TRIPLE TALAQ: HOW ISLAM DESIGNS THE HARMONIAL FISSURES OF LIFE?

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This article discusses the Triple talaq in perspective of religion and law. This article is written by MUHAMMED JASEEL KK, a 2nd year law student from Jamia Markaz.

ABSTRACT


The human beings are living with inevitable andadamantine relation. In each and every pace of life he cannot through aside the relation. In the tandem of relation, the core relation that he binds is the marriage. But in case of some disputes the bounds of marriage is also broken. Perhaps it may become necessary, so Islam is not preventing the break up. But only in reasonable cases, and it is performed only after applying all the perceptional steps mandated by Islam. More than other religion, Islam is provides higher security to women on the completion the no relation should not be a break off because of some simple lapse happened in life. But the turbulent era the solemnizing practice of Islam especially the triple talaq is becoming the bone of contention in the community. It is in the point of query by accusing it is against justice and unscrupulous. In to what extent, the apex court of our country came to take a punitive measure with implementing Muslim women (protection of rights on marriage) bill 2019 as a heed to the religion. The practice was listed under criminal law despite the fact that, Marriage is a civil contract between two adults so the procedures to be followed in it’s break down should also be of civil in nature. The extent of religious rights guaranteed by the constitution itself wants to be taken in a special focus in the discussion. To left the fence of such misunderstandings my work manage to embark all the nook and corner to substantiate the Islamic transparency in the practice and unfolding all the aspect of triple talaq bill for making clear Islamic jurisprudence can be commonly accepted (regardless the law of Islam ) on contrary the lapse pointed in the bill by describing the loopholes of the bill. By scrutinizing the in and out of the bill the inferences revolved will expose all infirmities in the law on the grounds of  matrimonial living, contradiction to other laws, class legislation, etc.

INTRODUCTION

Human is a social organism. He has prudent intelligence. Because he absolutely different from another organisms. His approach towards his emotion and desire is not like other organism. If his life is like other organisms there is no reality to call him human. Because that is differentiate him from other organisms. Vice versa to other organisms the way of human for standstill of his generation is marriage. This relationship should be sacred. There we have to test the way sacred of Islam. Specially, this recent situation of misunderstanding. Islam considers marriage as a sacred relation. His life is leaded through this. It is essential to become this relation in love and unity. If not his or her life becomes miserable. No necessary to become all family life in love unity. Consent and contention is common. But some this problem may become turbulent with difficult to go forward with. In such a situation which we can never find solution only the divorce is the way. If not their two l
ives become miserable. That is Islam said that protect as well or send back her as well. This not a license to spread divorce widely. It is only route to escape in such unsolved crisis. Because the words of prophet(s) is remarkable that Is: divorce is more hateful for Allah in allowed matters.

It is better and humanity than live in hell of problems. Against some other religions the way provided by Islam is very beautiful. We can see

some religions they have no right to divorce. It is very miserable. Is the women protection on the way of Islam?

RESEARCH AND ELABORATIONS

COMPARISON OF RELIGION CREDOS

The law of every religion gives consent to divorce (separation between groom and bride) the divorce of Islam is called as Talaq. The religions are following many condition which is prescribed as mandate by the law of certain religion before applying such disgustful laws, because all religion regards this law is hateful even it is acceptable in some condition. The marriage is an indispensible thing in the life of a human, and it is was proved by the holy book of religions authentically. From stand of Quran, it utterly reveals that the first man and the prophet is Adam(as) but the only Adam(as) cannot generate the human race so Allah decided to create a couple to Adam(as).the evidence of marriage starts here and are universally accepted. But the case of divorce lays many oscillations between religions. On considering women the divorce is an isolation it may be happened her own favor or else so filliping this disgustful law as cornerstone in case of disputes is to be denied

The religions which allow divorce are keeping certain condition to invoke the law. But while comparing the religion the level of condition is

fluctuating, the regulation and cause for formulation of law of certain religion varies from other


