Introduction and Background
Wilson defines a Muslim marriage as “a contract for legalizing the marriage and procreation of children”
Mahmood J. defined a Muslim marriage as a civil contract, upon the combination of which by proposal and acceptance, all the rights and obligations, which it creates, arise immediately and simultaneously (Abdul Kadir V. Salima).
Therefore, from the above lines it becomes imperative that unlike under Hindu Law where the marriage is treated as a sacrament, Muslim Jurisprudence treats Marriage as a mere contract binding two party to stay together. In other words, Muslim Law attaches very little weight to the concept of marriage.
In Muslim law, marriage depends upon the free volition of the parties concerned, so does its dissolution, though the wife’s volition in this regard is subordinate to that of the husband, since the Muslim jurists subscribe to the notion that of the two partners, the husband, on account of his physical and intellectual superiority, has to play a dominant role, and the wife is, therefore, subordinated to him, so much so that she practically enjoys no marital freedom.
Muslim jurisprudence confers on the husband almost absolute power of divorcing his wife, but denies like freedom to the wife, and consequently, the wife can obtain divorce only when the husband agrees to her proposal, and if she forgoes her dower, or gives him something in return for his consent, to release her from the material bond.
The most remarkable feature of Muslim jurisprudence is, that even at the beginning of the development of their juristic thought, they considered the marriage essentially as a civil contract
It accorded dominant position to the husband, was but natural at the stage in the development of human society which was starchy patriarchal. Thus, the Muslim marriage is essentially a contract, though its dissolution, the dominant position of the husband is recognised.
Being civil contract, the validity of a Muslim marriage depends upon the conclusion of the marriage contract.
Muslim does not insist upon any particular form of marriage. If there is a proposal from one side, and its acceptance on the other, a valid marriage will come into existence, provided that other conditions of marriage are fulfilled. No writing is necessary. Even the presence of witness is not necessary.
There is only one form of marriage called nikah. A normal Muslim marriage is a permanent marriage in the same sense in which modern Christian marriage is permanent Union even the husband enjoys the power of unilateral termination of marriage at any time, without any cause and without going to a court of law.
However, since, no term is fixed in a normal nikah, the Muslim marriage is a permanent marriage.
Triple Talaq / Talaq-ul-Biddat
Talaq-ul-Biddat also called as ‘Talaq-ul-Bain’ is a practice followed by the men in the Muslim community to divorce women.
It is recognised by the Sunni Muslims and not by the Shia’s. It is a disapproved and sinful mode of divorce.
In this, the husband repudiates his wife by calling for three divorces in one sentence, or he can repeat the sentence, separately, thrice within tuhr. Therefore, it is practiced only by uttering the word ‘Talaq’ three times even without any reasonable ground.
It becomes effective as soon as the pronouncement is done which leaves no scope for reconciliation between the parties. The situation prompting this type of divorce might be in disarray of circumstances or pressure or misjudging or inebriation or indignation.
What was the problem?
All these temporary reasons lead to a changeless decimation in the life of the couple and their kids. The Prophet never affirmed a Talaq in which there was no open door for compromise.
It is also an irrevocable mode of divorce. This means that neither wife no husband can get back together, even if they want to, until and unless the wife marries someone else and her marriage gets dissolved due to marital conflicts or she becomes a widow.
Even if the spouse sends the speed post in which he mentioned these three words or he called his wife and utters these words over a telephone or even a mere text over whatsapp or other online modes, then also the divorce is said to be valid. This shows vagueness of this practice and the use of arbitrary power by the husbands.
Thus, one can see that Triple Talaq is a weapon of exploitation of women in the hands of Muslim men.
The system of Triple Talaq is an infringement and violation of various fundamental rights like Articles 14, 15, 21 and 25[i]. Further, this type of Talaq is plagued with the ailment of inequality which conflicts with equality which is cherished in Article 14[ii] of the Constitution of India.
The response of Indian courts can be classified into two categories i.e., Earlier Response and the Modern Approach.
In its earlier response the courts in India including the Supreme Court was reluctant in disallowing the practice of Triple Talaq. The same is imperative from the below pronouncements.
Ahmedabad Women Action Group v. Union of India[v]
In this case hon’ble Supreme Court tried to infuse reasonableness into pronouncing triple Talaq but at the same time it was reluctant to interfere with the personal laws of religious sects.
Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan[vi]
In this case, the High Court of Bombay laid two conditions that are required for giving talaq.
Condition 1 – The talaq should be for a reasonable ground or cause.
Condition 2 – Provision of arbitration for reconciliation as mentioned in the Quran should be followed.
Shamim Ara v. State of U.P.[vii]
The Supreme Court observed, the correct law of Talaq as mentioned in the Holy Quran is that Talaq must be founded on a reasonable ground. It must be heralded by efforts at reconciliation among the couple by two arbiters. Both the arbiters should be from each side, i.e., one from the husband’s family and the second from the wife’s. Even if several attempts fail, the Talaq should be enforced.
Therefore, it is imperative from the above cases that judiciary was eager to shun the monstrous practice but was refraining from doing so due to Muslim Law personal law.
However, the Modern Decision stands to be the correct vision, discussed under Shayara Bano Case[viii]
In this case the question before the court was, whether Triple Talaq has legal sanctity?
The court answered – the practice of Triple Talaq is unconstitutional especially in the context of Fundamental Rights and its relation with the personal laws of the country.
Currently, the practice of triple Talaq is considered “good in law, though bad in theology”. There is gross injustice done to a particular section of the society through this practice. Women are no longer the property of men. They have proved from time to time that they are no less than men. In the 21st century, women share same pedestal as that of men but there are certain forces which acts a hindrance for their empowerment. They have equal rights as that of their male counterparts. Thus, when there has been a positive shift of status of women worldwide, it is time that even India bans such customs or usages which are unilateral and are against the empowerment of women. Triple Talaq might have been essential or the need of the period when it was introduced but today this practice has no place in the society.
[i] Constitution of India, 1950.
[ii] Constitution of India, 1950.
[iii] Of the Constitution of India, 1950.
[iv] Of the Constitution of India, 1950.
[v] (1997) 3 SCC 573.
[vi] (2003) 1 (BOM) CR (FB).
[vii] (2002) insc 417.
[viii] Shayara Bano v. UOI, 2017 9 SCC 1.