TRIPLE TALAQ

A research prepared submitted in partial fulfilment of the course

Family law – I for obtaining the degree BBA LLB (Hons.) doing the
academic year 2019-2020.

Submitted by
RAHUL KUMAR
2032
Submitted to
Ms. Pooja Shrivastava
Assistant Professor

August 2019
Chanakya National Law University, Patna
Mithapur Nayaynagar, Patna
Table of Contents
INTRODUCTION ...................................................................................................................................... 1
OBJECTIVE OF THE STUDY ................................................................................................................... 2
HYPOTHESIS ....................................................................................................................................... 2
RESEARCH METHODOLOGY ............................................................................................................... 3
SOURCE OF DATA ............................................................................................................................... 3
LIMITATIONS OF STUDY ..................................................................................................................... 4
SCOPE OF STUDY ................................................................................................................................ 4
HISTORICAL BACKGROUND .................................................................................................................... 4
DIVORCE TALAQ .................................................................................................................................. 5
TALAQ-UL-SUNNAT ............................................................................................................................ 5
TALAQ HASAN PROPER ...................................................................................................................... 6
TALAQ-UL-BIDDAT ............................................................................................................................. 7
THE PRACTICE OF TRIPLE TALAQ............................................................................................................ 7
TRIPLE TALAQ ..................................................................................................................................... 7
NATURE OF TRIPLE TALAQ ............................................................................................................... 10
THE IMPACT OF CHANGE IN SOCIETY UPON THE PRACTICE OF TRIPLE TALAQ............................... 11
JUDICIAL APPROACH ............................................................................................................................ 15

CONSTITUTIONAL VALIDITY ................................................................................................................. 18

SOLUTION ............................................................................................................................................. 22

CONCLUSION AND SUGGESTION ......................................................................................................... 23

BIBLIOGRAPHY...................................................................................................................................... 25

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 DECLARATION

I hereby declare that the project entitled “TRIPLE TALAQ” submitted by me at

CHANAKYA NATIONAL LAW UNIVERSITY is a record of bona fide project
work carried out by me under the guidance of our mentor Ms. Pooja Srivastava.
I further declare that the work reported in this project has not been submitted
and will not be submitted, either in part or in full, for the award of any other
degree or diploma in this university or in any other university.
----------------
RAHUL KUMAR
ROLL NO. 2032
3RD SEMESTER
2ND YEAR

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 ACKNOWLEDGEMENT

It is a fact that any research work prepared, compiled or formulated in isolation

is inexplicable to an extent. This research work, although prepared by me, is a
culmination of efforts of a lot of people who remained in veil, who gave their
intense support and helped me in the completion of this project.

Firstly, I am very grateful to my mentor Ms. POOJA SRIVASTAVA, without

the kind support and help of whom the completion of this project was a
herculean task for me. She donated her valuable time from her busy schedule to
help me to complete this project. I would like to thank her for her valuable
suggestions towards the making of this project.

I am highly indebted to my parents and friends for their kind co-operation and
encouragement which helped me in completion of this project. I am also
thankful to the library staff of my college which assisted me in acquiring the
sources necessary for the compilation of my project.

Last but not the least, I would like to thank the Almighty who kept me mentally
strong and in good health to concentrate on my project and to complete it in
time.

I thank all of them !

RAHUL KUMAR
ROLL NO. 2032
3RD SEMESTER
2ND YEAR

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 INTRODUCTION

Talaq types can be classified into talaq al-sunnah, which is thought to be in accordance with
Muhammad's teachings, and talaq al-bid'ah, which are viewed as an innovation deviations
from it.
Triple talaq, also known as instant divorce, is a form of Islamic divorce which has been used
by Muslims in India, especially adherents of Hanafi Sunni Islamic schools of
jurisprudence. It allows any Muslim man to legally divorce his wife by uttering the
word talaq three times in oral, written or, even, in electronic form.
The use and status of triple talaq in India has been a subject of controversy and debate. Those
questioning the practice have raised issues of justice, gender equality, human rights and
secularism. The debate has involved the Government of India and the Supreme Court of
India, and is connected to the debate about a uniform civil code (Article 44) in India.
The entire debate around the Triple Talaq Bill, based on the petition filed by Sharaya Bano
and several other petitions as also the suo moto PIL by the Supreme Court, needs to be
viewed under the scanner of intersectionality. Under this PIL the apex court has hinted that
certain Islamic Personal Laws practice gender discrimination, thus violating the rights of
women as enshrined in the Indian Constitution. From the outside, the entire Triple Talaq
issue has translated into a debate of culture versus modernity. To limit the experiences within
reductive binaries is absurd as the Muslim woman is very much a product of the very power
relations that subordinates her. The author deals with the question of Triple Talaq in the light
of the recent petition filed in the Supreme Court for declaring such talaq invalid. It takes into
consideration the fall-out of such a bill, if it were to come to pass, the existing laws which
negate the necessity of a new law and the opinions of legal experts and progressive Islamic
scholars on the same.
In 2017, the Supreme Court of India comprising of a five judge constitution bench in Shayara
Bano case passed a landmark judgment in the history of triple talaq by banning the Muslim
practice of Triple Talaq in India by declaring it as an unconstitutional and struck it down by
3:2 majority. Shayara Bano (wife) challenged the ‘talaq nama’ delivered to her by husband
pronounced talaq, talaq, talaq in presence of two witnesses. She challenged the same before
the apex court to declare the divorce as “void ab initio” relying upon the claim which violates
her fundamental rights.
The apex court set aside instant talaq as a "manifestly arbitrary" practice. It also said, "Given
the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at
reconciliation between the husband and wife by two arbiters from their families, which is
essential to save the marital tie, cannot ever take place."

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  OBJECTIVE OF THE STUDY
This paper is prepared to empathise the constitutionality of the practice of triple taqak.
Through the research, the author has intended to study the following about the given subject:
1. The history and basis of triple talaq
2. How time and society has made the practice of triple talaq obsolete.
3. The unconstitutionality of the practice of triple talaq.
4. the cases and interpretation of the arguments given.

 HYPOTHESIS
Researcher hypotheses’ that
o The triple talaq is unconstitutional and opposed to public welfare.

o The landmark judgement given my Supreme Court is right and will provide
support to muslim female.