Hinduism


The Hinduism that widely practiced in Indian subcontinent which endowed with many creeds and castes are not considering marriage is not a contract (many religion accept the literality of this marriage is contract) but  as‟samakara‟  is  that  give  shapes to  their  world,  which  comprise from birth of child, growing, educating getting married and up to their rights to deal in ancestors land. But in the case of divorce the general trend has been to forbid, and allow only men to remarry and they should not remarry even after widowhood, these rules are not meant for all but for upper cast. The Hindu law book „naradasmriti dharmashastra xii 96’ states “when her husband is lost or dead , becomes an ascetic,is impotent,or is expelled from caste in this five condition women can remarry‟katyayana adds that if the husband turns out to be other caste, or the some gotra, or if he is guilty of foul acts, the wife may remarry.

Comprehensively, the Hindu religion did not suggest any authentic document that substantiating divorce, because before decades there is no rights for women to remarry even to live. At this period unscrupulous system was binding among the Hindu women called sati as per this she cannot live after her husband‟s death. This condition was changed through the prohibition of sati act 1829 the  Hindu  religion  is  not extricating any documental evidence in their holy books like bagavathgeetha, even there is some bits which approving divorce a query is arising above „if the saying is

sustaining eld why the sati is followed? But recently the Hindu are  following Hindu divorce act regardless the traditional. Hereby the dynamic and unsustaining law of Hinduism is not giving a proper law of divorce.


Christianity


The great majority of Christian denominations affirm that marriage is intended as a lifelong covenant, but vary in their response to its dissolubility through the divorce. The Roman Catholic Church consider Christian Rites related to marriage is a permanent matter it should not be perished in the journey of life, therefore the Christians not allow couples to remarry, if the other couple is still alive and the marriage is not restricted but even they are allowed to participate in the catholic activities lifelong if they get remarried not against the church law. Some of the Christians denomination is allowing both marriage and Divorce.

We believe that the only legitimate marriage is the joining of one man and one woman (Gen. 2:24; Rom. 7:2; 1 Cor. 7:10; Eph. 5:22, 23). We deplore the evils of divorce and remarriage. We regard adultery as the only scripturally justifiable grounds for divorce; and the party guilty of adultery has by his or her act forfeited membership in the church. In the case of divorce for other cause, neither party shall be permitted to marry again during the lifetime of the other; and violation of this law shall be punished by expulsion from the church (Matt. 5:32; Mark 10:11,

Apparently, all the above facts reveal the extent of stability in Christian laws. Initially many upper caste are denying divorce and they consider the marriage is the foremost consideration which should not be avoided and there should be no any subtraction after the marriage But this rigid state are becoming a burden to the Christian community who are trapped in the marriage life without any satisfaction. And this law is also a rebuff to the couples who are not willing to live together through some personal issues.

But nowadays the Christianity also abiding the law of regime pointed under Christine divorce act

This is because of the rigid nature of religion without divorce people are started following the rules of government. This regrets by the people of own religion and the hardly advice of the eminent scholars of Christianity are illustrating documental legacy of the religion. And also clarifies that to what extent the religion is securing the bound of marriage.


Buddhism


The relational code of Buddhism is not mandating any divorce law it allows the followers to abide the rules of the respective regime.


Jainism


Jainism always considers marriage as a fate of human life also an un fortunate thing. The well known holy book of Jainism named “Deuteronomy” unfold in the chapter 22 and 24 it generally
It suggests that not better to divorce and encourage living together. The divorce activity of the Jainism is accepted by the bill of divorcement called „get’ if the get is given by the husband or wife or vice versa then the divorce will be accepted.

In the brief, an religion above mentioned are not providing bounded secure to the marriage life the divorce is happened just in steps and not cautioning the consequence of divorce by more inculcating steps to reach the divorce if there is some condition before the utter separation the person will get a chance to retake the words and can enjoy a delight life. Because the god will make near the heart after the separation
The other point to focus is no religion (mentioned) is not continually abiding the norms and rule of religion the norms are changing with the changes embark by generation.

