Supreme decision On Irrevocable Talaq

The Real Ideology: According to Amir Ali, the reforms of Prophet Mohammad marked a new departure in the history of eastern legislation. The Prophet of Islam is reported to have said “With Allah, the most detestable of all things permitted is divorce”, and towards the end of his life he practically forba There are two kinds of divorce as per Muslim law – extrajudicial divorce and judicial divorce. There are three kinds of extrajudicial divorce as per Muslim laws – ones given by the husband, ones are given by the wife and ones agreed to through mutual agreement. The ones given by husbands are called talaq, zihar and ila; those by mutual agreement are mubarat and khula and the divorce given by the wife is called lian and talaq-i-tafweez. The wife gets her rights to divorce from Dissolution of Muslim Marriages Act 1939. de its exercise by men without the intervention of an arbiter or a judge. 

In Islamic marriage, the husband’s right of divorce is much greater than of the wife. Talaq in its original sense means repudiation but under Muslim law, it means a release from the marriage tie. Talaq-ul-biddat - It is sinful form of divorce. It is irregular mode of talaq introduced by Omeyyads 

In order to escape the strictness of law. Talaq-ul-biddat  is a form of talaq where it is performed as: 

[i] Three pronouncements made during a single Tuhr either in one sentence. 
[ii] A single pronouncement made during a Tuhr clearly indicating an intention of irrevocable to dissolve the marriage. 

It becomes irrevocable immediately when it is pronounced irrespective of iddat, The wife need not be present at the time pronouncement. There are many procedures of divorce in Islam which is unfortunately misunderstood by the majority of Muslims themselves due to ignorance. This process of Talaq is worst of all because: 

- It neither gives nor leaves any kind of reconciliation between parties. 
- It gives husband whole power to dissolve marriage even without giving any reason for divorce. 
- At last women have no ways to move to court for such a wrong. 

Earlier attempt: The matter of triple talaq was also earlier raised in the Shah Bano case was a milestone in the Muslim women's search for justice and the beginning of the political battle over personal law  An old woman went to court asking maintenance from her husband who had divorced her. The court ruled in her favour. Shah Bano was entitled to maintenance from her ex-husband under Section 125 of the Criminal Procedure Code (with an upper limit of Rs. 500 a month) like any other Indian woman. The judgment was not the first granting a divorced Muslim woman maintenance under Section 125. But a voluble orthodoxy deemed the verdict an attack on Islam. In that period the Congress Government, panicky in an election year, caved in under the pressure of the orthodoxy. It enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986. The most controversial provision of the Act was that it gave a Muslim woman the right to maintenance for the period of iddat (about three months) after the divorce, and shifted the onus of maintaining her to her relatives or the Wakf Board. The Act was seen as discriminatory as it denied divorced Muslim women the right to basic maintenance which women of other faiths had recourse to under the secular law. In 2001, the lawyer of Shah Bano Daniel Latifi file suit against judgement of Shah Bano case in the full constitutional bench of the Supreme Court, in effect, gave Muslim women a law on maintenance. While the 1986 Act appears to have worked better than it was expected to, what remains a concern to many is the inherent discrimination in excluding divorced Muslim women from a provision of law outside the realm of personal law, which is applicable to all other women and as an effect of judgement Muslim divorced women are also entitled to claim maintenance under section 125 of Crpc. 

Article 44  of our Constitution has remained a dead letter. There is no evidence of any official activity for framing a common civil code for the country. A common Civil Code will help the cause of national integration by removing disparate loyalties to the law which have conflicting ideologies. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably it has the legislative competence to do so A beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because; it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a Common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. 

Supreme Court of India heard against Irrevocable Talaq: The Five Judge Bench of the Supreme Court delivered the Judgment in the petitions challenging the constitutional validity of Triple Talaq declared the practice of Triple Talaq as unconstitutional by 3:2 majority. Justices Kurian Joseph, UU Lalit and RF Nariman delivered the majority Judgment. Chief Justice Khehar and Justice Abdul Nazeer were not in favor. After six days of the continuous hearing, the constitution bench had reserved its verdict on several petitions which challenged the constitutional validity of triple talaq on May 18. Supreme Court has banned Triple talaq for six months until the parliament made legislation dealing with such a practice tracing back to Shah Bano case same was the condition supreme court passed the judgement in favour of Muslim women’s right to maintenance and government to secure their Muslims vote and to satisfied and control Muslim aggression as they claim at that time that supreme court cannot invade Muslim personal which is totally based on Shariat laws the Parliament varied and enacted  Muslim women (Protection Of Rights On Divorce) Act 1986. On Triple Talaq, the Prime Minister reiterated that the Muslim community should not allow this issue to be politicised, the statement said. 

He urged the delegation members to take the responsibility for initiating reform in this regard, the PMO said. 

The delegation members appreciated the Prime Minister’s stand on the issue of Triple Talaq, the statement said, Now as conditions are wistful the parliament before making legislation may get Nonchalant opinion from every community within India, Sanguine to see how present government wrapped up and will tackle situation and prepare legislation acquainted with present scenario.

 

sonali sharma 
on 24 August 2017
Published in Constitutional Law
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