by the Hanbali scholar Ibn Taimiyah (1268-1328 AD), who argued that triple talaq at one sitting shall be counted as one and hence revocable.

Islamic Countries way

1. Turkey adopted a modified version of the Swiss Civil Code in 1926, taking away the religious imprint and allowing for judicial control;
2. Egypt framed a law in 1929 terming triple talaq pronounced at one sitting as a single pronouncement open to easy revocability;
3. Syria followed in 1953 with a slight modification that if the pronouncement of talaq is with reference to number, every talaq shall be revocable, except a third talaq or a talaq before consummation or for a consideration and expressly stated to be irrevocable.
4. Iraq, Jordan, the United Arab Emirates and Qatar have fashioned their own interpretations to Ibn Tamiyah’s view.
5. In Iraq, since 1959, divorce could be effected only after approval by government-run personal status courts.
6. Algeria has adopted the same law, making a further provision for completing the reconciliation process within 90 days.
7. In 1956, a similar interpretation was adopted in Pakistan thanks to the recommendation of a seven-member Commission on Marriage and Family Laws that was set up to assuage the public outrage against then Prime Minister Muhammad Ali Bogra who married his secretary the previous year without divorcing his first wife. The commission suggested that the divorce would not take effect till the matrimonial court dissolves the marriage.
   1. A later decision of the Supreme Court of Pakistan in Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf (1963) emphatically ruled against triple talaq in one session.
8. In Tunisia, since 1956, divorce was possible only through court, which was to examine if there was scope for rapprochement between the parties before granting relief.

Judicial pronouncements in India

• Islamic scholars in India and our high courts did not lag behind either. In A. Yousuf Rawther v. Sowramma (1971), Justice V.R. Krishna Iyer, as a judge of the Kerala High Court, wrote in eloquent prose as was his wont: “The Indo-Anglican judicial exposition of the Islamic law of divorce has not exactly been just to the Holy Prophet or the Holy Book. Marginal distortions are inevitable when the judicial committee in Downing Street has to interpret Manu and Muhammad of India and Arabia.
• The whole Koran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him: If they (namely, women) obey you, then do not seek a way against them (The Koran, iv:34).
• The ‘Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law.
• If he abandons his wife or puts her away in simple caprice, he draws upon himself divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously’.
• Justice Baharul Islam, later a Supreme Court Judge, speaking for Gauhati Bench, said in Jiauddin Ahmed v. Anwara Begum (1981): “The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters, one from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be effected.”
• The Supreme Court, speaking through R.C. Lahoti, who later went on to become the Chief Justice of India, recalled all these decisions in Shamim Ara v. State of U.P. (2002) and struck down a claim of divorce by triple talaq expressed through a written statement filed to fend off a demand for maintenance from the wife as invalid.
• In an earlier judgment in Danial Latifi v. Union of India (2001), the Supreme Court adopted an extremely novel interpretation to get over the infamous attempt of Rajiv Gandhi by the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986 to scuttle the decision in Mohd. Ahmed Khan v. Shah Bano Begum (1985).
• While upholding the constitutional validity of the law, even if seriously straining the plain language, the court said: A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which includes her maintenance as well.
• Such a reasonable and fair provision extending beyond the iddat period (the period a woman must observe after the death of her spouse or after a divorce, during which she may not marry another man) must be made by the husband within the iddat period.

Handling the current imbroglio

Now then, the approach shall be-

1. Triple talaq at one go shall be treated as a single pronouncement not yet capable of bringing an irrevocable coup de grace to end matrimonial ties. There is no need to abolish it since it is judicially pronounced to be ineffective.
2. The pronouncements shall be tested on their reasonableness and parties shall undertake a compulsory conciliatory effort before their utterance.
3. The interpretation of personal laws of all communities is — like every other law — amenable to be tested on its constitutionality on the touchstone of fundamental rights in the Constitution.
4. The Law Commission, which is a recommendatory body, will do well to let the pronouncement of the Supreme Court clear the air.

• Courts cannot or shall not test the constitutional vires of any Holy Book, be it Koran or Gita or Bible. The regurgitation of existing case law may have the benefit of examining cross-currents on the subject in several countries and help us consolidate the gains of reformative spirit through an express legislation, the same way it was done to consolidate and clarify the provisions of Muslim law relating to suit for dissolution of marriage by women through the Dissolution of Muslim Marriages Act, 1939.

Talaq-e-bidat and nikah halala- Shalini Nair (GS Paper 1)

• Unlike Hinduism and Christianity where marriage has been traditionally viewed as a sacrament, under Muslim law, marriage is a civil contract based on consent as spelt out in the utterance of qabul. he ideal form of dissolution of this contract, based on the Prophet’s tradition, is considered to be talaq-ul-sunnat pronounced in ahsan form.
• Under this form, once the husband pronounces talaq, there has to be a three-month iddat period to factor in three menstrual cycles of the woman. This time is meant for reconciliation and arbitration.
• Talaq-e-bidat has allowed men to pronounce talaq thrice in one sitting, sometimes scrawled in a written talaqnama, or even by phone or text message. Thereafter, even if the man himself perceives his decision to have been hasty in hindsight, the divorce remains irrevocable.
• The Dissolution of Muslim Marriages Act, 1939, has codified a Muslim woman’s right to seek divorce (khula) which she can do by approaching the courts.
• However, when it comes to all other personal law matters including talaq, the Muslim Personal Law (Shariat) Application Act, 1937, states that the Shariat will govern Indian Muslims without specifying what exactly it is.