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Subhanallah, Justice Mashallah
DISCLAIMER: The following article deals with the concept of triple talaq, an Islamic form of divorce, Shayara Bano’s movement to abolish it and its relation with the Indian constitution. It has been written and constructed by abiding by truth and only truth. Despite being proofread by authorities, few errors might have crept in, which may give rise to misconceptions. The author apologises in such cases and welcomes edits and views.
“Abba Jaan, unne chodh diye merko”, cried the 37-year-old over the phone as she spoke to her father. It had been the month of October, in 2015, when she received a speed post containing the talaqnama, revealing the three words ‘talaq-talaq-talaq’ from her husband. While she hadn’t overcome the trauma of six forced abortions and continuous domestic violence, this incident came like a thunderbolt. It scarred her life, as the custody of her children of 11 and 13 was still with her husband, Rizwan Ahmed. This is the story of the Legendary Shayara Bano, the woman behind the Supreme Court’s historic judgement to ban Triple Talaq.
She sought a ban on three practices under the Muslim Personal Law: Triple-Talaq, Nikah-Halala and polygamy.
What is Triple-Talaq, Nikah-Halala and polygamy?
Triple Talaq, also known as Talaq-e-biddat or talaq-e-mughallazah (irrevocable divorce), is a form of Islamic divorce generally followed by the followers of Hanafi Sunni Islamic Schools, which gives the husband a right to divorce his wife by mentioning the word ‘talaq’ three times over a period of 90 days. Nikah-Halala is what follows Triple Talaq, according to which, if a woman wishes to remarry her divorced husband, then, she has to marry another man first, elope with him (consummation of a marriage) and can remarry her first husband only if, the latter divorces her or dies. Polygamy under the ‘Muslim Personal Law’ permits Muslims in India to marry up to four women.
In what form is Triple Talaq practised in India?
Despite 21 Islamic countries like Morocco, Saudi Arabia, Afghanistan and Pakistan banning Triple Talaq, it is still practised in India. According to Islamic Scriptures, Triple talaq should be practised by uttering the word ‘talaq’ three times over three menstrual cycles of the wife (that is, three months). The time in between is given for reconciliation for the husband and wife. Yet, today, the un-Quranic ‘instant triple talaq’ is practised, where the husband pronounces ‘Talaq’ three times in one go. According to a study, 92% of Muslim women in India want oral triple talaq to go. Though practised orally, new ways of triple talaq have emerged, the prominent ones being in the form of speed posts, phone calls, emails and WhatsApp messages. For example:
- Ten days after her marriage, a 21-year-old BDS student’s groom left for Dubai. After remaining incommunicado for over three weeks, he sent her a message — “talaq talaq talaq” — over WhatsApp. The unexpected talaq shattered the woman and her family. Both she and her sister, a Plus Two student, had to drop out of their classes. Overcoming the initial shock, the young woman lodged a complaint at the state women’s commission’s Adalat in Pala, Kottayam.
- A 30-year-old woman’s husband demanded a divorce over the phone. Speaking to TIMES NOW in August, she alleged that her husband hounded her after he questioned her for not giving birth to a boy. He was not satisfied and he wanted to have another son. Her children, three daughters and one son, were also taken away from her by her husband, she claimed. The woman has also levelled charges of molestation against her husband’s elder brother as well. Multiple complaints were filed with the Howrah Police but no action was ever taken by the cops.
Aforementioned, Nikah-Halala, is the only method for the wife to remarry her husband. This has led to exploitation of the Muslim women. Agencies have opened across the length and breadth of India, offering schemes for women to carry out Nikah-Halala by marrying a man, letting him elope on the same day of marriage, followed by him giving divorce. This form of silent rape is not only heart wrenching but also Un-Quranic.
To fight such injustice, came forth Shayara Bano and four other women who were responsible for SC’s historic decision.
Who are they?
Shayara Bano, who was married in April 2001 to a property based dealer, Rizwan Khan, was subjected to domestic violence and received the shock of her life in October 2015, when her husband sent her a divorce note by speed post containing pronouncement of instant triple talaq. The custody of her two children, 11 and 13, was kept by the husband. That’s when Shayara Bano had filed a petition against all the three practices. She was backed by four other women, Ishrat Jahan, Gulshan Parween, Aafreen Rehman and Atiya Sabri along with the ‘Bharatiya Muslim Mahila Andolan’.
Ishrat Jahan from Howrah, West Bengal, was divorced by her husband on the phone. In April 2015, Murtaza, her husband of 15 years, called from Dubai, said “talaq, talaq, talaq” and disconnected. He had allegedly married another woman and took away their four children.
Gulshan Parveen of Rampur in Uttar Pradesh received a talaqnama or divorce notice on a ₹10 stamp paper when she was visiting her parents in 2015. “My husband felt like it one fine day and suddenly both my two-year-old son Ridan and I were homeless,” said Ms Parveen. Ms Parveen also alleged that she was subjected to domestic violence over dowry.
