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EDITORIAL ANALYSIS : Moving out of the shadows, from silence to assertion

Source: The Hindu

 

  • Prelims: Triple Talaq, Talaq-e-hasan, khula, Citizenship (Amendment) Act (CAA) etc
  • Mains GS Paper II: Institutions and policies constituted for the protection and betterment of vulnerable sections of society etc

 

ARTICLE HIGHLIGHTS

  • A Talaq-e-Hasan petition filed by a Ghaziabad-based woman, seeking to make the divorce pronounced by the husband at an interval of at least a month extra-judicial

INSIGHTS ON THE ISSUE

Context

 

Talaq-e-HasanTriple talaq
Only a single revocable divorce takes place through the first pronouncement of Talaq-e-Hasan

 

In instant triple talaq a man pronounces multiple divorce in one go.
Unlike instant triple talaq, Talaq-e-Hasan is  pronounced with a gap of at  least one month or one menstrual cycle.It has no scope for reconciliation between the feuding couple, and often ends a marriage instantly.
The husband and wife are supposed to  live together after this pronouncement and have  the option of rapprochement.The man need not cite any reason for the divorce and the wife need not be present at the time of pronouncement of talaq.
If the couple is  not able to  mend fences in the intervening period and the husband does not annul divorce through word  or by establishing intimacy,  the talaq stays valid.It is, as the judges held, not mentioned anywhere in the Quran which prescribes a code of divorce largely through Surah Baqarah, verses 226 to  237 and the opening six verses of Surah Talaq.
At  the end of this month, the husband has to  pronounce divorce for the second time. Likewise for the third time.Incidentally,  triple talaq in this  manner has been banned in many Muslim countries, including Egypt, Syria, Jordan, Kuwait, Iraq, Malaysia etc.
After the second pronouncement too,  the divorce is  revocable, and the couple may resume their conjugal relationship anytime they so desire. If, however,  the third pronouncement is made after at  least one menstrual cycle, then irrevocable divorce takes place.A Muslim husband declaring instant Triple Talaq can be imprisoned for up to three years is alleged to be disproportionate for a civil offence.
No divorce can be administered when the woman is undergoing her menstrual cycle. Even in the case of pregnancy,  no divorce takes place.Any pronouncement of “talaq” by a Muslim husband to his wife in any manner, spoken or written, will be void and illegal under Muslim Women (Protection of Rights on Marriage) Act, 2019.

 

Court’s observation in Talaq-e-Hasan:

  • Not so improper: It observed that the practice of Talaq-e-Hasan or divorce pronounced to the wife once a month for three months is “not so improper”.
  • Mutual consent: Court explored the possibility of exploring divorce through mubarat or mutual consent.
  • Khula: The judges referred to the option of khula, or a Muslim woman’s right to divorce as well

 

Present status of Muslim Women:

  • Rights in marriage: Increasing Muslim women standing up for their rights in marriage or otherwise
  • Departure from old: A clear departure from times when women left the husband’s house in silence, battered, bruised and fearing social opprobrium.
  • Martial grievances: More Muslim women are now approaching various courts, including Darul Qaza or shariah courts, for redress of marital grievances.

 

Court judgments:

  • Shayara Bano case (2017): The Supreme Court had declared the practice of Triple Talaq (talaq-e-bidat) as unconstitutional.
  • Kerala High Court judgment of 2021: It upheld the validity of khula.
    • The court called khula, “the form of divorce conferred upon the wife similar to talaq conferred upon the husband”.

 

What are the changes:

  • Hijab issue: Many women stood up to be counted, arguing forcefully their right to wear what their faith.
    • Many pointed out the rights granted under the Constitution of India to the minorities to protect their religion, language and culture.
  • Equality: It is not just women who have to observe purdah in Islam.
    • The men too have their own limited purdah
  • Petition in the Haji Ali Dargah case in 2016): Muslim women have also been asserting their right to enter mosques to pray.
  • Citizenship (Amendment) Act (CAA): Protests were not by the traditional Muslim leadership but the women of the community

 

Obstacles faced:

  • Man’s consent: Even as women assert their right to end a marriage through khula, some clerics still insist on the man’s consent, thereby defeating the very purpose of khula.
  • Misuse of provisions: On the same lines, even as cases against nikah halala are pending before the Supreme Court, some maulanas still tend to misuse the provision for halala.
  • Circumventing the Koran: The Koran allows two divorces, considering them revocable, and the third one is considered final, some clerics tend to circumvent it through a distortion of the provision of halala.
  • Final divorce: Many maulanas still consider a divorce pronounced in haste as final, and tell the victim to marry another man.

 

Way Forward

  • Indian Muslim women have found their voice: Be it the issue of divorce or the right to pray in a mosque or don the hijab to college, they have a mind of their own and are ready to express it.
  • Gradual changes: Muslim women are taking practices in the Supreme Court.
    • The quiet churning within the Muslim community could well herald the winds of change.

 

 

QUESTION FOR PRACTICE

  1. What are the continued challenges for women in India against time and space?(UPSC 2019)

 

(200 WORDS, 10 MARKS)