TRIPLE TALAQ RESEARCH PAPER PDF

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THIS RESEARCH PAPER GIVES DETAILS ABOUT TRIPLE TALAQ IN INDIA....

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2020 B.A.LL.B. (HONS.)

RESEARCH PAPER (Subject):MUSLIM LAW Topic: TRIPLE TALAQ IS NOT ISLAMIC AND IT IS DEPARTURE AND DEVIATION FROM THE TENETS OF THE QURAN TO UNDERMINE THE RIGHTS OF MUSLIM WOMEN.

Submitted to: Asst. Prof.: DR. KUSUM JOSHI Submitted by: Name: SHAKTIKA KULSHRESTHA

Year :2ND YEAR Semester :IV(B)

DECLARATION I hereby declare that the work reported in the research paper entitled “TRIPLE T TALAQ ALAQ IS NO NOT T ISLAMIC AND IT IS DEP DEPARTURE ARTURE AND DEVIA DEVIATION TION FROM THE TENETS OF THE QURAN T TO O UNDERMINE THE RIGHTS OF MUSLIM W WOMEN. OMEN.”

submitted at Indore Institute of Law is the

outcome of my own efforts and no part of this research paper has been copied in any unauthorized manner and no part of it has been incorporated without due acknowledgment to their rightful sources and source persons . I further certify that the research paper has not been published or submitted for publication anywhere else nor it will be sent for publication in future.

Signature of studentSHAKTIKA KULSHRESTHA

Date-

CERTIFICATE This is to certify that SHAKTIKA KULSHRESTHA has successfully completed the project work titled TRIPLE TALAQ IS NOT ISLAMIC AND IT IS DEPARTURE AND DEVIATION FROM THE TENETS OF THE QURAN TO UNDERMINE THE RIGHTS OF MUSLIM WOMEN. on the subject MUSLIM LAW for the partial fulfillment of the DAVV norms under the supervision of Prof. DR. KUSUM JOSHI at Indore Institute of Law. This project is the record of AUTHENTIC WORK carried out during academic year 2020

Faculty Signature -

Date -

ACKNOWLEDGEMENT It is not possible to prepare a project report without the assistance and encouragement of

other people. This is certainly no exception. On the very outset of this project I

would like to extend my sincere and heartfelt obligation towards all the personages who helped me in this endeavor. Without their active guidance , help , co-operation and encouragement , I would not have made headway in this project.

I am ineffably thankful to DR. KUSUM JOSHI. For conscientious guidance and encouragement to accomplish this assignment.

I extend my opportunity.

gratitude

to

INDORE INSTITUTE OF LAW for

giving

me

this

I also acknowledge with a deep sense of reverence , my gratitude towards my friends and members of my family who have always supported me morally as well as economically.

Thanking You SHAKTIKA KULSHRESTHA

RESEARCH METHODOLOGY The method adopted for the research is basically content analysis of the available secondary data. Content analysis is a methodology in the cultural relativism and imperialism by which text are studied as to authorship, authencity, or meaning. Content analysis is a summarizing, quantitative analysis of messages that relies on the scientific method (including attention to objectivity, inter- subjectivity, a priori design, reliability, validity, generalizability, replicability, and hypothesis and is not limited as to the types of variables that may be measured or the context in which the messages are created or presented. In this research the methodology of content analysis is used for analyzing internet data comprising of various articles, news articles, reports of various institution etc. & books on the relevant topic to bring forth useful & appropriate information as it is the doctrinal type of research. The study is mainly based upon the primary data. Primary data was collected through survey method. Questionnaire was used for collecting data. Questionnaire was developed based on past experience of the researchers and review of literature on the topic done by the researchers.

OBJECTIVE The point of discussion of this paper is to know about the realities relevant to triple divorce in muslims. The objective of this paper is to explain the real meaning of triple talaq. It answers the query that what does the Sharia law say about this issue and how does it safeguard the rights of women. Actually, there is the wrong perception about muslim women that they are deprived of their rights especially under the system of Talaq. The paper at hand also figure out the views of different sects on triple divorce. This precisely discusses the relevant case laws. Also, it explores the legislation on triple divorce, enacted in different states.

RESEARCH QUESTIONS      

WHAT IS MUSLIM LAW? WHAT IS QURAN? WHAT IS TALAQ-E-BIDDAT? WHAT WERE SUPREME COURTS VERDICTS? SHAYARA BANO V/S UNION OF INDIA AND OTHERS 2017. DOES THREE CONSECUTIVE ANNOUNCEMENTS OF TALAQ AMOUNTS TO ONE TALAQ?  IS TALAQ AGAINST THE RIGHTS OF MUSLIM WOMEN?

