Triple Talaq

To talk about the much debated issue on triple talaq, which has
been recently declared as unconstitutional and thus has been set
aside by the Supreme Court of India in Shayara Bano and Ors V
The Union of India and Ors1, we must first understand that what
exactly is triple talaq.

What is Triple Talaq ?

Talaq id the divorce in the instance of the Husband. There are three
kinds of Talaq : 2

1) Talaq- e- Ahsan3
2) Talaq –e-Hasan4
3) Talaq-e-Biddat

.Talaq-e-Biddat is the kind of divorce that is effective by one

definitive pronouncement of talaq or three simultaneous
pronouncements like talaq, talaq, talaq. This type of divorce is
effective forthwith and is irrevocable in nature. This type of talaq
is known as Triple Talaq.

1
(2017) 9 SCC 1
2
(2017) 9 SCC 1, Para 117-121
3
Talaq – e – Ahsan is the kind of divorce whereby the husband pronounces
talaq once and after that the couple has to maintain a period abstinence, also
known as the iddat period. The period of iddat is ninety days or three menstrual
cycles. If the couple resumes intimacy within the period of iddat, the
pronouncement of divorce is treated to be revoked. Therefore this kind of
divorce is revocable in nature
4
Talaq –e- Hasan is the kind of divorce whereby the husband pronounces talaq
thrice, each at the end of a month. If the couple resumes cohabitation after the
first pronouncement of talaq and before the second pronouncement of the same,
or after the second pronouncement and before the third pronouncement then the
pronouncement stands revoked. However it is pertinent to note that the husband
can revoke his pronouncement of divorce anytime before the third and final
pronounce, but once the third pronouncement is done, the divorce stands
irrevocable
.

Article 25 and Triple Talaq

Due to the Constitutional Scheme of our country, every religion or

every part of the society has the right to practice and profess their
religion, although many articles of the Constitution of India
silently indicates about the same but most of the credit goes for
Article 25 of the Constitution of India 5

One of the reason why Triple Talaq existed so many days in our
country was the above mentioned article, the other reasons are
many from blind religious faiths to vote banks etc, theses issue
would be better dealt by some sociologist. Article 25, permits
anyone to profess, practice and propagate religion and the practice
of triple talaq was initially covered under that. But the Supreme
Court of India via it’s Judgments 6
held that only essential
practices of a religion is protected by Article 25 and it has been
carefully examined in the Triple Talaq Case 7, that the practice of
triple talaq does not form the essential practice of the religion of

5
25. (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 (2), the 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.
6
(2003) 8 SCC 368 ; (2004) 12 SCC 770 ; 1954 AIR 1005 ; AIR 1952 SC 282
7
(2017) 9 SCC 1, Para 53-55
Islam. The practice of Triple Talaq is only recognized by the
Hanifi Jurisprudence and hanifi Jurisprudence itself considers
Triple talaq as sinful.

Article 14 and Triple talaq

Time and again Muslim Personal Laws specially relating to

women has been found contradictory to Article 14 of the Indian
Constitution.8

One of the primary reasons Muslim Jurisprudence has been found

to be in contradiction to Article 14 is that some of the Muslim
Laws are unjust and unfair to women and it has not only been seen
in the triple talaq scenario, but also in the case of Shan Bano 9, in
that case the Supreme Court itself held that although the personal
laws were different for different sections or religions, but criminal
code is the same for all and hence Muslim women are entitled to
maintenance under section 125 of the Code of Criminal Procedure,
and also the court regretted the fact that in spite of so many years
after independence there so no endeavor from the part of the
government to achieve the goal of Uniform Civil Code in
furtherance of Article 44 of the Indian Constitution10. But, then
also the Judgement was reversed by an act passed by the
parliament11 which tried to strike a balance, but still it favored the
Muslim Jurisprudence. Later on the Constitutional Validity of the

8
14. The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.
9
1985 SCR (3) 844
10
44. The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India.
11
The Muslim Women (Protection of Rights on Divorce) Act 1986
 12
Act was challenged in Danial Latifi & Anr v. Union Of India ,
whereby the Hon’ble Judges came up with 2 interpretations that
the Act was prima facie violative of Article 14 and the second was
that that parliament does not intend to make unconstitutional laws,
they decided to go with second interpretation. So, the issue of
maintenance of muslim women is still guided by that somewhat
better than previous law.

