Triple Talaq or ‘Talaq-ul-Biddat’, the most controversial issue at hand is at the mercy of the Constitutional Bench of the Supreme Court comprising of 5 judges of different religions. On one hand the challenge put forward is the jurisdiction of the Supreme Court itself, as to whether the courts of law can challenge the validity of a personal law, as the same has been answered in negative in State of Bombay v. Narasu Appa Mali (1952). The second most important defence being raised by the AIMPLB is that of Article 25, i.e. right to protect, profess and propagate one’s own religion, the Board seeks to extend the scope of Article 25 to include Triple talaq, as having it being recognized as an essential practice of Islam. On the other hand that sect of the community which is against the practice of triple Talaq, raise the issues of violations of fundamental rights.
In order to answer these important questions, one need to first trace the origin of talaq-ul biddat. The practice is said to have originated in pre-Islamic Arabia, which is also known as the Jahilliyha Period or the Time of Ignorance. With the advent of Islam and Prophet Muhammad in Arabia, the said practice was abolished. During the era of Prophet Muhammad, no one was allowed to pronounce triple talaq. In a case where a man named Rukanah pronounced triple talaq in one sitting to his wife. Prophet Muhammad himself interpreted it as one divorce and allowed Rukanah to take his wife back. Prophet was of the view that when divorce is pronounced in one sitting, be it thrice or hundred times, it has to be treated as one.
This tradition was followed during the time of first Caliph Abu Bakr and for about two years during the second Caliph Umar. During this period Arab invaded many other countries, including Iraq, Syria, Egypt and Persia. The Arabs thought that the women in these countries were more beautiful than their own women, so they offered to marry them. Ignorant of the fact that triple talaq was no longer valid in Arab, these women urged the Arab men to divorce their wives through triple talaq. The Arab men willingly did so (because men knew that Islam had abolished triple talaq and that would not be effective), and even after marrying these women, they would validly retain their earlier wives as well.
When these Syrian, Persian, Egyptian women found that they were being cheated, they approached Caliph Umar to enforce Triple talaq again in order to stop its misuse by Arabs. The Caliph complied with their demands to meet an emergency situation, but with an intention to enforce it permanently. Thus today also triple talaq is being practiced, it is considered as sinful but nevertheless valid.
Throughout the history, Triple talaq was a custom in pre-Islamic Arabia, but abolished by Prophet Muhammad himself, but again innovated by the second caliph. Having traced its origin, we need to look at the Holy Quranic injunctions in order to know the value and sanctity of the practice.
Prophet Muhammad was always against the notion of talaq, and if it, at all had to be given, it should be a reconcilable one. Quran mentions that there should be atleast four serious attempts to reconcile the marriage through atleast two Arbitrators, one from the side of Husband and other being from the side of wife. The Quran nowhere uses the term ‘Triple Talaq’ or ‘Talaq-ul-Biddat’. Quran under Chapter 2 Verse 229-231, recognizes the practice of talaq. Quran under 2:229 ordains that a divorce must be reconcilable one. Verse 230 of Chapter 2, states that “divorce be twice, and then either keep the wife in an acceptable manner or release her with kindness.” The verse uses the term ‘Twice’, which is significant to the issue at hand. Twice in itself carries the sense of a reasonable gap between the two pronouncements. When we say “I went to your house twice but you were not there” cannot mean one went to his house twice in one go but definitely after some reasonable gap of time. Once he went, he was not there, then again he went, he was not there. Thus the act of going had to be accomplished in two different periods of time. Similar is the case with regard to divorce mentioned in the Quran, that two pronouncements of talaq have to be made at a reasonable gap, most appropriately at a gap of one month. This form of talaq is known as ‘talaq-ul-sunnat’, that is approved form of talaq, which is further divided into ‘talaq Ahasan’ and ‘Talaq Hasan’. Talaq Ahasan is most proper form of divorce, wherein the husband pronounce talaq once during the period of purity and abstains from his wife for three consecutive months, during this period the divorce is revocable, which becomes irrevocable at the end of the third month. Talaq hasan, on the other hand requires husband to pronounce talaq three times during three consecutive months, the divorce is revocable till the husband pronounces talaq for the third time, which then makes divorce final and irrevocable. Thus the Quran, the primary authority of Islam, recognizes only that form of divorce which gives time for reconciliation. Thus it nowhere justifies the practice of triple talaq, thus it should not be regarded as an essential practice of Islam.
Also it is important to note that most of the hardline Islamic countries like Pakistan, Bangladesh, Sri-Lanka, etc. have imposed a complete ban on triple talaq, and only a very small sect of Muslims i.e. Hanafi Schools of Sunni Muslims recognize this practice of Triple Talaq, However the problem in abolishing this practice in India is that this Hanafi sect is in majority amongst Indian Muslims. However, merely because a practice is permitted and not prohibited by the religion, cannot be regarded as a positive tenet of that religion, as has also been held by the Supreme Court in Khursheed Ahmed Khan v. Union of India.
The challenge of the respondents in Shyara banu v. UOI that Supreme Court cannot challenge personal laws even if violative of Fundamental Rights, is mainly based on the wording of Article 13 of the COI, which does not enlist ‘personal law’ as one of the law. However the definition of ‘law under the said article is ‘inclusive’ in nature, which means it does not exhaustively lay down all the kinds of laws which the court can look into, rather it makes the definition expansive and keeps it open so that the courts can at the right time read into it any other law as well. Even if this be set aside, the judiciary of the country has been vested with the power to grant appropriate and complete justice to everyone, and it cannot be expected to hide behind the express provisions of law, when thousands of Muslim women are looking upon it for the relief from the immemorial degrading treatment given to them and in a hope that the court will at the most uphold the principle of Holy Quran and Prophet Mahummad.
Another question here is whether Supreme Court will take a traditional road wherein it will go by the express provisions and not enter in the domain left exclusive to the personal laws, the hurdle here are no easy, as evident from the Aga Khan Case (1866), wherein the British Judge, Justice Sir Joseph Arnould, while declaring Khoja Community as Muslims, examined not only a practice of any religion, rather examined the whole religious community, as to who are Shia Muslims? and declared the Khoja community as the Shia Muslims. Thus, in the history, the judiciary needs to trace its roots with regard to jurisdiction. But will the Supreme Court take note of the Constitutional Principles or uphold the religious practices in order to maintain religious peace and harmony. The issue of triple talaq places an unprecedented burden on the shoulders of judiciary.