Meaning of Triple Talaq: Triple Talaq was present only for the Muslim communities regarding marriages. It is also known as talaq-e-mughallazah, which means an instant divorce. This had to be pronounced thrice, by any means like electronic means, like SMSs, written, spoken, etc. This could be spoken by the husband only, by pronouncing the word “Talaq” thrice, in one breath. This is a form of an instant divorce that is used used by the Muslim community in India, especially by the Hanafi Sunni Islamic School of Jurisprudence.
The subject of Triple talaq has always remained as a subject of controversy as after a man would divorce his wife, she would have no place in the society. She would be looked like a sinister in society. Therefore, it raised questions regarding the fundamental rights of human beings, like the right to equality, human rights, secularism, issues regarding justice, etc. According to the Islamic form of marriage, a man can have a maximum of four wives, and not beyond that. If he goes for a fifth marriage, then that marriage will be considered as void. For a new marriage to take place, either there should be a death of one of the four wives, or a divorce.
Ban on Triple talaq: In the year 2019, The Muslim Women (Protection of Rights on Marriage) Act, 2019 was passed which had a very lengthy discussion regarding the Triple talaq bill, where the opposition had finally got the verdict. This Bill had made Triple talaq illegal from 1st August 2019. The Bill mentions that as previously, a Muslim husband could get divorced from his wife, by pronouncing the word “Talaq” thrice, in one breath, that no longer remained valid. If a husband was found doing that, then it can lead to consequences of up to three years imprisonment. According to the new law, if a woman has children, then she can claim maintenance from the husband, which is also known as Alimony.
The way it was practised: As we all know that the word “Talaq” had to be pronounced thrice by the husband in one breath, had lead to a divorce. It could be either in a written form, or through an electronic form, or telephone, email, or social media. One thing that must be remembered is that during the period of Iddat, which means the period during which the wife is pregnant, then the divorce becomes irrevocable. According to the Islamic form of marriage, a divorced woman could not remarry until and unless she first married another man. This practice is known as nikah halala. In this case, until and unless the woman remarried, the woman retained the custody of the made toddlers and prepubescent female children. Beyond those restrictions, the children would come under the guardianship of the father.
A Brief History: More than 1400 years ago, during the period of Caliph Umar the practice of Triple talaq was found. Today, the Supreme Court uses the words “whimsically”, “capriciously” and “manifestly arbitrary” for breaking marriage by a Muslim husband.
In the Islamic Holy Book, Quran, there has been no mention of Triple talaq and is largely disapproved by the Muslim Legal scholars. In many countries like Pakistan and Bangladesh, especially in Islamic regions, there has been a bar in the practice.
Case: A landmark case, Shayarya Bano v Union of Indian and Others, 2017, the five Judges Bench had heard a very controversial topic. The Bench had constituted members like Chief Justice JS Khehar, who belonged to a Sikh community, Justice Kurian Joseph, who belonged to a Christian community, Justice RF Nariman, who belonged to a Parsi community, Justice UU Lalit, who was a Hindu and Justice Abdul Nazeer, who was a Muslim.
The Justices had wondered whether the Triple talaq belonged as an essential feature under Article 25(1) of the Indian Constitution, which mentions about the guarantee of Fundamental Rights to all the citizens of India, where it allows to practice profess, or propagate any religion.
According to the 397-page ruling, even though the two Judges had upheld the validity of instant Triple talaq, whereas, the three other Judges had held it to be unconstitutional, barring a 3-2 majority. The five Judges Bench had asked the Central government to promulgate legislation within six months to govern the marriage and divorce within the Muslim community. The Five Judges Bench had also mentioned that until and unless the Central Government would promulgate this legislation, an injunction would be applied to the husbands who had pronounced an instant Triple talaq to their wives.
Whether a Muslim Wife Can Divorce Her Husband: According to Khula, a Muslim wife can divorce her husband, in the form of returning the dower which she had received from her in-laws. The word Khul means, which allows a Muslim woman to initiate the process of divorce.
Most of the Islamic Schools of Law agree to the fact that the husband is not entitled to more than the initial amount of dower, that is given to the wife. Though some people suggest that some husbands are entitled to a higher amount of compensation, while some suggest that the husbands are not supposed to receive any compensation.
In the perspective of the fact of compensation, most of the Islamic Schools of Law think that, husband’s agreement is compulsory for granting a divorce, unless extenuating circumstances apply. Whereas, some other schools of law suggest that the husband’s agreement is not compulsorily required, only if the grounds of filing a divorce are justified.
The views of the courts vary according to different schools of Law, about whether triple talaq can be accepted as a form of divorce, or judicial annulment is required. Imam is applicable when the Muslim husband does not agree to file a divorce and the wife goes to a mediator, who is a third party for consultation.
Iddah is the waiting period that is given to the wife only when the wife grants a divorce through khul. According to many people, it includes a majority position in the Hanafi, Maliki, Shafi’i and Hanbali schools, where the waiting period is same as the waiting period for a divorce.
If the mother remains unmarried, then the custody of the children remains with the mother, but the father can provide care to the child or children only if the mother is unable to take care. After a certain age, the child is given a freedom to choose to decide about his/her custody.
Rituals in a Muslim Marriage: The rituals that are conducted in a Muslim marriage are as follows:
- Salatul Ishtikara: This ritual is conducted before the wedding, where the Imam is found to perform prayer to seek Allah’s blessings for the marriage. We can also say that only after this ceremony, there is an official announcement of the marriage.
- Imam Zamin: This follows the Salatul Ishtikara. This ritual happens when the groom’s mother goes to visit the bride’s home. The mother is found to bring gifts for blessings like gold coins, or silver coins, sweets, etc, which are found to be wrapped in a scarf and tied around the wrist of the bride, which signifies a formal welcome or greeting to the wife in the new family.
- Mangi: This means engagement. Here, guests are invited to the ring ceremony. This ceremony is conducted two days before the marriage. Both the bride and the groom wear yellow garments in their respective homes where they get smeared with turmeric paste and sandalwood paste in rosewater. Later, they also bath in holy water
- Mehendi: In a Muslim wedding, Mehendi is highly important. Beautiful designs are drawn on the hands and feet of the bride.
- Sanchaq: In this ceremony, members of the groom’s family go and visit the bride’s family, where, they gift things like jewellery, garments, accessories as a token of blessing. People must remember that this is the last and final ceremony before marriage
- Baraat: This is the most exciting event in a marriage ceremony. The man is served with cool drinks along with his brother or any closest brother figure. To make a beautiful path for the groom to enter, ittar or rosewater is spread
- Nikah: This ritual is followed by the Nikah Nama. This is an official marriage contract. In this ceremony, both the newly wedded wife and the husband recite in front of two witnesses, each from the bride’s side and the groom’s side, as mentioned in the Holy Book, Quran. After signing the official marriage, a Khutba is recited, followed by the marriage vows in the Holy Book. In the end, all the elders perform durud, which means blessings on the newlywed bride and groom.
- Arsi Mushraf: This ritual takes place after the marriage. In this particular ritual, both the bride and the groom look at each other, though through a mirror in between them.
- Walimah: This ceremony means that the marriage is complete. This is actually the reception party, where both of them are treated royally, with lots of gifts from the guests with love, affection and blessings. In this occasion, lots of fun take place, wherefrom both sides, the relatives, friends, extended family members are introduced.
- Chauthi: In this ceremony, both the newlywed bride and groom visit the bride’s family on the fourth day of the wedding. In this ceremony also, the bride is greeted with lots of gifts, love and affection. This marks the end of a Muslim wedding.
(Author: Kinkini Chaudhuri)