Aafreen Rehman (age 25) got married to her husband after meeting through a matrimonial portal, in 2014. “After two-three months my in-laws started mentally harassing me, demanding dowry,” ANI news agency quoted her. The domestic violence soon turned physical until in September 2015 her family asked her to leave their house and soon later she received the talaqnama via speed post.
Atiya Sabri, married in 2012, was also divorced on a piece of paper. She approached the Supreme Court in January challenging her divorce. She has two daughters, aged four and three. “Talaq given to me cannot be justified. I need justice as I have to raise my daughters,” said Ms Sabri.
Triple Talaq in Quran?
A petition, titled ‘Muslim Women’s Quest for Equality’, was filed by the Bharatiya Muslim Mahila Andolan (BMMA). The BMMA argued that Allah says men and women are equal. Over 50,000 Muslim women and men had signed a petition seeking a ban on triple talaq. The petition, spearheaded by the Bharatiya Muslim Mahila Andolan (BMMA), sought the National Commission for Women’s intervention to end this ‘un-Quranic practice’. Zakia Soman of the BMMA said, “We have reproduced verses from the Quran about talaq, negotiations and how it should happen over a minimum period of 90 days. The second argument is about gender justice. There is no ambiguity in the Constitution of India about all citizens having equal rights.”
True to the claims of BMMA, The Holy Quran finds no mention of instant talaq. The concept of triple talaq arises from Surah Al-Baqarah of ‘The Holy Quran’ verse number
- 228 “Divorced women remain in waiting for three periods…..And their husbands have more right to take them back in this [period] if they want reconciliation….But the men have a degree over them [in responsibility and authority]”
- 229 “Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment….And whoever transgresses the limits of Allah – it is those who are the wrongdoers…”
- 231 “And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself…”
The Holy Quran clearly mentions that the women must be treated with respect and utmost care, yet due to misinterpretations, triple talaq has given birth to a barbaric act.
NDA’s support, AIMPLB opposition and Supreme Court’s Judgement
Shayara Bano’s petition sought that the practices of talaq-e-bidat, nikah halala and polygamy under Muslim personal laws be declared illegal and unconstitutional on the grounds that they violate Articles 14, 15, 21 and 25 of the Constitution.
On October 13th, The NDA government submitted an affidavit to the Supreme Court where it officially opposed the practice of triple talaq. This was opposed by All India Muslim Personal Law Board (AIMPLB), their case was led by Senior Advocate Kapil Sibbal. Bano’s brother, Arshad told media “The Muslim Personal Law Board has filed a petition against us saying we are going against the rules of Islam and they will not allow any change.”
The member of the AIMPLB, Kamal Farooqi mentioned that the Board has filed a rejoinder to Shayara’s petition. According to him, “Personal laws cannot be tampered with or changed for one case alone. Today they will want to change talaq laws, tomorrow they will intrude into other aspects like inheritance. This is unacceptable.”
On 13 May 2017, during the hearings before its final judgment, the Supreme Court described instant triple talaq as the “worst form of marriage dissolution”. The bench that heard the controversial Triple talaq case in 2017 was made up of multi-faith members. The five judges from five different communities were Chief Justice JS Khehar (a Sikh), Justices Kurian Joseph (a Christian), RF Nariman (a Parsi), UU Lalit (a Hindu) and Abdul Nazeer (a Muslim).
On August 22, the five-judge constitution bench of the Supreme Court had termed the practice of instant triple talaq as unconstitutional with a 3-2 majority. In a 397-page ruling, though two judges upheld the validity of Instant triple talaq (talaq-e-biddat), the three other judges held that it was unconstitutional, thus barring the practice by 3–2 majority.
The historical decision was welcomed by all. Faiza Khan, a victim of this malaise from Agra said “We are really happy that the procedure started by Modi Ji & Yogi Ji for Muslim women is going to succeed. This day will be more significant in Muslim women’s life than Eid or Bakrid”. Huma Khayanat, another victim from Lucknow said “People like us who have been divorced & those who are threatened with divorce would be benefited from this law. If a law is formed for Triple Talaq just like there is a law for domestic violence, we will get some relief”
Despite this, the practice of Triple Talaq didn’t halt. Union Law Minister, Ravi Shankar Prasad, during the passage of the bill in Loksabha said “We had hope. The judgment came on August 22. There were 300 triple talaq cases in 2017 of which 100 had taken place after the Supreme Court verdict. This raises a big question,”
The hundred cases included triple talaq given for issues so small like waking up late in the morning, wishing to acquire further studies, not fulfilling the dowry demands, attending the PM’s rally to thank him for the historic move etc. The men involved, varied from Teachers to real-estate agents; casting triple talaq through phone calls, WhatsApp and text messages, and newspaper advertisements.
Here are the few cases amongst the one which came to light after the SC’s judgement on 22nd August:
On December 28, a resident of Rampur’s Azimnagar said she was given triple talaq for waking up late in the morning.