 RESEARCH MTHODOLOGY

A Research Methodology defines the purpose of the research, how it proceeds, how to
measure progress and what constitute success with respect to the objectives determined
for carrying out the research study.

The research design is given as below –

Exploratory Research: This kind of research has the primary objective of development
of insights into the problem. It studies the main area where the problem lies.
The project involves doctrinal and non-doctrinal forms of sources. As far as the
doctrinal sources are concerned, they primarily include the web, books and newspaper
articles.

The research methodology for the present study has been adapted to reflect these
realties and helps reach the logical conclusion in an objective and scientific manner.

 SOURCE OF THE DATA

1) Primary data –
Data which is collected through direct interviews and by raising questionnaires in this
case to a few car dealers.

2) Secondary data –

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 Secondary data that is already available and published. Various internet sites,
newspaper, magazines were searched in order to find information useful for completion
of this project.

 LIMITATIONS OF THE STUDY

The researcher being a student doesn’t have the source or access to resources beyond his
capacity. He however, has collected the data from book, internet sites, newspaper, magazines
and interviews. Some of the limitations researcher has faced or is bound to face are:
1. Money : one of the most influential limitation for researcher, for researcher is a student.
2. Time period: the allocated period of time is not sufficient to collect and analyse the data
for more accurate judgement of the subject.
3. Research Area: the provided place for conducting the data collection is very small and
the scope for collection of information is narrow.

 SCOPE OF STUDY
For the requirement of degree of B.A.LLB(Hons.) of academic session 2018-2023

TENTATIVE CHAPERIZATION

1. HISTORICAL BACKGROUND
To understand the nature and concept of divorce in Islamic law, a brief account of its historical
background is necessary. Among all the nations of antiquity, the power of divorce was regarded
as a natural corollary to marital obligation. Among the pre-Islamic Arab the power of divorce
possessed by the husband was unlimited and was frequently exercised without any regard to
the marital obligations1. They could divorce their wives at any time, for any reason or even
without any reason. They could give divorce and also revoke the same as many times as they
preferred. They could, moreover, if they were so inclined, swear that they would have no
intercourse with their wives, though still living with them. They could arbitrarily accuse their
wives of adultery, dismiss them, and leave them with such notoriety as would deter other
suitors; while they themselves would go exempt from any formal responsibility of
maintenance.

1
Furqan Ahmed, Triple Talaq: An Analytical Study with Emphasis on Socio-Legal Aspect 13 (Regency
Publication, New Delhi, 1994).

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In pre-Islamic Arabia, divorce was used as an instrument of torture. These social and moral
ills and injustices engaged the attention of the prophet of Islam. Fully conscious of the evils
flowing from divorce, he framed the laws of marriage and divorce in order to remove these
evils.

Divorce Talaq

The Prophet, who is head of the community, affirmed that all the things that have been
permitted under the law, the worst are divorce. He treats it as an evil and suggests everyone to
avoid it as far as possible. But in some situations, it becomes a necessity where living together
is not possible. It is better to separate from the spouse rather than to be in a surrounding full of
agony and abhorrence. But the basis of divorce in Islam is the inability of the spouse to live
together for a genuine reason due to living together is impossible. There are provisions
guaranteed under the Islamic law to get divorce from both the side of husband and wife. The
term ‘talaq’ means repudiation or simply divorce. But in Islam, the husband only has the right
to get divorce through the method of talaq and the wife by the judicial orders from the court.

Talaq-ul-Sunnat (Revocable Talaq)

Talaq-ul-Sunnat is regarded to be the approved form of Talaq. It is called as Talaq- ul-Sunnat
because it is based on the Prophet’s tradition (Sunna). As a matter of fact, the Prophet always
considered Talaq as an evil. If at all this evil was to take place, the best formula was one in
which there was possibility of revoking the effects of this evil. With this idea in mind, the
Prophet recommended only revocable Talaq, because in this form, the evil consequences of
Talaq do not become final at once. There is possibility of compromise and reconciliation
between husband and wife. Talaq-ul-Sunnat is also called as Talaq-ul-raje. Only this kind of
Talaq was in practice during the life of the Prophet. This mode of Talaq is recognised both by
Sunnis as well as by the Shias. Talaq-ul-Sunnat may be pronounced either in Ahsan or in the
Hasan form . Talaq Ahsan Most Proper This is the most proper form of repudiation of marriage.
The reason is twofold: First, there is possibility of revoking the pronouncement before expiry
of the Iddat period2. Secondly, the evil words of Talaq are to be uttered only once. Being an
evil, it is preferred that these words are not repeated. In the Ahsan Talaq there is a single

2
https://wwjmrd.com/upload/triple-talaq-unconstitutional-and-arbitrary_1517053898.pdf

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declaration during the period of purity followed by no revocation by husband for three
successive period of purity. In this form, the following formalities are required:

a) The husband has to make a single pronouncement of Talaq during the Tuhr of the wife.
Tuhr is the period of wife’s parity i.e. a period between two menstruations. As such, the period
of Tuhr is the period during which cohabitation is possible. But if a woman is not subjected to
menstruation, either because of old age or due to pregnancy, a Talaq against her may be
pronounced any time.

b) After this single pronouncement, the wife is to observe an Iddat of three monthly courses.
If she is pregnant at the time of pronouncement the Iddat is, till the delivery of the child. During
the period of Iddat there should be no revocation of Talaq by the husband. Revocation may be
express or implied. Cohabitation with the wife is an implied revocation of Talaq. If the
cohabitation takes place even once during this period, the Talaq is revoked and it is presumed
that the husband has reconciled with the wife. When the period of Iddat expires and the husband
does not revoke the Talaq either expressly or through consummation, the Talaq becomes
Irrevocable and final. It may be noted that the characteristic feature of the Ahsan form of Talaq
is a single pronouncement followed by no revocation during the period of three month’s Iddat.
Therefore, where a husband makes any declaration in anger, but realising his mistake
afterwards, wants to cancel it, there is sufficient time for him to do so. Single pronouncement
of the civil words of Talaq and sufficient opportunity to the spouses for reconciliation, are the
two reasons for calling this form as the ‘most proper’ form of Talaq .

Talaq Hasan Proper

This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there
is a provision for revocation. But it is not the best mode because evil words of Talaq are to be
pronounced three times in the successive Tuhrs. The formalities required under this form are
as under3

(a) The husband has to make a single declaration of Talaq in a period of ‘Tuhr.