ABSTRACT The objective of this paper is to explain the real meaning of triple talaq. It answers the query that what does the Sharia law say about this issue and how does it safeguard the rights of women. Actually, there is the wrong perception about muslim women that they are deprived of their rights especially under the system of Talaq. The paper at hand also figure out the views of different sects on triple divorce. This precisely discusses the relevant case laws. Also, it explores the legislation on triple divorce, enacted in different states. According to book of Allah, Holy Quran, marriage is the gathering of two human beings of opposite gender in “mawaddah and rahma ” , love and mercy. In the religion of Islam, “marriage” 1 is considered as holy and spiritual agreement. But regardless of this, marriage is partially sacred 2 and partial civil contract. Marriage is regarded as a holy ritual. But, when we talk about rights and duties of both parties, they are lead under ordinary contract.

TABLE OF CONTENT 

INTRODUCTION



MUSLIM LAW



QURAN



TALAQ-E-BIDDAT



SUPREME COURT VERDICTS



SHAYARA BANO V/S UNION OF INDIA AND OTHERS



THREE CONSECUTIVE PRONOUNCMENTS OF TALAQ(OPINION)



FINAL ANALYSIS



CONCLUSION

INTRODUCTION According to book of Allah ,Holy Quran, marriage is the gathering of two human beings of opposite gender in “ mawaddah and rahma ” , love and mercy. In the religion of Islam, “marriage”

is considered as holy and spiritual agreement. But regardless of this, marriage is

partially sacred

and partial civil contract. Marriage is regarded as a holy ritual . But , when

we talk about rights and duties of both parties, they are lead under ordinary contract. Islam is a peace loving religion. It grant a couple to right to separate and does not impel a couple to undergo unhappy and discomfort life. Concurrently, it does not propose dissociation and segregation on superficial and petty causes. In Islam, divorce, when not indispensable , is strongly condemned and discouraged. It is reported that Holy Prophet said that “ with Allah the most detestable of all thing permitted is divorce. ” In Shariah, dissolution of marriage by the act of parties may in following forms: 1. by the husband: i. Talaq (repudiation) ii. Ila (vow of continence) iii. Zihar (injurious assimilation) 2. by the wife: i. Talaq e tafwid (delegated divorce) ii. Khula (redemption) 3. by common consent: Mubara'at (mutual freeing) 4. by judicial process: i. Ili’an (mutual imprecation) ii. Faskh (judicial rescission) There is a lot of misconception among people relating to divorce in Islam. It is a widely held view that a muslim husband is authorized to divorce his wife whenever he wants even when there is no reason. This concept is wholly wrong. A muslim husband can’t exercise his right

to divorce in minor issues. Uttering the words of talaq three times, at one sitting, is extremely criticize, censured and disapproved. The point of discussion of this paper is to know about the realities relevant to triple divorce in muslims. The objective of this paper is to explain the real meaning of triple talaq. It answers the query that what does the Sharia law say about this issue and how does it safeguard the rights of women. Actually, there is the wrong perception about muslim women that they are deprived of their rights especially under the system of Talaq. The paper at hand also figure out the views of different sects on triple divorce. This precisely discusses the relevant case laws. Also, it explores the legislation on triple divorce, enacted in different states.1

1 Fatima Tariq Kinnaird College for Women

MUSLIM LAW Sharia law is Islam's legal system. It is derived from both the Koran, Islam's central text, and fatwas - the rulings of Islamic scholars. Sharia literally means "the clear, well-trodden path to water". Sharia law acts as a code for living that all Muslims should adhere to, including prayers, fasting and donations to the poor. It aims to help Muslims understand how they should lead every aspect of their lives according to God's wishes. Sharia can inform every aspect of daily life for a Muslim. For example, a Muslim wondering what to do if their colleagues invite them to the pub after work may turn to a Sharia scholar for advice to ensure they act within the legal framework of their religion. Other areas of daily life where Muslims may turn to Sharia for guidance include family law, finance and business.2 Sharia law divides offences into two general categories: "hadd" offences, which are serious crimes with set penalties, and "tazir" crimes, where the punishment is left to the discretion of the judge. Hadd offences include theft, which can be punishable by amputating the offender's hand, and adultery, which can carry the penalty of death by stoning. Some Islamic organisations have argued that there are many safeguards and a high burden of proof in the application of hadd penalties. The UN has spoken out against death by stoning, saying it "constitutes torture or other cruel, inhuman or degrading treatment or punishment and is thus clearly prohibited".