Now in case of Triple Talaq, the same principle can be applied,

personal law can be different but it should not be in contravention
of the Supreme Law of The Land i.e the Constitution of India. The
practice of Triple Talaq surely degrades the position of women in
the eyes of law, when compared to women of other religion and
thereby it offends Article 14.

Problems of Triple Talaq

Muslim Women are the citizens of India first, then they belong to
some religion, but while they might be guided by their own
religious law, that law must not offend the Constitution of India
and other common Codes like the Criminal Procedure Code etc.
Muslim Women being the citizen of India enjoys some
fundamental rights, which cannot be taken away from them at any
cost and certainly not in the plea and pretext of their personal laws.
The practice of triple talaq, clearly discriminated them in the eyes
of law and also bereft them of their fundamental rights which are
guaranteed to them by the Constitution of India. The practice of
divorce is found in every religious laws, but the procedure has
always been in consonance with the constitutional scheme, but the
practice of triple talaq is simply whimsical as also stated the Apex
court in the Triple Talaq case and is also sinful in the same

12
Writ Petition (civil) 868 of 1986
jurisprudence that recognizes it. Triple talaq also left Muslim
Women in a state of sheer bewilderment, they had no say
whatsoever after their husband had pronounced talaq 3 times.
Cases were being heard where some husband even divorce his wife
13
by this draconian method using the digital media via whatsapp
and also in situations where the wife was pregnant 14, these sort of
divorce at the whims and caprices of husbands left Muslim Women
at great disadvantages. Had the Supreme Court of India not
adjudicated on the matter and held triple talaq void then that day
would have been not far when a Muslim Husband would divorce
his wife by triple talaq for not being able to look good that day, or
even for not adding an extra spoon of sugar in his cup of tea.

Supreme Court of India on Triple Talaq

After long considerations and after a lot of complaints of Muslim

Women a 5 judge bench of the Apex Court finally stepped in and
declared the practice of Triple Talaq as unconstitutional and illegal
by a majority of 3:2 in Shayara Bano and Ors V The Union of
India and Ors15. And granted the legislature 6 months time to
formulate a new law in this regard .

Triple Talaq Bill16

The legislature in compliance if the order of the Apex court has

introduced the THE MUSLIM WOMEN (PROTECTION OF
RIGHTS ON MARRIAGE) BILL, 2017 or the Triple Talaq bill,

13
http://www.timesnownews.com/india/article/triple-talaq-amu-aligarh-muslim-
university-professor-whatsapp-text-message/123830
14
http://www.timesnownews.com/india/article/top-triple-talaq-cases-that-shook-
the-nation/75965
15
(2017) 9 SCC 1
16
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017
Section 317 of the bill makes the divorce by pronouncing talaq 3
times by any media or words spoken or gesture made void and
Section 418 is the penal section of the act which provides
punishment for pronouncement of triple talaq for divorcing a wife,
this bill was passed by the Lok Sabha on December 28, 2017 and is
yet to be passed on the Rajya Sabha as of now.

This bill, if passed can be a great relief for the Muslim Women in
India and can make them stand in the eyes of law in same footing
as women’s of other religion and considering the ever changing
scenario of India, this Judgment on Triple Talaq and this Bill was
the need of the hour. And it can well be inferred that if this Bill is
passed it can be the founding stone towards formulation of the
Uniform Civil Code in furtherance of Article 44 of the Indian
Constitution.

CODE – SB241

17
Section 3. Any pronouncement of talaq by a person upon his wife, by words,
either spoken or written or in electronic form or in any other manner
whatsoever, shall be void and illegal.
18
Section 4. Whoever pronounces talaq referred to in section 3 upon his wife
shall be punished with imprisonment for a term which may extend to three years
and fine