(b) In the next Tuhr, there is another single pronouncement for the second time. It is significant
to note that the first and second pronouncements may be revoked by the husband. If he does

3
https://wwjmrd.com/upload/triple-talaq-unconstitutional-and-arbitrary_1517053898.pdf

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so, either expressly or by resuming conjugal relations, the words of Talaq become ineffective
as if no Talaq was made at all.

(c) But, if no revocation is made after the first or second declaration then lastly the husband is
to make the third pronouncement in the third period of purity (Tuhr). As soon as this third
declaration is made, the Talaq becomes irrevocable and the marriage dissolves and the wife
has to observe the required Iddat. It may be noted that the important feature of Talaq Hasan is
its revocability before the third pronouncement and its irrevocability after the third. In order to
make an effective Talaq, the words must be uttered three times in three consecutive period of
purity.

2. THE PRACTICE OF TRIPLE TALAQ

Triple Talaq was neither recognized nor sanctioned by Quran and The Holy Prophet. It was not
in practice during the span of first caliph but the second caliph brought this concept of instant
divorce. It came into existence to meet some emergency situation and was not made a law
permanently. Unfortunately, the hanafis jurists on the strength of this administrative order of
second caliph declared this form of divorce as valid . Triple-Talaq is also known as Talaq-Ul-
Biddat which gives a right to a man that whenever he thinks fit, he may give divorce to his wife
anytime and which becomes void and irrevocable. This not only violates Muslim women rights
but this also makes them inferior in the eyes of society as well as in the eyes of men. Since
what does triple-Talaq conclude that it is on the whims of men due to which most of them think
that they are superior to Muslim women. It is true that every religious practice is sacred, and
no one has right to interfere in these religious practices. It is being said by some of the Muslims
that triple talaq comes under the ambit of religion but on the other hand some of the Muslims
contradict the same. Now a days this practice is being misused by many Muslim mans which
severely affects their wives life and we don’t agree that religion can take away the basic human
rights and natural rights of any human being which this practice does and the most barbaric
thing about this type of divorce is that it will be completed even in the absence of wife and
even if the wife does not have any knowledge of such divorce. And it will become void and
irrevocable. In addition to this, the most interesting fact about this is that it is being used by
men but consequences are faced by women. According to the Hanafis when Talaq-ul- Biddat
is pronounced, the wife will become alienated from the husband and he cannot remarry her.
She becomes ‘Haram’ (totally prohibited) for him. Neither can he take her back nor can he go

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for fresh nikah with her. He can go for nikah with her only after paying a penalty of ‘Halala’
meaningly, she has to marry another man and her marriage must consummate and then that
person divorces her on account of marital conflict or she becomes a widow. Muslims are India's
largest minority community with a population of 155 million and their marriages and divorces
are governed by the Muslim personal law, ostensibly based on the Sharia. The invidious
procedure of triple Talaq is confined to the Sunnis alone, not only in India, but around the
world. And the most of the population of Indian Muslims is Sunnis. Concerns Regarding the
Triple Talaq Most of the Muslim men treat their wives as mere possession, they think that they
can marry them anytime as well as get rid of them by just uttering talaq thrice. But it is to be
noted that women are being deserted by their husband who give them instant talaq without any
justification and reasonable cause. It is somewhat clear that it is a patriarchal society as the
divorce is possible by any medium like telephone, telegram, letter, text message, social media
etc.

In the case Rashid Ahmed v. Anisa Khatoon , man declared the triple talaq in the presence of
his witness though in the absence of his wife. The talaqnama was executed and the decree for
divorce was allowed. This concept of triple talaq has made the husband very dominant and
wife very fragile. It was rightly stated by Justice Krishna Iyer that “It is a fallacy that Muslim
men enjoys under Muslim-Quranic law.”

a) Furqan Ahmad, “Triple talaq: An Analytical Study with Emphasis on Socio-Legal Aspects”,
Regency Publications, 1994

The book authored by Furqan Ahmad takes the reader through the background of dissolution
of marriage under Islamic law including the background of triple talaq and how this mode of
divorce came into practice. The author further discusses the various modes of dissolution of
marriage and critically appraises each mode of divorce as mentioned under the Shariat law.
While discussing the subject of triple talaq the author has considered the baneful effects of such
mode of divorce on the society especially the divorced woman. The author emphasizes on the
socio-legal aspects of the much debated mode of dissolution of marriage i.e. triple talaq.

In general parlance, the word “talaq” means repudiation or severance of marriage. It is an

Arabic word which means- I divorce you. In the case of Moonshee Buzloor Rahim v.
Laleefutoon Nisa4, the court observed that only Muslim men have the option to exercise the

4
(1861) 8 MIA 397

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act of talaq, at any time without giving any plausible cause or explanation. He has the arbitrary
power to use the tool of divorce as against the wife. Under Islamic law, a wife is divorced if
the husband pronounce the word talaq three times.

The two different sects of the Muslim community i.e. Shias and Sunnis have different rules and
procedure to engage in talaq. However, talaq has the following three steps which are common
to both the sects. They are:-

1) Initiation- the process of divorce is initiated with the husband pronouncing the word “talaq”.
A talaq may be affected either orally or by a written document known as talaqnama.

2) Reconciliation- under the Muslim law jurisprudence, divorce is affected when the husband
pronounces the word talaq thrice. But the couple is supposed to make an attempt to reconcile
during the waiting period in between first pronouncement and second pronouncement with the
help of mediators and family members. If during this period the husband engages in sexual
intercourse with the wife, the divorce is negated.

3) Completion- the procedure of talaq is completed with the third pronouncement and the
divorce becomes irrevocable. Thereafter, the wife becomes haram for the husband5.

