TRIPLE TALAQ & THE CONSTITUTION OF INDIA

TRIPLE TALAQ & THE CONSTITUTION OF INDIA

Article 25 (1) of the Constitution of India guarantees that: Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. The fundamental right to profess, practise and propagate religion, is thus, not absolute, but subject to public order, morality and health and to the other provisions.

Article 13 (1) of the Constitution of India provides that: All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. Article 13 (4) stipulates that: Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality.

Thus, the provisions of the Muslim Personal Law (Shariat) Application Act of 1937, the Cutchi Memons Act, 1920 and the Mahomedan Inheritance Act (II of 1897), in so far as they are inconsistent with the provisions of the Constitution, stand void to the extent of such inconsistency. According to these laws, marriage under Muslim laws is a contract between husband and wife. Under the Indian Constitution, all contracts must be equitable to be valid. Thus, the contract under Muslim marriage Law must be equitable to be valid. In the Muslim law, the men can use triple talaq and women can use khula for divorce. But are these provisions equitable?

Article 14 of the Constitution of India provides that: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. But under the Muslim law, women are not considered equal to men. Thus, to that extent, the Muslim law is void under Article 13 (1) of the Constitution.

AIMPLB is a NON-GOVERNMENT ORGANIZATION constituted in 1973 to adopt suitable strategies for the protection and continued applicability of Muslim Personal Law in India, most importantly, the Muslim Personal Law (Shariat) Application Act of 1937, providing for the application of the Islamic Law Code of Shariat to Muslims in India in personal affairs. Some Muslims followed Hindu customs before 1937. The Act applies to all matters of personal law except such successions. Even this section had the right under laws such as the Cutchi Memons Act, 1920 and the Mahomedan Inheritance Act (II of 1897) to opt for "Mahomedan Law".

The Web site of the AIMPLB, in their history section says: “Islam provides comprehensive guidance to its followers in every sphere of life, belief, prayers, social behaviour, civil conduct, personal and social relationship, family affairs and personal life. Islam has given a code to the Muslims in all these matters. It is for the reason that the source of those laws which embrace the personal and family lives of the Muslims (commonly known as Personal Law) is neither the practice (Urf) and conventions, nor customs, compromises, human decisions, the experiences and advice of philosophers, intellectuals and moral preachers. In fact the fountainhead of the social order and Personal Law of Muslims is the Book (Quran) revealed by Allah and the Sunnah (of the Prophet) which explains and elucidates it and on the veracity and trustworthiness of which every Muslim has an unshakable faith. Thus, these laws of Muslims are an integral and inseparable part of their religion which are based on the guidance given by the Prophet under divine inspiration. Therefore the issue of their Personal Law is not merely a cultural issue or an issue of customary practices for the Muslims rather it is an issue which concerns the safeguarding and conservation of their religion which burdens them with grave responsibilities and they are, as a result, very sensitive about it”.  

If “the issue of their Personal Law is not merely a cultural issue or an issue of customary practices for the Muslims rather it is an issue which concerns the safeguarding and conservation of their religion”, then it should be applicable to all Muslims equally. The fact that 22 Islamic nations have banned triple talaq shows that they consider it inconsistent with Islamic practice and law. If AIMPLB wants to take a different stand, they must show in which respect their Islam is different from the Islam of 22 countries, who have embraced Islam as the State Religion. Even if they show the difference, since it will be different from that followed in the cradle of Islam, it has to stand the test of Article 13 and 25, under which reasonable restrictions can be imposed by the State.

Further, their Personal Law should also include succession of property right and criminal jurisprudence, as these are integral to their sphere of life. But the AIMPLB clearly leaves these out. By this act, they are: a) either disobeying the dictates of Allah and the Prophet, or b) there is no provision under the Book (Quran) revealed by Allah and the Sunnah (of the Prophet). In the former case, Quranic succession and criminal jurisprudence (like cutting off the hands of thieves etc.) should be made applicable to Muslims. If a Muslim is found guilty of theft, his/her hand should be cut off, while others would go to jail. In the latter case, Muslims should be governed by the common succession and inheritance law, like they are now subject to the common criminal law. The common inheritance law makes the ladies not only a share holder of their paternal property, but also, their in-laws property. Hence, Muslim ladies should get a share in their in-laws property, even after divorce under triple talaq.

If necessary, Government could amend the Constitution under Article 368.

BIBLIOGRAPHY:
Article 13 in The Constitution Of India
13. Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void
(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas
(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality.

Article 14 in The Constitution Of India
14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 25 in The Constitution Of India
25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

Article 368 in The Constitution Of India.
368. Power of Parliament to amend the Constitution and procedure therefor
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in
(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent
(3) Nothing in Article 13 shall apply to any amendment made under this article.

Courtesy: Basudeba Mishra
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