Kerala Chief Minister Pinarayi Vijayan on Tuesday raised questions over the ban on triple talaq, asking why it was was criminalised “when divorce happens in all religions.” Speaking at a conference, the CM said, “people from different religious backgrounds might have come here for the conference. Can we use a different mode of punishment for each person? For a person following a certain religion, there’s one law and for another, there is another law. Isn’t this what we are seeing in the case of the triple talaq?”
“The triple talaq was criminalised. Divorce happens in all religions. All others are seen as civil cases. Why is it a criminal offence for Muslims alone? So, in the case of a divorce, if it’s a Muslim, then he can be jailed. We are all Indians. Can we say that we got our citizenship because we were born in a particular religion? Has religion ever been the basis for citizenship?” he further asked.
What is Triple Talaq?
Triple Talaq is a type of marriage dissolution in Muslim Law in which a husband can divorce his wife by saying Talaq three times in a row, as per a report by Legal Services India.
The wife’s attendance is not essential; she can be given Talaq without providing a valid explanation. Under Muslim law, the term “Talaq” refers to the husband’s rejection of his wife’s marriage. The practise of triple Talaq has been practised in India since ancient times, the report says.
According to Islamic law, there are three different divorce procedures: Ahsan, Hasan, and Talaq-e-Biddat (triple talaq). The first two are revocable, but the third one is not. It is most common in Muslim communities in India that adhere to the Hanafi School of Islamic Law.
Why Was Triple Talaq Banned?
The Supreme Court declared the instant triple talaq (talaq-e-biddah) to be unlawful on August 22, 2017, in a historic judgement. Three of the five judges on the court agreed that it is unconstitutional to practise triple talaq. The two that remained deemed the procedure legal.
The Triple Talaq practise was deemed unlawful and unconstitutional by the Indian Parliament on July 30, 2019, and declared punishable as effective August 1, 2019.The 23 nations worldwide that forbid triple talaq include three of India’s neighbours: Pakistan, Bangladesh, and Sri Lanka, as per a report by Hindustan Times.
The case began in 2016, when the Supreme Court asked the former Attorney General Mukul Rohatgi for advice on arguments contesting the constitutionality of “triple talaq,” “nikah halala,” and “polygamy,” in order to determine whether Muslim women experience gender discrimination in divorce cases, a report by Indian Express said.
The Centre, which opposes triple talaq, informed the top court that, in the interests of gender equality and secularismthese traditions need to be reexamined. Afterwards, the Supreme Court announced the creation of a five-judge constitutional bench to hear and consider challenges to polygamy, nikah halala, and the practise of “triple talaq.”
The All India Muslim Personal Law Board (AIMPLB) informed the Supreme Court in March 2017 that the subject of triple talaq is outside the purview of the judiciary and that these concerns should not be treated by the court, which gave the issue political traction, the report said.
However, the Supreme Court overturned the decade-old practise of instant triple talaq later, citing violations of Articles 14 and 21 of the Indian Constitution. Six days after the hearing began on May 11th, the five-judge panel led by Chief Justice J. S. Khehar had reserved its decision. The court’s decision only addressed the constitutionality of triple talaq; it made no mention of polygamy or nikah halala as they relate to Muslim personal law.
What’s the Controversy Now?
Vijayan’s opposition to the Triple Talaq ban follows similar criticism from some opposition factions. After the passage of the Triple Talaq bill, a number of opposition parties and prominent Muslim politicians had criticised it, as per a report by DW. Congress at the time had urged that the bill be referred to a parliamentary committee for more discussion and review.
However, rights organisations and feminists, both Muslim and non-Muslim, have criticised the “triple talaq” or instant divorce practise as a violation of human rights. There have been reports of Muslim husbands divorcing their spouses using Skype, emails, text messages, and phone calls, the report says.
The bill’s opponents claim that a three-year prison sentence for those who practise instant divorce could be “abused to discriminate against Muslims”, the report says. The DW report had quoted Ghulam Nabi Azad as saying that the “BJP meddles in domestic Muslim affairs and that the legislation had demonised Muslim men.”
How UCC Figures Into the Debate
The BJP demand for a uniform civil code has also created opposition din in the past. According to each community’s religion, faith, and beliefs, distinct laws apply to issues like marriage, divorce, inheritance, and adoption in India. But since Independence there has been discussion of a Universal Civil Code, or UCC—a single set of personal laws applicable to all citizens, regardless of their sexual orientation, gender, or race. It is also enshrined in the constitution as a DPSP.
While poll season has brought up UCC into the debate again with the BJP citing regressive personal laws such as the banned Triple Talaq, the issue is complex. As Soutik Biswas puts in a BBC report, “Personal laws are fiendishly difficult to unify in a staggeringly diverse and vast country like India.”
The argument he makes is that personal law is not entirely uniform, even within the religion.
However, with the UCC issue being intricately linked to the Triple Talaq ban debate, the matter is raked up every now and then, in political circles. Some leaders have stated after Vijayan’s comments that the Kerala CM was making such remarks for political gains.
Read all the Latest Explainers here