Triple talaq or Talaq-ul-biddat is an innovated mode of divorce not sanctioned by the Holy
Quran which is considered as sinful nevertheless is legal and practiced by majority of Muslim
population in India. The concept of triple talaq is nowhere mentioned or provided in Quran
which is the ultimate basis of the Shariat law, due to which there is a lack of clear cut
definitions. However, Aqil Ahmed has attempted to define triple talaq as –

“A divorce which is pronounced thrice in one sitting when the wife is in the state of purity
(tuhr), i.e., when man says: "I divorce you, I divorce you, I divorce you.”6

This mode of talaq is prevalent among Sunni Muslims only which comprises of 70% to 80%
of the Muslim population in India. The Hanafi School of the Sunni sect indulge in such mode
of divorce in spite of knowing it to be sinful. Once a divorce is effectuated, the wife becomes

5
Furqan Ahmad, “Triple talaq: An Analytical Study With Emphasis On Socio-Legal Aspects”, visit
https://books.google.co.in/books

6
Ibrahim B. Syed, “Triple talaq”, Islamic Research Foundation International, Inc., visit
www.irfi.org/articles/articles_151_200/triple__talaq.htm

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haram for the husband and he is prohibited to undergo a fresh nikah with her until and unless
halala is performed. He can perform nikah with her only if she marries another person and the
marriage is consummated and thereafter the person willingly divorces her. Triple talaq is the
most common mode of divorce prevalent in India.

Nature of Triple talaq

a) Shams Pirzada, Triple talaq in the light of Quran and Sunnah.

This article discusses the proper and improper mode of divorce as laid down under the Islamic
law. The author emphasizes on the fact that Quran insists on all possible efforts for
reconciliation before a divorce is given. A genuine attempt must be made by both the parties
in order to reconcile but if all attempts fail, only then the parties can seek for divorce. Also
talaq must be pronounced when the wife is in the period of ‘tuhr’. On the other hand, any
divorce which is done hastily and without any attempt to reconcile is regarded as improper and
is detested.

Triple talaq or talaq-ul-biddah is a prohibited mode of divorce which has no provision for
reconciliation instead once declared becomes irrevocable and ends the sanctity of the conjugal
life i.e. nikah. The article puts forth the blatant misuse of this mode of divorce by the Muslim
men and points out that triple talaq is like a hanging sword on the head of Muslim women as
the mere utterance of the word talaq thrice dissolves the marriage with no possible chance to
reconcile except if the woman undergoes halala. The article points out the physical and mental
distress of a woman who undergoes halala.

Talaq-e-Biddat means ‘talaq of the wrong innovation’. The Shias do not recognize Triple talaq
or Talaq-ul-biddat. This mode of divorce is prevalent only among the Sunni Muslims. Under
Sunni School (Hanafi sect), a talaq pronounced under compulsion or in a state of intoxication
or to please or satisfy any family member or in anger, rage or jest is considered valid.

Triple talaq further has two forms: Three declarations at one time, and one irrevocable
declaration.

1. Triple Declaration- It consists of three pronouncements in a single tuhr either in one

sentence (“I divorce thee thrice”) or in three separate sentences (“I divorce thee, I divorce thee,
I divorce thee”). Talaq becomes irrevocable immediately it is pronounced, irrespective of the
Iddat. As the talaq becomes irrevocable at once, it is called Talaq-i-bain i.e., irrevocable talaq.

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This form of divorce is condemned. It is considered heretical (irreligious) because of its
irrevocability. It is “good in law though bad in theology”.

2. Single Irrevocable Declaration- It consists of a single pronouncement made during a tuhr

clearly indicating an intention irrevocably to dissolve the marriage e.g. “I divorce thee
irrevocably” or “I had divorced thee in Talaq-ul-biddat or Talaq-i-bain”. Here the use of
expression “bain” (irrevocable) manifests of itself the intention to affect an irrevocable divorce7

3. THE IMPACT OF CHANGE IN SOCIETY UPON THE

PRACTICE OF TRIPLE TALAQ
Vrinda Narain, Women's rights and the accommodation of "difference:" Muslim Women in
India, 8 S. Cal. Rev. L. & Women's Stud. 43 1998-1999

Vrinda Narain, in her article has tried to put forth the miserable plight of Muslim women who
are discriminated and shunned by the caprices of personal laws. Their interests are
marginalized by the conservative leaders who are adamant not to reform the personal laws in
order to bring equality which is an integral feature of democracy as provided under the Indian
Constitution. The article highlights the recent practices of talaq being uttered thrice over
telephone, e-mail or thru letters and text messages. This innovative mode of divorce is being
in widespread use by the Muslim men without giving any plausible explanation to the wives.
As a result the divorced wives are left destitute. This article also outlines the struggle a Muslim
woman has to face in order to claim maintenance after divorce especially after the enactment
of the Muslim Women's (Protection of Rights on Divorce) Act, 1986. The article emphasizes
on a need for implementation of the Uniform Civil Code which can by balancing the interests
of all the personal laws and by removing the traditional patriarchal biasness, provide a platform
for the realization of various fundamental rights especially the right to equality as envisaged
under the Constitution of India.

Nothing has been more derogatory in discriminating weaker sex in any religion than
pronouncing triple talaq which is practiced by Muslim men in a few countries including India.
By uttering the word talaq thrice a Muslim man can unilaterally divorce his wife without giving

7
Dr. A.K. Jain, “Law Guide for LL.M Entrance”, Ascent Publications, 5th Edition, page 67

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any monetary compensation or taking any responsibility for even their children. Religiously,
Muslims in India are governed by a pre-independence era Shariat law i.e. Muslim Personal
Law Application (MPLA) Act, 1937 which remained silent on this unilateral mode of divorce.
Over the years the instrument of triple talaq has given sweeping powers to Muslim men to
divorce their wives even on flimsy grounds to enable them to satisfy vested desires. Since
MPLA has not been codified, it is open to any kind of interpretation by local clergy depending
on their whims, which makes the circumstance all the more difficult to deal with8. As a matter
of fact, triple talaq has emanated as a socioreligious bane to the Muslim womenfolk in India
due to its inherent devastating effect which are as follows:-

(i) Extent of victimization

While triple talaq is used as a shotgun to ruin the married life of a woman, a Muslim man
easily escapes from his responsibility of taking economic liability whatsoever, consequent to
imposing such type of divorce in India. Even the wife cannot return to her husband soon after
receiving the triple talaq message due to its irrevocable nature. Thus, Muslim women are
highly vulnerable to this whimsical mode of unilateral divorce. The suffering becomes more
aggravating and painful for the vast majority of illiterate/ less educated women who are
dependent along with kids on their husband's earnings only. Clearly, they are directly
victimized because, no provision was made by any Law, Act or, Court of India to protect these
women from the blatant discrimination, economic deprivation and social stigma inflicted on
them through triple talaq. It may not be out of place to mention here that India has the second
largest Muslim population in the world. After having the hurricane experience of government
interference at the initiative of Late Rajiv Gandhi, the then Prime Minister of India in the Shah
Banu case9 and its political aftermath no political party has the guts to raise the issue in an
appropriate forum for fear of political backlash and probability of losing potential Muslim vote
banks 10.

