Instant triple talaq struck down: Why a legislation won't be necessary
Chief Justice of India, J S Khehar who delivered the minority verdict in the triple talaq case spoke about a legislation which the government had to come up in six months. While both the government and the BJP called the verdict in which triple talaq was stuck down as historic, they were guarded on the legislation part of it.
Top government sources say that the verdict is being studied. There is some confusion regarding the verdict as the court has struck down only one form of talaq. Instant triple talaq or talaq-e-biddat has been struck down, but regarding the other forms there is a vacuum.
If a legislation to overcome personal laws have to come up, then it would deal with other aspects such as the other forms of talaq as well as domestic violence, dowry etc, the official said.
A legislation is likely to take more than six months to come out since it would have to begin with defining talaq. In the BJP circles the legislation has not yet been discussed as yet. However some feel that if a legislation were to brought about, then this would be the best time since the government would get the support of a majority of people.
Sources say that unless there is clarity on the matter, it would not be wise to rush into a legislation. The BJP's national spokesperson Shahnawaz Hussain said, "there is no need for a legislation on talaq-e-biddat as the practise has been declared illegal by the Supreme Court.
One would also need to revisit the arguments advanced by then Attorney General of India, Mukul Rohatgi before the Constitution Bench of the Supreme Court.
He had argued that two other modes of talaq, talaq-e-ahsan and talaq-e-hasan, were also "liable to be declared as unconstitutional", for the same reasons referred to for talaq-e-biddat.
Talaq-e-ahsan refers to a single pronouncement of divorce during a tuhr (period between the menstrual cycle) followed by abstinence from intercourse for the period of waiting. Talaq-e-hasan relates to three pronouncements made during successive tuhrs, with no intercourse taking place during this period. He had said that both forms are arbitrary and unreasonable. Chief Justice Khehar in his judgment said that , "It was contended that the challenge to talaq-e-ahsan and talaq-e-hasan would follow immediately after this Court had rendered its pronouncement" with reference to talaq-e-biddat.
Another passage from the judgment which is confusing for the government are the observations made by Justices R F Nariman and U U Lalit who delivered the majority verdict along with Justice Kurian Joseph. Justices Nariman and Lalit said that there is no need to ask Parliament to legislate on triple talaq as it is not an integral part of religion and is just a practise which itself is considered to be something innovative. Such a practice, the judges held, must pass the musters of Article 13, whereby all laws in derogation to the fundamental right are to be declared bad.
What is instant triple talaq or talaq-e-biddat
Instant triple talaq or talaq-e-biddat is different comparred to talaq-ul-sunnat which is the ideal form of a dissolution of Muslim marriages. Under talaq-ul-sunnat once the husband pronounces talaq, the wife has to observe a three month iddat period covering three menstrual cycles. During this period the husband can arbitrate and re-conciliate with the wife.
In case of cohabitation between the husband and wife during the three months, the talaq is revoked. However, when the period of iddat expires and the husband does not revoke the talaq either expressly or by consummation, the talaq is irrevocacble and final.
In instant triple talaq or talaq-e-biddat a man pronounces talaq thrice during a sitting, on phone or write in a talaqnama or text message. Here the divorce is considered to be immediate and irrevocable even if the husband wants to later on re-conciliate.
Under this the only way for the couple to get back together is through a nikah halala. Under this process the woman has to get remarried, consummate the second marriage, get divorced, observe the three-month iddat period and return to her husband.