Thursday, June 2, 2016

Musings on Triple Talaq and its Validity in India

Triple is a bone of contention and Muslim women are up in arms to get it abrogated. Here the views of Justice Katju.
In Sharia law, there are broadly two kinds of talaq : 
(1) Talaq al-Ahsan, which is done by saying a single word 'talaq' 3 times, with an interval of one month every time. The talaq becomes complete when the third time the word 'talaq' is used.
(2) Triple talaq, or Talaq ul- Biddat, which is done by saying 'talaq' 3 times one after another, with no interval of time. So this results in immediate divorce. As a matter of fact, this is the most widely practiced method.
Although Muslim Sunni scholars have disapproved triple talaq and called it sinfully, nevertheless they say it is valid.
This matter, whether triple talaq is valid was considered by the Privy Council in Saiyid Rashid Ahmed vs. Aneesa Khatoon, A.I.R. 1932 P.C. 25. In paragraph15 of the judgment, after considering the relevant authorities on the subject, this is what the Privy Council said :
" Their Lordships are of opinion that the pronouncement of the triple Talaq by Ghiyas-ud-din constituted an immediately effective divorce, and, while they are satisfied that the High Court were not justified in such a conclusion on the evidence in the present case, they are of opinion that the validity and effectiveness of the divorce would not be affected by Ghiyas-ud-din's mental intention that it should not be a genuine divorce, as such a view is contrary to all authority. A Talaq actually pronounced under compulsion or in jest is valid and effective (Baillie's Digest, 2nd edn., p. 208; Ameer Ali's Mohammedan Law, 3rd edn., vol. 2, p. 518; Hamilton's Hedaya, vol. 1, p. 211)."
In view of Article 372 of the Indian Constitution, this decision of the Privy Council still remains the law in India, since it has not been altered by the Indian Supreme Court.
So people who say triple talaq is illegal in India are wrong.
Some people argue that triple talaq should be banned, but talaq al-Ahsan should remain. I disagree. Both talaq al-Ahsan and triple talaq can be done orally by a Muslim husband., while a Muslim wife cannot get oral talaq. As regards, khula, this requires the consent of the husband, which he may not give, whereas a husband need not get the consent of the wife for divorcing her orally.
Thus, the Sharia clearly discriminates against Muslim women and needs to be scrapped, and replaced by a Common Civil Code.
However, the Mullahs will staunchly oppose the abolition of even triple talaq, and this also seems to be rigid the stand of the All India Muslim Personal Law Board. And because of vote bank politics in India, the politicians will do nothing about it.