TRIPLE TALAQ-BACKGROUND

Muslim family affairs in India are governed by the Muslim Personal Law (Sharia) Application Act, 1937 (often called the “Muslim Personal Law”). It was one of the first acts to be passed after the Government of India Act, 1935 became operational, introducing provincial autonomy and a form of diarchy at the federal level. It replaced the so-called “Anglo- Mohammedan Law” previously operating for Muslims, and became binding on all of India’s Muslims.

In traditional Islamic jurisprudence, triple talaq is considered to be a particularly disapproved, but legally valid, form of divorce. Changing social conditions around the world have led to increasing dissatisfaction with traditional Islamic law of divorce since the early 20th century and various reforms have been undertaken in different countries. Contrary to practices adopted in most Muslim-majority countries, Muslim couples in India are not required to register their marriage with civil authorities. Muslim marriages in India are considered to be a private matter, unless the couple decided to

register their marriage under the Special Marriage Act of 1954.Owing to these historical factors, the checks that have been placed on the husband’s unilateral right of divorce by governments of other countries and the prohibition of triple talaq were not implemented in India.


THE LAW

The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was passed on 26 July 2019 finally got the verdict (the Indian Supreme Court judgment of August 2017 described below) to all women. It makes instant triple talaq (talaq-e-biddah) in any form – spoken, written, or by electronic means such as email or SMS – illegal and void, with up to three years in jail for the husband.

PROVISIONS IN MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) 
BILLTRIPLE TALAQ: HOW ISLAM DESIGNS THE HARMONIAL FISSURES OF LIFE?

2017

  • Instant triple talaq remains cognizable with a maximum of three years imprisonment and fine.
  • Only complaint with the policy by the wife for her blood relative will be recognized.
  • The offence is bailable it means only a magistrate and not the police can grant bail. Bill can be granted only after hearing the wife..
  • Custody of the minor study of the man of children from the marriage will go to mother.
  • Maintenance allowance to the wife is decided by the magistrate.

2018. (Renewed provision)
  • All declaration of triple loading in written or electronic form to be void it means not enforceable in law and illegal
  • The fine amount is decided by magistrate.
  • No offence will be cognizable only if information relating to the offence is given by the wife or her blood relatives.
  • No offence is non bailable but there is a provision that magistrate can Grant bail accused but only after hearing the wife and if the magistrate is satisfied with reasonable grounds for granting bail.
  • The wife is entitled to subsistence allowance the amount is decided by the magistrate.
  • The wife is entitled to seek custody of her minor children from the marriage the owner of custody will be determined by the magistrate.
  • The offence may be compounded it means stop legal proceedings and settle the dispute by the magistrate upon the request of women against whom talaq has been declared.


ISLAMIC PERSPECTIVE


For what Islam allowed the talaq?
أبغض اىحاله اىي اهلل اىطالق )حديث(
We can’t find solution to all family problems
واالتي  تخافىن  وشىزهه  فعظىهه  واهجروهه  في  اىمضاجع  واضربىهه  فإن  اطعىنم  فال  تبغى ) عييهه سبيو(.سىرة اىىساء٣٤
When found disobedience from wife we have to give her good advice. If it didn’t influence, isolate her from bed. If the same is continued beat her without cracking her bone, skin and wounding her.

These all are the  first  stages.  We  can  only  approach  the outsides only if failed these respective stages.
وان مفته شقاق بيىهما فابعثىا حنما مه اهيه وحنمت مه أهيها ان يريدا إصالحها يىفك اهلل بيىهما ان اهلل مان عييىا
)خبيرا. (سىرة اىىساء ٣٤

If you can’t go in love you have to appoint an intermediate from husband’s family and an intermediate from wife’s family which leads to the discussion for a compromise. The selection of intermediate within the family helps to keep the privacy of family.

If we couldn’t find a solution through this discussion, Islam provides another  solution  that  is  „talaq‟.  But  it  is  only  after  the  failing  of  above  all chances to join.