8
Zakia Soman and Noorjehan Niaz, “Why Triple talaq Needs to Be Abolished”, 17/06/2016,
visit http://thewire.in/43481/why-triple-talaq-needs-to-be-abolished/
9
Mohd. Ahmed Khan v. Shah Bano Begum And Ors, 1985 SCR (3) 844
10
Anusha Rizvi, “The Indian Media’s Focus on Shayara Bano Betrays an Ignorance of
Important Precedents”, 11/06/2016, visit http://thewire.in/42276/the-indian-medias-focus-on-
shayara-bano-betrays-an-ignorance-ofimportant-precedents/
14 | P a g e
 (ii) Deed of Community Leaders

The helpless status of Muslim women got prominently exposed in the amazing case of Nagma
Biwi vs. State of Orissa. Begum Nagma was pronounced triple talaq by her husband in a
drunken state. Mistake next day, he immediately called her back for reunification and she also
desired to return to her husband. But this time, their community leaders stood as a wall between
their marriage bondage. They forcibly sent Nagma Bibi and her three children to her father's
house with the suggestion to marry somebody else in expectation of getting a triple talaq from
the second one. She could remarry her first husband if she could manage another triple talaq
from her second husband. This system of targeted discrimination towards women is called by
them as Halala in Islam.

(iii) Quranic Stand

The Holy Quran prescribed equal right for both men and women without any sort of unethical
or intentional discrimination to either of them. Neither The Prophet nor The Holy Quran
approves this unilateral, disgraceful and irreversible form of triple talaq which is synonymously
known as Talaq-ul-biddat. Before thinking of divorce the couple should explore all remedial
procedures like involving parental sides from both partners for an honourable compromise,
involving Qazi for dispute resolutions, initial separation for three to six months and then taking
the opinion of husband and wife etc. After exhausting all routes if the separation appears
unavoidable for the interest of both partners, divorce may be enforced as a last sort after having
the concurrence of separating partners just like the concurrence for marriage during Nikah.
Therefore, triple talaq or talaq-ul-biddat in its present version of women oriented
discriminatory and unilateral form is in contravention of the spirit of The Holy Quran and
hence, un-Islamic.

(iv) Scope for remedy in the Personal Law

Although not in conformity with the spirit of The Holy Quran, a Muslim man can enjoy the
unlimited power of going for marriage after marriage just by breaking old marriages one by
one through the privilege of triple talaq without taking the consent of his wife, if he intends to

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do so. On the contrary, a Muslim woman cannot have the similar liberty like her husband as
she cannot break the clutch of marriage without the consent of her husband. Therefore, she is
considered like a commodity of her husband in the Islamic society of India.

On the other hand, it is not only a woman, sometimes a Muslim man also suffers when triple
talaq uttered by him in an inebriated condition or, heat of the moment during a family squabble
and he temporarily loses his self-control, may force him to loose wife as talaq-u-biddat is
irreversible that snatches the scope of marital reunion even after the things cool down. Thus it
snatches the liberty from both of them, which goes against their actual honest and cohesive
intentions. So a liberal, honest and impartial interpretation of this critical aspect is required to
cure the malady in Personal Law11.

(v) Need of Uniform Civil Code

Such injustice provokes the need of Article 44 of the Indian Constitution which proclaims for
Uniform Civil Code. In the multi-religious Indian society where the rights of people from
almost all religions are protected including that of religious minorities however small they may
be e.g. Parsis comprising a population of merely sixty thousand then, a massive Muslim
population spreading across every nooks and corner in India cannot be left in lurch for the
betterment of society. Even though categorized as the religious minority, Muslim population
counts second i.e. next to Hindu majority here and therefore, may not be left in seclusion for
being governed by Moulavis.

(vi) Inconsistency of Muslim Personal Law

Muslim Personal Law Application Act, 1937 was passed in British era while Indian
Constitution was framed in Independent India. With its inherent unilateral nature talaq-ulbiddat
mars the essence of Article 21 that ensures, irrespective of sex, religion, caste, creed, the right
to life and personal liberty which are considered essential for healthy development of a unit of

11
Danial Latifi v. Union of India, AIR (2001)7 SCC 74

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Indian society. The obsolete law falls outside the ambit of the Article 13 of Indian Constitution
due to its inherent incompatibility and resultant inconsistency. Therefore, the point of imposing
any part of Muslim Personal Law Application Act, 1937 on any section of Indian society
logically proves to be untenable and hence may be considered as null and void.

4. JUDICIAL APPROACH TOWARDS TRIPLE TALAQ

UNDER MUSLIM LAW

In the case of Rahmtullah v. State of UP, Hon’ble Justice Tilhari of the Allahabad High Court
observed that;

“talaq-ul-bIddat, that is giving an irrevocable talaq divorce at once or at one sitting or by

pronouncing it in a tuhr once in an irrevocable form, without allowing the period of waiting
for reconciliation or without allowing the will of Allah to bring about reunion, by removing
difference or cause of difference and helping the two in solving their differences, runs counter
to the mandate of the Holy Quran and has been regarded as by all under Islam-Sunnat, to be
sinful.”
In the case of Yousuf Rawther v. Sowramma, Justice Krishna Iyer held that the triple Talaq
is against the spirit of Holy Quran and that power of divorce is in the hands of the Muslim men.
It is the misinterpretation which has led to the practice of the custom of triple Talaq12.

Triple Talaq is a Unilateral form of Divorce

In the case of Mst. Zohara Khatoon v. Mohd. Ibrahim, the Hon’ble Supreme Court noted
that, “there can be no doubt that under the Mohammedan law the commonest form of divorce
is a unilateral declaration of pronouncement of divorce of the wife by the husband according
to the various forms recognized by law. A divorce given unilaterally by the husband is
especially peculiar to Mohammedan law. In no other law has the husband got a unilateral right
to divorce wife by a simple declaration”

12
https://blog.ipleaders.in/triple-talaq/

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The Triple Talaq in this form not only makes Muslim women victims of arbitrary and
whimsical decisions of their husbands, but being unilateral in nature, it also robs them of the
liberty to choose the form of divorce they want.