2 www.toppr.com

QURAN The Quran represents the fountainhead of Divine guidance for every Muslim. Its revelation to the Prophet Muhammad (peace be upon him) and his practical implementation of the revelation, completed God’s blessing for humanity, in providing us with a belief and value system that is valid for all times. The Quran confirms the revelations given to earlier Prophets, though these might not be accessible to us, in the form they were originally revealed. The most sublime language and a rational message that directly appeals to the human heart have caused this Divine book to move nations and civilizations. It will continue to guide those who turn to God with a sincere heart, for all times.3 The Holy Quran is the Holy Book or the Scripture of the Muslims. It lays down for them the law and commandments, codes for their social and moral behaviour, and contains a comprehensive religious philosophy. The language of the Quran is Arabic. It is a compilation of the verbal revelations given to the Holy Prophet Muhammad over a period of twenty three years. The Holy Quran is divided into 114 Chapters and each Chapter consists of individual verses. The Chapters (called Surah in Arabic) are of varying lengths, some consisting of a few lines while others run for many pages. The text of the Holy Quran has remained unchanged over the past 1500 years. The millions of copies of the Quran circulating in the world today are all identical down to a single letter. And this is not strange since God says in the Holy Quran that He Himself will guard this book: “Surely it is We Who have revealed the Exposition, and surely it is We Who are its guardians” (15:10 ) To the Muslims, the Quran is the Word of God and contains complete guidance for mankind. Much of the Quran is about God, His attributes and man’s relationship to Him. But it also contains directives for its followers, historical accounts of certain prophets and peoples, arguments for accepting Muhammad as a genuine Prophet and good news for the believers and warnings for the disbelievers.4 3 https://www.whyislam.org/submission/the-holy-quran/what-is-the-quran/ 4 https://www.alislam.org/question/what-is-holy-quran-contain/

TALAQ-E-BIDDAT

Triple Talaq is known as talaq-e-bidat. It is a kind of talaq in which three announcements made by the husband during a single tuhr either in one sentence i.e; I divorce you thrice, or in separate i.e; I divorce you, I divorce you, I divorce you. This is a disapproved from of

divorce. According to the viewpoint of Ibn al-Qayyim, triple talaq that is enunciated simultaneously is considered as one divorce. He backed his argument by saying that Hazrat Muhammad ‫ صلى ال عليه وسلم‬treated it as a single divorce. In the Holy Quran , the husband is allowed to divorce two times. He can live with his wife after two announcements of divorce. The third divorce holds the right of spouses to reside with each other, and after it, the divorce becomes absolute and irreversible. The last prophet, Hazrat Muhammad ‫صسسلى ال عليسسه وسسسلم‬ condemned and abrogated the exercise of Talaq e bidat. The second caliph Hazrat Umar (RA) had penalized those husbands who use this kind of divorce. The application of this instant divorce is extensive. The Sunni sect of muslims accept this practice, and it is legal according to Sunni school. Such a Talaq is lawful, although is sinful, in Hanafi Law ; but in Shia school of Islamic jurisprudence, it is not permissible. According to

Tyabji, by a deplorable

development of the Hanafi law, the sinful forms have become the most common for “men have always molded the law of marriage so as to be most agreeable to themselves”. So, Triple Talaq is repugnant to Islamic injunctions, it infringes the rights of muslim women. Reasonable cause is a significant element of divorce. In the case, Saleem Basha vs. Mumtaz Begum , it was decided that a husband cannot use the arbitrary power to use his right to divorce. There must be a sensible root cause and families of parties must try an attempt to resolve their dispute and reconcile them. This decision also upheld in Ahmed Kasim Molla vs. Khatun Bibi. 5

