talaq

“Triple talaq” is unconstitutional, says the Supreme Court of India

Talaq. Talaq. Talaq.

In some Islam sects, when a husband says the above to his wife, it means that the marriage is thereby dissolved. The woman is divorced.

“Talaq” is Arabic for “repudiation”. In Islamic law, talaq refers to the right of a husband to dissolve his marriage by simply announcing to his wife that he has repudiated the marriage. This practice is mostly prevalent mostly amongst Muslims who subscribe to the Hanafi Islamic school of law.

However, talaq is considered reprehensible and it is required that it be used by a husband only when there is a compelling cause to use it, such as an irreconcilable difference. According to classical jurists of sharia, talaq to be considered a valid repudiation must confirm to the following:
a) It must be made in clear unambiguous terms
b) The husband must say it when he is sound mind and not coerced

Upon talaq, a woman is entitled to full payment of bride wealth, if it was not paid in full. The husband is also obliged to maintain her and to also provide child support.

However, the husband can revoke the repudiation at any time during iddah (the waiting period) which lasts three full menstrual cycles. The purpose of iddah is to give the couple a chance to reconcile and to ensure that the wife is not pregnant. A resumption of sexual relations between the husband and his wife automatically retracts talaq. The divorce becomes final after iddah.

If, however the husband repudiates his marriage for the third time with the same wife, the couple cannot remarry unless the woman remarries another man, first (nika halala).

In the news
On the 22nd of August 2017, the supreme Court in India declared that the practice of “triple talaq” which has the effect of instant divorce against the woman to whom it is said in the Islamic religion is unconstitutional, void and illegal. The court also directed the Union of India to consider appropriate legislation on the matter. The “triple talaq” system was suspended for six months until an appropriate law is put in place.

This is not the first time a court of law has banned “triple talaq”. 22 Muslim countries such as Turkey, Cyprus, Tunisia, Algeria, Sarawak, Pakistan, Bangladesh, among many others have banned “triple talaq”

Majority of Muslim women have welcomed the supreme court ruling and termed it as progressive. Others noted that the ruling is progressive constitutional jurisprudence. Other people have opposed the ruling of the court and say that it amounts to interference with personal laws of the Muslim community. Legal scholars however insist that a constitution is in its nature the supreme law of any country and any other law (cultural, political, economic or religious) which is contrary to the constitution is null and void (to the extent of its inconsistence).

In culture
The practice of immediate repudiation of marriage has generated debate on women’s rights and on issues of marriage, divorce and succession. Aren’t women entitled to equal rights with men on the formation and dissolution of marriage? Aren’t women entitled to inherit from and to pass on property to their kin upon demise? What then is the status of a woman who is a victim of “triple talaq”?

According to the teachings of Islam, marriage is a contract. Special procedures on how to annul a marriage in Islam are also set out. A woman can initiate the divorce under what is called “khula“, while a man can end his marriage by pronouncing talaq thrice. This is supposed to be followed by arbitration where the man and woman discuss the issue which is the basis of the divorce, witnesses are brought, child maintenance and custody are discussed, and alimony.

In instances where both the man and woman want the divorce, it is also permitted and can be granted. It is what in modern law we call divorce by consent. In Islam, it is called “Talaq-e-Mubarra
But this divorce procedure has often been misused by men. The arbitration never happens.

The law
Three judges out of five sitting on the constitutional bench in the Supreme Court of India ruled that the “triple talaq” law was unconstitutional. Particularly, they pointed out that the law violated articles 14 and 21 of the constitution of India
Article 14 provides thus:
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India
Article 21 provides thus:
No person shall be deprived of his life or personal liberty except according to procedure established by law.

And indeed, it is a constitutional principle that all people are equal within the law. More so, men and women have the right to equality both at the formation and at the dissolution of marriage. For one party to exercise a right which the other person does not have or is not permitted to exercise amounts to discrimination.
The full text of the judgement can be accessed here.

Conclusion
This supreme court of India ruling on immediate repudiation of marriage by men by merely stating a certain word is a landmark. Gone are the days when we had to rely on decisions by English courts of law. The persuasive nature of precedents and the tendency of countries borrowing legal principles from other countries cannot be undermined. The proximity of India to Africa both geographically and culturally cannot be overlooked and as such, we should look out for judgements in the same spirit in Africa, particularly in East Africa.

Equality, non-discrimination and liberty are norms every progressive society should aspire to achieve. These norms are achievable, only when our laws and law enforcers disregard archaic, repugnant and unconstitutional practices from the past.

BY SAMALI BITALA

This article appears in our digital law newsletter, The Deuteronomy Vol 8, Issue 4 of August 25th, 2017
To receive The Deuteronomy in real time, click HERE

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