Triple Talaq is unlawful

In Qur’an commentary of well-known author Ibn Kathir, it is commented as follows

“Pronouncing Three Divorces at the same Time is Unlawful. The last Ayah we mentioned was
used as evidence to prove that it is not allowed to pronounce three divorces at one time. What
further proves this ruling is that Mahmud bin Labid has stated as An-Nasar recorded – that
Allah’s Messenger was told about a man who pronounced three divorces on his wife at one
time, so the Prophet stood up while angry and said “The Book of Allah is being made the
subject of jest while I am still amongst you?” A man then stood up and said, “Should I kill that
man, Messenger of Allah?”

In the recent case of Smt. Beena and Another v. the State of UP & others, Justice Suneet
Kumar of Hon’ble Allahabad High Court held that;

“The instant divorce (Triple Talaq) though has been deprecated and not followed by all sects
of Muslim community in the country, however, is a cruel and the most demeaning form of
divorce practiced by the Muslim community at large. Women cannot remain at the mercy of
the patriarchal setup held under the clutches of sundry clerics having their own interpretation
of the holy Quran. Personal laws, of any community, cannot claim supremacy over the rights
granted to the individuals by the Constitution.”

Conditions of a Valid Triple Talaq

In the case of Sayid Rashid Ahmed v. Anisa Khatun, Justice Baharul Islam observed that,
“Reasonability as an essential for Talaq; Reconciliation attempts by the elders or the well-
wishers of the family to be of utmost importance before commencement of Talaq” and “ it may
be effected” if the said effects fails. An attempt at reconciliation by two relations one each of
the parties, is an essential condition precedent to talaq.

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Talaq should be preceded by the reconciliation attempts. In the case of Rukia Khatun v. Abdul
Khalique Laskar, it was held that Talaq was only to be pronounced after failed attempts
between the husband and the wife, after each appointed an arbitrator to solve the dispute.
Without reconciliation, the commencement of divorce is held to be in contempt with the saying
of the Holy Quran. This observation was upheld by the Justice Badar Durrez Ahmad of the
Delhi High Court in the case of Masroor Ahmad v. State (N.C.T of Delhi) & Another, and
he further held that;

“Reconciliation before the procedure of the divorce is of utmost importance and is in

concurrence with the Holy Quran. It is of utmost necessity to follow the procedure of divorce
as written in Quran and proper reasoning to be given before the commencement of the Divorce”

There Must Be A Reasonable Cause

The Hon’ble Supreme Court in the case of Shamim Ara v. State of UP, held that the correct
law of divorce as ordained by Holy Quran is that Talak must be for reasonable cause; and it
must be preceded by an attempt of reconciliation between the husband and the wife by two
arbitrators. Therefore, the factum of divorce is required to be proved by the husband including
the condition precedent there. The Kerala High Court in the case of Mohammed Haneefa v.
Pathummal Beevi, denounced the practice of Triple Talaq and declared it as the “sufferings
of monstrosity for Muslim wives”.

The correct law of Talaq as ordained by the Holy Quran is that Talaq must be for a reasonable
cause and be preceded by attempts at reconciliation between the husband and the wife by two
arbiters– one from the wife’s family and the other from the husband’s; if the attempts fail,
Talaq may be effected.

Triple Talaq must be Preceded by Process of Conciliation

Furthermore, in the case of Dilshad Begum Ahmedkhan Pathan v. Ahmad khan Hanif
Khan Pathan & Anrs, the Bombay High Court held that mere pronouncement of Talaq by the
husband or merely declaring his intention or his acts of having pronounced Talaq is not
sufficient and does not meet the requirements of law. In every such exercise of right to Talaq

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the husband is required to satisfy the precondition of arbitration for reconciliation and reasons
for talaq.

In the case of Kunhi mohammed v. Ayisha kutty, the division Bench of the Kerala High
Court after reviewing the earlier precedents and the authorities of Muslim law held that;

“Following the decision of the Supreme Court Shamim Ara (supra) and decision of the Division
Bench in Ummer Farooque (supra), it is evident that compliance with the mandate of Ayat 35
of Sura IV that two arbiters must be appointed and an attempt for reconciliation by them must
precede the divorce is an essential, non-negotiable and unavoidable pre-requisite.”

5. The constitutional validity of the practice : SHAYARA BANO

CASE
In the Holy Book Quran, nikah means ‘Misaqan Ghaliza’ that means a strong bond and it
explains how and with whom one can enter into this strong bond and this bond cannot be
dissolved without proper reason and method. Triple talaq has not only resulted in atrocity but
also infringed the fundamental rights guaranteed to the citizens of India. Article 14 is the right
to equality in which no person is above the law, as it is supreme. Every person is equal in the
eyes of law irrespective of gender or religion. We have seen that, in triple talaq all right of
divorce is bestowed upon the men only. As the marriage is undertaken by the free consent of
both the parties, dissolution of such marriage also should be by the free consent of the parties,
only then equality exists. But in triple talaq the husband can pronounce the divorce without
even the knowledge of the wife, which in itself is infringing the Muslim wife’s right to equality.
The Muslim wife have to go to the Qazi and have to prove the atrocities committed by her
husband in order to get a divorce where a husband can pronounce talaq without any reasonable
logic. Triple talaq has conferred unlimited and absolute power to give instant divorce to his
wife, even when there is no just or reasonable cause. In one of the case, a woman was given
triple talaq as she did not wake up when her husband returned late from work. In this case, she
was not at all aware of the fact that she had been divorced; it was later informed by her mother-
in-law about the scenario. This shows that how the doctrine of triple talaq has been misused so
as to satisfy the male ego and to suppress women without any just cause. Article 15(1) state