Even though Islam prescribing a way to keep unity between them.
That is what Allah said:
(مرتان اىطالق)You must chant talaq two times. Then you can retake her to your life if the minds change. If you perform three talaq in a time you lost the chance of retaking her if your mind changed. But Allah hates this type of Talaq. It is offensive in all school of thoughts.
Talaq i
s a breaking of contract between father of bride and groom.
Father of bride says on the time of wedding
ازوجل عيى ما امراهلل تعاىي به مه امساك بمعروف او تصريح بإحسان
As the order of Allah I’m giving my daughter you as your wife. The order is to protect her as well or sent back her as well. If one said his three talaq in a time as a joke or not the talaq will be happened. And there is no scope to recall here to his life if they feel love between them. But if said his talaq in two times not three but one or two he can recall her if he want. There is scope for it. That is said Allah.

OUTCOMES


  2. Since Muslim marriage is a civil contract between two adult persons, the procedures to be followed on its breakdown should also be of civil nature
  3. Panel action of discouraging the practice of instant triple talaq is a myopic view as it leaves many other issues of economic of women and unaddressed
  4. when Muslim man inaccurate, thus violating the rights of conjugality of these two persons, criminalizing the husband would also lead to unwanted separation between the couple against the wishes of the wife
  5. In triple Talaq Indian law does not separate legally the couple. But, in Islamic perspective it should be unethical.

  2. The government is trying to criminalize the husband who announce triple talaq rather than strengthen the negotiating capacity of women by providing economic and legal support
  3. in any of personal law, the desertion of wife by a man is not a criminal offence. Therefore, while the bill aims to criminalize the pronouncement of Talaq. in effect it is only caramelizing the act of desertion of a Muslim wife by husband criminalize these desertion which constitutes only a civil offence for man of all other religion is discriminating under the constitution

  5. < span style="font-size: 14pt; vertical-align: baseline;">The bill allows for the aggrieved women as well as anyone related to her by blood or marriage to be the complaint, the problems become particularly acute in the case of inter religious marriage of muslim men with a woman of another religion

  7. The term of imprisonment up to three year is arbitrary and excessive. Serious crimes like causing death by Rash or negligent act( ipc sec 304A) pointing (ipc sec 147)injuring place or worship with intent to insult the religion (ipc sec 295) all punishable by 2 year in jail or fine or both. All these criminal acts have lesser punishment than pronouncing triple talaq which is arbitrary and excessive and violating of article 14 of constitution.

RESULTS AND FINDINGS


The main critic against the bill is the inconsideration of the divorced Women‟s’ life at all as it is mainly concerned with the marriage itself, which can only flourish between both spouses if both could attain an utmost
fidelity and content between each other. The conditions of a better living  life between both the spouses will completely break if a petition was filed from the wife or her blood relative. On the other hand, census in 2011 reveals that about 13.5 percentage of Indian women married before the age of 15 and 14 % between 14 and 19 years, as per the source there is better expectation to the lives of the women for another marriage and self content irrespective of prolong in the life of a husband he divorced her in the mind even hadn‟t in the words as per the law. It only ties up the women with the burden of a discontent life and completely decree the chance of betterment in her life. And when the talaq is chanted from the man as per the law it is not valid it means actually it is not happen; while in the religion there is no exception for chanting talaq bounded by laws or anything in to what extent, the Talaq is happened whether it is chanted only for a fun. In this way, if the wife becomes an extreme believer or so religious the discontent and religious constraints are ramming in her mind and being compelled to live with one who does not belong as her husband. On the other hand, the husband will not maintain utmost fidelity and self content with her. Both the spouses are in an imminent catastrophe. These are the happenings only expectable while the law becomes enforced. Then the life of the woman while the husband is in the jail is another anxiety. As the low the marriage is not divorced and she can‟t seek another one but want to bolster a life which went out of her gear for 3 years. Even the law leaves to give enough maintenance allowance to the women her rights and life is not protected. If she had a child under 18 or so the situation will go to further infirmity. As the survey says most triple Talaq cases are happened in law income, illiterate or semi educated families and if the main bread earner of the family get jailed the woman cannot lead the life herself. While
criminalizing the husband leads to unwanted separation between the bot. The constraints are also arise while the marriage is inter religious. In this situation as per the law a complaint can be filed by the blood relative of the women. So it can be misused to brotherly separate both the spouses and take the women back to their family. In any case the law creates Catastrophe for whole the Muslim family and except the women as a survivor.

