CONSTITUTIONALITY OF TALAQ

Talaq is one of the modes of dissolution of marriage available to Muslim men. In the literal sense, it is setting free or letting loose and in Muslim law it means freedom from bondage of marriage. It is of three kinds: Talaq-e-Ahsaan, Talaq-e-Hasaan and Talaq-e-Biddat. In first two cases there is always a limited period called iddat period for reconciliation where Talaq can be revoked but in case of Talaq-e-Biddat which is also known as triple Talaq, Talaq becomes irrevocable immediately after the pronouncement.

These are the modes available only to men where they can repudiate the marriage unilaterally at their own whims without assigning any reason. This can be pronounced even in the absence of wife in front of witnesses or in any other manner where husband uses the appropriate words conveying the intention to get separated. There are instances where Talaq has been pronounced through SMS, Skype etc and there is no legal recourse available to the wife as this has been legalized under section 2 of Muslim personal law (Shariat) application act which says that Muslim personal law be applied in case of dissolution of marriage.

Primary sources of Muslim personal law are Quran and Sunnah of Prophet Mohammed. Islamic law regarding Talaq is based on the Hadith –Sahih Muslim (9: 3493) and interpretation of 2:228, 2:229 and 2:230 of the holy Quran. Nowhere in these verses is irrevocable Talaq mentioned. Many people view that triple Talaq is misinterpretation of these verses.

Hadiths are the reports describing the words, actions or habits of prophet Mohammed. Sahih muslim (9: 3493), one of several hadiths says that during the caliphate of Umar, people began to pronounce Talaq frequently, he allowed them to do so (to treat pronouncements of three Talaqs in a single breath as one). This was done because soldiers who wanted to marry Syrian women were asked to divorce their wives in order to marry them and they immediately pronounced talaaq for 3 times in one go. Umar, the caliphate when got to know about this made it irrevocable as he felt that people are mocking with the religious principles as it can be revoked within the iddat period. So whole essence of making the Talaq irrevocable is to prevent its misuse and this is what is happening in the present society.”Law is dynamic and its meaning cannot be pedantic but purposeful.”

Muslim women can neither question the pronouncement of talaaq by their husbands nor can pronounce it.  Under dissolution of Muslim marriage act 1939, ten grounds have been given under which they can file petition for divorce and justify the grounds in court of law. Thus Talaq is against gender justice and equality between men and women.

This is not only in conflict with the principle of natural justice but also violates the articles 14, 15 and 21 of the Indian constitution which talk about right to equality, prohibition of discrimination on the basis of sex and right to life and personal liberty respectively.

Even according to Quran wife should go to Darul qaza and prove atrocities committed by husband against her whereas he can pronounce Talaq on whimsical grounds which violates right to equality and also discriminates between men and women as the marriage which is entered at the will of both is ended unilaterally.

This arbitrariness and whimsicality of the act results in women living at the mercy of men curtailing their right to life and personal liberty.

Article 13 of the constitution says that any law that is in derogation of the fundamental rights is void to the extent of inconsistency and this mode of divorce violates fundamental rights of Muslim women and is unconstitutional.

In a case, Allahabad high court held that “Personal laws, of any community, cannot claim supremacy over the rights granted to the individuals by the Constitution.

The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict evil instant divorce does not accord with Islamic injunctions.

The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him.

 If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously”.

Unless Supreme Court rules that these laws are violative of fundamental rights mere observation that these are unconstitutional means nothing and as there is no procedure describing the Muslim men to approach the court for divorce, court should also clarify under which law he can approach the court if Talaq is declared unconstitutional. Talaq shouldn’t be used arbitrarily against women, court after hearing both the parties should declare the date of delivery of Talaq.

Suvarshitha, 2nd year, ICFAI Law School.

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