SUPREME COURT VERDICTS

The apex court of India gave the verdict on the issue of triple talaq which highlights the accurate interpretation of Sharia law on equality, rule of law, and the human rights 5 Fatima Tariq Kinnaird College for Women

promulgated in the supreme law of the state; the constitution. Last year, Indian Supreme Court, passed a landmark judgment in case, SHAYARA BANO V. UNION OF INDIA & OTHERS. 2017 . The Supreme Court of India set aside the practice of talaq-e-bidat, which allowed certain Muslim men to divorce their wives instantaneously and irrevocably, on the basis that it violated the Constitution of India. The case itself does not primarily focus on gender justice but has strong positive implications on advancing women’s rights and gender equality in India. In Pakistan, the courts are trying their best to control all forms of divorce by meticulously enforcing the provisions of the Muslim Family Law Ordinance 1961 which sets an obligatory procedure to be followed for the purpose of divorce. The Supreme Court of Pakistan had ruled in Syed Ali Nawaz Gardezi v. Muhammad Yusuf that intimation of talaq to the Chairman of Union council is necessary, if husband unable to do so, it would amount to official cancellation of a talaq This decision is upheld in Mohammad Salahuddin v. Muhammad Nazir Siddique,1984 . However, in Mst. Kaneez Fatima v. Wali Mohammad , the Supreme Court had ruled “failure to notice of Talaq to the Chairman of the Union Council does not by itself lead to the conclusion that talaq has been revoked. It may only be ineffective but not revoked”. So, one fails to understand the real differences between ‘revocation of talaq’ in the Gardezi case and ‘talaq being ineffective’ in Kaneez Fatima. As far as we observe the factual effect of both cases, there is no difference. ‘Revocation of talaq’ means that the husband has exhausted one talaq and is now left with two declarations to exercise in the future.6

THREE CONSECUTIVE PRONOUNCEMENTS OF TALAQ(CRITICAL ANALYSIS) 6 https://www.theosthinktank.co.uk/in-the-news/2019/02/25/sharia-law-what-it-is-what-it-isnt-and-why-youshould-know

In my opinion, once a Hanafi husband has pronounced three talaqs at a time with the intention of divorcing his wife thrice, then talaq will be effective morally (in a sense, what we observe in our Pakistani culture). However, if the husband pronounced three repudiations in one sitting displaying no intention to declare three talaqs, than it will be considered one pronouncement. As we study the muslim personal law of Sri Lanka, we came to know that there is no concept of triple talaq at once, and the law does not acknowledge it. The law of Sri Lanka demands a husband who wants to divorce his wife, to let the Qazi know about his intent. Qazi is an islamic judge, whose duty is to set out reunion among both spouses within a month. If there is no reconciliation, then it is a prerequisite of divorce that qazi and two witnesses must present. If we go through the Sharia law, applicable in Egypt, we witness that there is no effect of talaq made by three or more consecutive announcements, it is considered as a single mutable divorce. In addition to it, according to family law of Sarawak, Malaysia, it is necessary for a husband to seek the court to make the divorce effective. The court must advise the couple to reconcile. So most of the muslim states consider three consecutive announcements of Talaq amounts to one talaq. Also, it is compulsory to wait after each declaration.7

FINAL ANALYSIS According to me, the Shariah law relating to divorce is the most misunderstood and misused aspect of that law. Having brought up in a society casting misconceptions about different 7 Fatima Tariq Kinnaird College for Women

islamic injunctions like marriage, talaq etc. Since, childhood, I thought that once a man utter three words of talaq to his wife, divorce come in effect. I am not the only one who kept in the dark and was kept away from the real story of the talaq and rights of women in Islam. In Pakistan, triple talaq is still a major practice. It is one the major cause of increasing divorce rate in our country. It is a stereotype that divorce is a one-sided engine of oppression in hands of the husband. What I conclude while doing research of this paper, is that Talaq is not meant to discriminate on basis of gender, it is not partial and support males. The divorce rules in the Quran and Hadith, pre-eminently just and remarkably women friendly, have unfortunately misinterpreted by men in a bid to keep an upper hand in this matter. While writing this assignment and going through the true law, I deduce that it is just a myth that Islam gives men an unfettered power to unilaterally inflict a talaq on their wives, or that it discriminates against women in this regard. I think that dissolution of marriage is basically for the protection of women, and it prevails the rights of women. If a man doesn't use his right to divorce, he can marry with three other women, but women cannot do. So, my point of view is that the basic purpose of divorce in islam is to facilitate women. It is not a discriminatory law on basis of gender, it provides equal even surplus privileges to muslim women. Pakistan is an Islamic Republic country. Unfortunately, divorce rates are rising day by day in the country. According to the research statistics, in 2018, more than 20,000 divorce suits are filed in family courts of Lahore. It is an alarming situation. Government should take steps to aware public about realities relevant to marriage and divorce to minimize the increasing divorce rate in Pakistan and promote harmony in society. People should change their minds and stop following these innovations (bidda...