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that “The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, and place of birth or any of them.” Article 15(1) does not permit any kind of
discrimination; whereas triple talaq violates it. Triple talaq is an detestable practice in which
all the rights are conferred upon the men and women are considered mere as puppets, whom
they can control as they desire. The Muslim women tend to suffer triple penalty because of
their gender. Article 21 is the most sacred fundamental right conferred by the law of laws. It
speaks about the right to life and personal liberty, which has been violated by the doctrine of
triple talaq. It encroaches upon the basic dignity that a woman holds under article 21. The
Quran encourages people to respect the women and not to abandon her without any just reason
or for satisfying the male ego. If a spouse gives divorce to his spouse without any logical and
rational cause it will not only violate the Quran but also the supreme law of the land. It violates
the basic rights of a woman as she does not get to know why she has been given divorce and
also is deprived of her rights on her children and her matrimonial house. She becomes dejected
and helpless after such divorce. The most important contention which makes a triple talaq
violative of article 21 is this concept is totally arbitrary and woman has no say in this process
which is totally unfair and unconstitutional . Article 25(1) provides freedom of religion where
every citizen if given the right to choose and practice and freely any religion of his or her own
choice. It also states that no one should interfere with it. Muslim marriages and divorces are
governed by Muslim personal laws and them solely responsible for the infringement of
fundamental rights of Muslim women. In Quran, it is nowhere mentioned that talaq-ul-biddat
that is triple talaq should be practiced to dissolve the marriage. Marriage and successions are
not a part of religion and with the changing time the law also needs to change. This idea was
supported by Hon’ble court in Prakash v. Phulavati and it was stated that there can be no
discrimination on the grounds of religion. Therefore, it is clearly visible from the above
instances that triple talaq is violative of constitution. It violates the basic structure of the
constitution which provides justice to both men and women equally but it is not justifiable as,
it is discriminatory to women and this practice is totally arbitrary in nature which makes it
violative of fundamental rights guaranteed under constitution. In the recent judgement in
Sharyara Bano v. Union of India, the triple talaq has been held unconstitutional and illegal
in eyes of law. It was the need of the hour, as mentioned above as it violates the above articles
of the constitution. Judicial Decisions on Triple Talaq Mohd. Ahmed Khan vs Shah Bano
Begum and Others This was one of the landmark judgements in the legal history, in 1985.
This case explained that what should be included under the decree of the Supreme Court. In
this case the issue was that Ms. Bano claimed the maintenance under the Cr.P.C rather than

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through the personal laws, after getting divorced from her husband Mohd. Ahmed Khan.
According to the personal laws, she could only claim maintenance only during the period of
iddat, but as in the Indian laws, she had to be given maintenance all through her life, with some
exceptions too, under which she didn’t came. As the plaintiff and the defendant were Muslims,
were to be governed by the Muslim Personal Law. Since the petition was filed under the Cr.P.C,
the district court, the High Court and the Supreme Court passed their judgements, favouring
Ms Shah Bano. This judgement was criticized by the AIMPLB, as they claimed that decree of
Personal laws was beyond the jurisdiction of the courts. The Shah Bano Case received various
public stances. Government then had passed a legislation, termed as ‘The Muslim Women
(Protection of Rights on Divorce), 1986’, and aimed to overturn the judgement of the SC.
According to this legislation, Muslim women were entitled to a ‘fair and just’ amount of money
within the ‘iddat’ period, beyond which, the husband was to have no liability. Ahmedabad
Women Action Group (AWAG) v. Union of India According to Muslim laws it allows Muslim
men to have four marriages, along with the right to divorce, under the concept of Talaq,
whereby, the husband possess the right to divorce by pronouncing the term ‘Talaq‘, without
judicial methods, and this may happen without her consent. The PIL was filed in this case
addressing both these issues. In the light of these arguments, the court was of the opinion that
India and Indians have been governed by personal laws, regardless of the time period. It was
of the view that interference by the court would lead to several undesirable results, as the
verdict of personal laws was beyond the jurisdiction of the courts. The petition was dismissed.
Danial Latifi and another v. Union of India After the judgement of Shah Bano’s case, there
was a disorder in the Muslim personal law. The parliament passed and enforced The Muslim
Women Act, 1986, which provided that under section 3(1)(a), a divorced woman is entitled to
reasonable and fair provisions, and maintenance within the ‘iddat’ period. One of the council,
Danial Latifi confronted the above act, claiming that it was unconstitutional, and in violation
of Article 14 and 21. The petitioner, in his argument said that that the Act is unconstitutional
and has the potential of overpowering the Muslim women, and weakens the secular character.
It is reasonless to deprive the Muslim women of the applicability of section 125 of Cr.P.C and
present act is in violation of article 14 and 21. To this, the respondent said that personal laws
are a legitimate basis for discrimination and therefore does not violate article 14 of the
Constitution. The Court thereby favored the respondents. Shamim Ara. v. State of U.P. The
petitioner married the respondent in 1948, in accordance with the Muslim personal law, and
had four sons. The wife filed an application in the court, under Sec. 125 of the Cr.P.C, claiming
that her husband had abandoned her and there was cruelty by him. The family court rejected

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her appeal, on the grounds that she had already been divorced. However, a sum of Rs. 150/-
was granted as maintenance for one son, till he attained majority. The petitioner denied her
divorce. The SC was of the view that the mere plea of a Talaq would not validate the same.
The Quranic process of obtaining a Talaq needs to be fulfilled.

Shayara Bano v. Union of India and others

This case has brought enthusiasm in everyone’s mind as it has challenged the concept of
‘instantaneous triple Talaq’ and not the concept of ‘triple Talaq’. The PIL was filed by Ms
Shayara Bano. This petition has been greatly been supported and believed to have given a
chance to those who have suffered. The PIL was initiated by Ms Shayara Bano, a resident of
Uttarakhand, who was constantly abused by her husband and eventually divorced by way of
Triple Talaq at one go. Her difficulty was heard by the SC of India. India is a secular country
and its citizens deserve to be happy, content and should always have the right to equality and
justice. The Hon’ble Supreme Court has chosen to allow the rights World Wide Journal of
Multidisciplinary Research and Development of those who truly deserve it, is commendable
and a positive step towards the injustice that women are subjected to. The bench of the Supreme
Court has declared the judgement that the triple talaq has been held unconstitutional and
violative of various articles in the Indian Constitution. Islamic Countries Can Ban Triple Talaq
Also There are more than 20 Islamic countries that have banned this inhuman practice of triple
talaq including neigh bouring countries like Pakistan, Bangladesh, Sri Lanka, etc. Egypt was
the first ever country to declare triple talaq as invalid and it provides 90 days procedure for
divorce. In 2006, Sri Lanka amended its Marriage and Divorce Act, 1951 that does not grant
validity to the concept of triple talaq. As stated, the law requires a husband wishing to divorce
his wife to give notice of his intention to a Qazi (Islamic judge), who should attempt a
reconciliation between the couples over the next 30 days. In the case of disagreement after the
devised period, the husband can give talaq to his wife only in the presence of the Qazi and two
witnesses. Many people who understand and study Muslim Law rates the Lankan law as the
most ideal legislation on triple talaq. The abolition of triple talaq in Pakistan took place in 1951
and they also have a system of validating a talaq after a period of 90 days only and not before
that. Tunisia and Algeria both adopted Tunisian code of personal status and banned instant
talaq. In 1959, Iraq contrary to most Arab countries has banned the triple talaq . In spite of all
above countries who have a great number of muslim population residing in their countries has
banned the archaic and intolerable practice of talaq-ul-biddat then why can’t we abolish this in
human practice.