On December 27, Ghousia Begum, 31, a resident of Hyderabad’s Old City was given triple talaq over the phone by her husband Zahran Hamed Al Rajhi, a resident of Nizwan, Oman.
On December 26, a woman from Lucknow, Uttar Pradesh, had alleged that she was allegedly given triple talaq on phone by her husband. The woman got married at a very young age wanted to continue her studies. The husband objected to her further studies and threw her out of the house and allegedly gave her divorce by triple talaq on phone.
On December 22, a 24-year-old woman from Bulandshahr district of UP was allegedly gang-raped by three persons, including her husband, who also gave her triple talaq within a week of their marriage.
On December 11, a woman had alleged that her husband gave triple talaq to her and then eloped with her sister after her parents failed to fulfil dowry demand.
On December 10, a woman in Uttar Pradesh’s Bareilly had alleged that her husband gave her triple talaq after she went to attend Prime Minister Narendra Modi’s rally. The woman said that she went to thank PM Modi for bringing in legislation to ban instant triple talaq but her husband claimed that he divorced her because of her extramarital affair.
On November 21, a real-estate agent in Hyderabad was booked for allegedly divorcing his wife over the phone by uttering ‘talaq’ thrice.
On November 20, a 27-year-old beautician in Hyderabad was given divorce over the phone just 25 days after marriage.
On November 12, Yasmeen Khalid, the wife of Aligarh Muslim University professor Khalid Bin Yusuf Khan, alleged that her husband divorced her first on WhatsApp and then via a text message. The woman also threatened to commit suicide along with her children in front of AMU’s vice chancellor’s house.
On October 26, an NRI husband divorced his wife through an advertisement in the newspaper. A case was registered by the Hyderabad Police against the qazi who had advised the husband to give triple talaq.
On September 23, a 23-year-old woman and mother of a three-year-old son, lodged a complaint with the Rajkot Mahila police station against her husband for giving her triple talaq and throwing her out of the house 18 months ago.
Thought to provoke
After coming across so many issues it is to be noted that despite the law has been passed, the next step is to ensure its implementation. Whatever it may be, but Shayara Bano’s dedication and courage to challenge the age-old practice has imprinted her name with golden letters on the pages of history. She has become the voice of thousands of silent victims, thereby inspiring millions all across the Globe. She has now vowed to abolish Nikah Halala and polygamy. We salute and support her in this great battle, to make things right again, to start the Golden Age in the history of India. Indeed God is perfect (Subhanallah) and it is, without a doubt, the Almighty’s wish that justice was served (justice Mashallah). Ameen.
From the Holy Book of God (for further reading)
The verses quoted from the Quran’s Surah Al-Baqarah in the article were abridged. The complete verses are given below along with a few additional ones. (Translation:)
Divorced women remain in waiting for three periods, and it is not lawful for them to conceal what Allah has created in their wombs if they believe in Allah and the Last Day. And their husbands have more right to take them back in this [period] if they want reconciliation. And due to the wives is similar to what is expected of them, according to what is reasonable. But the men have a degree over them [in responsibility and authority]. And Allah is Exalted in Might and Wise.
Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah . But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah – it is those who are the wrongdoers.
And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah . These are the limits of Allah, which He makes clear to a people who know.
And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. And do not take the verses of Allah in jest. And remember the favor of Allah upon you and what has been revealed to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all things.
And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis. That is instructed to whoever of you believes in Allah and the Last Day. That is better for you and purer, and Allah knows and you know not.
Mothers may breastfeed their children two complete years for whoever wishes to complete the nursing [period]. Upon the father is the mothers’ provision and their clothing according to what is acceptable. No person is charged with more than his capacity. No mother should be harmed through her child, and no father through his child. And upon the [father’s] heir is [a duty] like that [of the father]. And if they both desire weaning through mutual consent from both of them and consultation, there is no blame upon either of them. And if you wish to have your children nursed by a substitute, there is no blame upon you as long as you give payment according to what is acceptable. And fear Allah and know that Allah is Seeing of what you do.
And those who are taken in death among you and leave wives behind – they, [the wives, shall] wait four months and ten [days]. And when they have fulfilled their term, then there is no blame upon you for what they do with themselves in an acceptable manner. And Allah is [fully] Acquainted with what you do.
There is no blame upon you for that to which you [indirectly] allude concerning a proposal to women or for what you conceal within yourselves. Allah knows that you will have them in mind. But do not promise them secretly except for saying a proper saying. And do not determine to undertake a marriage contract until the decreed period reaches its end. And know that Allah knows what is within yourselves, so beware of Him. And know that Allah is Forgiving and Forbearing.
There is no blame upon you if you divorce women you have not touched nor specified for them an obligation. But give them [a gift of] compensation – the wealthy according to his capability and the poor according to his capability – a provision according to what is acceptable, a duty upon the doers of good.