In the law the possibilities of misuse is not relegated because under section 2 of criminal procedure police can initiate probe in the master of triple Talaq after registering an FIR without waiting for an order of the magistrate. And police can arrest the man without any warrant. Typically some issues are rampant in our country only because of the misuse of the power by police. Similarly the Law May shrink in police hands only and punitive misinterpretations are possible if needed. The courts have been headed towards an untoward circumstance by enacting of IPC 498 A of anti dowry provisions as the women misusing the law to events and exponentially use the marriage life for their sake. The same is to be seen by such a low of triple talaq as it is cognizable and it cannot be bailed like anti dowry provision. In addition to the misuse, the variance and contradictory with other laws are Paramount issue and a peer review is to be given for. As per the Hindu
Marriage Act Court proclaimed many cases that the minor child naturally belongs to the father and he will be the guardian. It was being well applied in every religion as in Hindu religion and while the Muslim women ( protection of rights on marriage) bill‟s provisions order to hand over minor children to the mother it is a dire contradictory between the laws. And if the law only trying to ensure complete dignity and
protection of the laws of women instant Talaq is not shrinking to Muslims; but 68 percentage of the instant divorces are from Hindu religion(Kapil sibel, Indian Express) all Muslims are only belong to 23 percentage of these divorces in the same way he says that the divorce rate between Hindu women is 0.76 while Muslims are only at 0.5. But there is no any acts constraints such an issue of Hindu families and the imprisonment only remains as an year for them .This is what the Parliament also have criticized the law in the name of class legislation. In India the Muslim marriages are only considered as a civil contract between two adult persons and the procedures to be followed on its acts are also to be civil in nature. But the law orders the case as criminal in nature. Actually the act mentions the word „instant talaq‟ many times but the instant talaq is not something which created or derived in Muslim family only; but the thing is familiar and being applied in many religions as well. As the objectives Court only focus the instant Talaq issues and put an end to it. But the cornering of the case in Muslims only is not rational.

CONCLUSION


The study would well express the fact that such an act from the government is only some disconcerts which will trigger more anxieties in the future towards the Muslims the community in India as a step for the
Anarchic  government hegemony towards the religions which represent the quiet cultural and religious diversity in our India.

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BIBLIOGRAPHY

  • The Holy Quran
  • Imam bukari, saheehul bukari
  • Sheikh zainudeen makdum, fathual mu-een
  • N.M Sheikh, Woman in Islamic society, published by kithab bhavan, first edition 1991,reprinted 2005, ISBN: 81-7151-131-7
  • Maaike Voorhoeve (2013). “Divorce. Historical Practice”. The Oxford Encyclopedia of Islam and Women. Oxford: Oxford University Press.
  • Amato, Paul R. and Alan Booth. A Generation at Risk: Growing Up in an Era of Family Upheaval. Harvard University Press, 1997. ISBN 0-674-29283-9 and ISBN 0-674-00398-5.
  • India today (*https://www.google.com/amp/s/www.indiatoday.in/amp/fyi/stor
y/triple-talaq-muslim-women-supreme-court-sharia-law-islam- 968630-2017-03-30)
(https://www.google.com/amp/s/www.indiatoday.in/amp/india/st ory/supreme-court-notice-challenges-triple-talaq-law-1590969- 2019-08-23)
  • Al Jazeera
(https://www.google.com/amp/s/www.aljazeera.com/amp/news/
2018/09/india-triple-talaq-instant-divorce-criminal-offence- 180919073349658.html)
  • YouTube
(https://youtu.be/Fg-XAzqLTx8)

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