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 6. SOLUTION

The time has come for major steps to be taken to bring about reform and change in the Muslim
Personal Law in India. In order to accomplish these following steps must be taken:-

CODIFICATION OF THE MUSLIM PERSONAL LAW:

The process of codification of Muslim Law is an imperative and now must be seriously
undertaken by a group of legal experts, liberal ulema and scholars in the field. Gender-just laws
must be the common denominator.Alongside Muslim women, Muslim men’s organizations
must push for change.

ROLE OF THE STATE:

Parliament should step in with measures not for a Hindu code or a Muslim Code but a secular
code, drawn from basic principles of personal freedom, human rights and justice in the country.
Strict measures must be taken against if the Muslim Personal Law (Shariat) Application Act
violates democratic rights guaranteed to the individuals by the Constitution.

ENCOURAGING THE IDEA OF A UNIFORM CIVIL CODE:

It will help the cause of national integration by removing the contradictions based on
ideologies and traditions. It will also help in eradicating many evils, unjust and irrational
practices prevalent across the communities, and will also strengthen the unity and integrity of
the country. These norms have to be observed in all human transactions in any civilized society.

INTRODUCTION OF GENDER JUST PERSONAL LAWS:

Since most personal laws reflect the hierarchical notions of society and thereby accord
secondary status to women. So what we need are gender just personal laws. The gender just
code in turn has to be the same for all the communities and hence, it will be uniform. Gender
justice has to be the basis of uniformity; blind uniformity may turn out to be most unjust for
women.

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PRIORITISATION OF GENDER EQUALITY:

Priority must be given to the equality between men and women in terms of their fundamental
rights over conservative interpretations of religious scholars. This can be done by saying a big
no to triple talaq and polygamy. The personal law question needs to be understood in the
context of patriarchy and laws that accord secondary status to women need to be reformed.

SUPPORTING ALL REFORM MOVEMENTS THAT CHALLENGE PATRIARCHY:

Every citizen should join hands with the government to eradicate the injustice against women
which will lead to the overall growth and development of entire nation. We have to try to lead
traditions out of darkness into light and not allow them to lead us into darkness. Policies on
women’s empowerment exist at the national, state, and local (Panchayats) levels in many
sectors, including health, education, economic opportunities, gender-based violence, and
political participation. However, there are significant gaps between policy advancements and
actual practice at the community level. So the main effort of the state and all the law-making
bodies should be to fill this gap between ideology and practice of law making. They should try
to abandon all those laws (like Triple Talaq, polygamy etc.) which are against constitutional
ethos. The Constitution guarantees minority communities the right to freely practice and
propagate their religion, own property and establish places of worship and run educational
institutions. This constitutional protection draws strength from a framework of liberal
democracy. Moreover, in a secular democracy religious laws cannot trump the constitutional
right to equality. Given that Hindu personal laws have evolved to empower Hindu women,
there’s no reason why Muslim women have to suffer from patriarchal religious practices. Triple
talaq and polygamy fail the test of Indian constitutionality. Thus, the rights of women should
be respected across nations which are denied through power structures and social customs like
Triple Talaq and polygamy. The women should not be deprived of their basic dignity of life
which they deserve. Introduction of a secular code drawn from the principles of personal
freedom, human rights and justice will not only strengthen secularism but will reinforce women
empowerment13.

13
http://ijcrt.org/papers/IJCRT1704301.pdf

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 7. CONCLUSION CRITICISM AND SUGGESTIONS

Marriage is a very sacred relationship and it should be dissolved in very sacrosanct manner
irrespective of religion but this corrupt practice of triple talaq violates the basic human rights
which are conferred upon the women citizens of India. This practice makes Muslim men
superior to the Muslim women. The after effect of divorce is another vulnerability which a
woman has to suffer; they become economically poor and socially backward. The society does
not accept and they are taken for granted even by their own parents. They are taunted and
treated roughly as if it is they themselves who are responsible for the divorce. It is been noted
that in the Muslim community, marriage is a contract between a male and a female and it is
completed only when both the parties pronounce ‘Qubool hai’ thrice, but then during divorce,
it is only the husband who can pronounce ‘talaq’ thrice. This explicitly violates Article 14 that
every person should be treated equally. Muslim women have to suffer because they are Muslim
and certain rights have been taken away from them. By this, it is evident that there is a violation
of Article 15. The most supreme right Article 21 is also violated as Muslim women are not
given the right to choose about their life by themselves. Article 25 is violated as the religious
practices under the Muslim community are not protected under this article. The Supreme Court
once again have gave us hope, and have made us believe in our legal system, by declaring triple
talaq to be unconstitutional and illegal and we hope that B.J.P Government have successfully
passed the Muslim Women (Protection of Rights on Marriage) Bill 2017 in Rajya Sabha also.
It gives Muslim women a new hope to lives her life with dignity and respect. It is the right time
that the state should promote awareness regarding this issue so as to uplift the status of Muslim
women in the country14.

14
https://wwjmrd.com/upload/triple-talaq-unconstitutional-and-arbitrary_1517053898.pdf

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 7. BIBLIOGRAPHY

Links: -

1. supremecourtofindia.nic.in/supremecourt/2016/.../6716_2016_Order_22-Aug-2017.

2. w wp-content/uploads/.../BMMA-WS-filed-on-4.4.2017.pdf ww.lawyerscollective.org/

3. indianexpress.com › India

4. www.livemint.com › Opinion › Columns

5. https://en.wikipedia.org/wiki/All_India_Muslim_Personal_Law_Board

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