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TRIPLE TALAQ

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 TRIPLE TALAQ
BY ADITI SINGH
BBA LLB, 2ND YEAR
ROLL NO. - 00316503518

Abstract— Making triple talaq unconstitutional is one of the most historic moves taken by the
Indian parliament. Generally human rights are equated with more freedom and progress. However,
it becomes pertinent to note that conferring rights do not always result in emancipation. The major
reason behind this exclusionary nature of human rights is the universal assumption on which it is
based. The darker side of human rights most apparently manifests itself in case of women as they
are caught at the intersection of community identity and the narrative of modernity. One such
universalistic subject is the image of a thoroughly victimized Muslim women who is in need of
protection through the liberal rights discourse. The current debate around triple talaq, centered on
the Sharaya Bano and several batches of petitions as well as Supreme courts own Suo moto PIL
considers certain aspects of Islamic personal laws which amount to gender discrimination and
hence violates the constitution misses the point of intersectionality. This research paper will
introduce what is the basic meaning of triple talaq as defined in the Muslim marriage and divorce
act and its journey until its unconstitutionality was determined. The difficulties in taking consent
and getting majority from both the houses of the parliament (Lok Sabha and Rajya Sabha) will
also be focused upon. Forms of Divorce and Marriages in Muslims Law will be discussed along
with their essential characteristics. Is Talaq-e-Biddat Islamic in nature and whether it comes under
the protection of the Article 25 of the constitution? Is instant talaq violative of article 14 of Indian
constitution? Can the legislature make laws protecting Muslim women under article 15(3) and (4)
of the constitution? Whether Muslim Personal Law (Shariat) Application Act, 1937 bestows
statutory status to the subjects governed by it or is it still sheltered under “Personal Law” which is
not within the meaning of word “law” under Article 13 of Constitution of India? It will also
include the related laws and amendment in the Muslim women’s rights and what are the major
legislation mad and amended till date to protect Muslim women from unjust treatment. The
ongoing debates by different sections and political parties of the country, their stand on the
decision of the legislature and judiciary will also be touched upon along with the view of Muslim
community people and All India Muslim Persona law Board (AIMPLB) as well. The idea behind
making triple talaq unconstitutional and making amendments to it will also be highlighted. The
undoubted case of maintenance for Muslim women (Shah Bano case) will also be discussed in
detail with its ratio decendi with the binding authority of the amendments made so far and banning
of triple talaq. The illegal use of triple talaq even after its abolishment and the steps taken by police
authorities and judiciary in this regard. Why the legislation has only declared instant talaq only
unconstitutional and not other forms of talaq? What were the obstacle in passing of the legislation?
The difficulties Muslim women had to face by this form of divorce and how this form of divorce
was not valid along with how Muslim men made mockery of their own personal laws. The
constitutional validity of the act will also be discussed. Finally, analysis will be made about
whether making triple talaq unconstitutional is a bane or boon for the Muslim women.

INTRODUCTION

If simply understood Triple talaq is a form of divorce in Muslim law where husband when says the
word “talaq” three times in oral, written or in electronic form. Triple talaq, also known as talaq-e-

1
biddat, instant divorce1 and talaq-e-mughallazah (irrevocable divorce) 2, is a form of Islamic
divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic
schools of jurisprudence34.

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. Article 44 states:

44. Uniform civil code for the citizens The State shall endeavour to secure for the
citizens a uniform civil code throughout the territory of India

Triple talaq became illegal in India on 1 August 2019, replacing the triple talaq ordinance
promulgated in February 2019.
The Muslim Women (Protection of Rights on Marriage) Bill, 2019 passed on 26 July 2019 after a
very long discussion and opposition finally got the verdict (the Indian Supreme Court judgement of
August 2017 described below) to all women. It makes instant triple talaq (talaq-e-biddah) in any
form – spoken, written, or by electronic means such as email or SMS – illegal and void, with up to
three years in jail for the husband.

BACKGROUND

Muslim family affairs in India are governed by the Muslim Personal Law (Shariat) Application Act,
1937 (often called the "Muslim Personal Law"). It was one of the first acts to be passed after
the Government of India Act, 1935 became operational, introducing provincial autonomy and a
form of dyarchy at the federal level. It replaced the so-called "Anglo-Mohammedan Law"
previously operating for Muslims, and became binding on all of India's Muslims 56.
In traditional Islamic jurisprudence, triple talaq is considered to be a particularly disapproved, but
legally valid, form of divorce 7. Changing social conditions around the world have led to increasing
dissatisfaction with traditional Islamic law of divorce since the early 20th century and various
reforms have been undertaken in different countries. Contrary to practices adopted in most Muslim-
majority countries, Muslim couples in India are not required to register their marriage with civil
authorities. Muslim marriages in India are considered to be a private matter, unless the couple
decided to register their marriage under the Special Marriage Act of 1954. Owing to these historical
factors, the checks that have been placed on the husband's unilateral right of divorce by governments
of other countries and the prohibition of triple talaq were not implemented in India

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2009

1
"Triple Talaq verdict: What exactly is instant divorce practice banned by court". Hindustan Times. 22 August
2017. Retrieved 18 September 2017
2
Mohammed Siddique Patel. "The different methods of Islamic separation – Part 2: The different types of
Talaq". www.familylaw.co.uk. Retrieved 29 May 2017.
3
https://timesofindia.indiatimes.com/city/hyderabad/hanafi-jurisprudence-sanctions-triple-
talaq/articleshow/60182584.cms
4
http://indianexpress.com/article/opinion/columns/law-morality-triple-talaq-muslim-islam-4743272/
5
Mukhopadhyay, Construction of Gender Identity (1994), p. 61.
6
Murshid, Inheritance: Contemporary Practice – South Asia (2003), p. 304.
7
Esposito & Delong-Bas, Women in Muslim Family Law (2001), pp. 30–31

2
 The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was introduced in Lok
Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on June 21, 2019. It
replaces an Ordinance promulgated on February 21, 2019.

 The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e.
not enforceable in law) and illegal. It defines talaq as talaq-e-biddat or any other similar form
of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce. Talaq-e-
biddat refers to the practice under Muslim personal laws where pronouncement of the word
‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable
divorce.

 Offence and penalty: The Bill make declaration of talaq a cognizable offence, attracting up
to three years’ imprisonment with a fine. (A cognizable offence is one for which a police
officer may arrest an accused person without warrant.) The offence will be cognizable only if
information relating to the offence is given by:
(i) the married woman (against whom talaq has been declared), or
(ii) any person related to her by blood.

 The Bill provides that the Magistrate may grant bail to the accused. The bail may be granted
only after hearing the woman (against whom talaq has been pronounced), and if the
Magistrate is satisfied that there are reasonable grounds for granting bail.

 The offence may be compounded by the Magistrate upon the request of the woman (against
whom talaq has been declared). Compounding refers to the procedure where the two sides
agree to stop legal proceedings, and settle the dispute. The terms and conditions of the
compounding of the offence will be determined by the Magistrate.

 Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek
subsistence allowance from her husband for herself and for her dependent children. The
amount of the allowance will be determined by the Magistrate.

 Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek
custody of her minor children. The manner of custody will be determined by the Magistrate.

THE ON-GOING CONFLICT OF OPINIONS

OPPOSITION TO TRIPLE TALAQ

The practice faced opposition from Muslim women, some of whom filed a public interest
litigation in the Supreme Court against the practice, terming it "regressive”. The petitioners asked
for section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, to be scrapped, describing
it as being against Article 14 of the Constitution (equality before the law)8.

8
Thakur, Pradeep (23 January 2017). "Triple Talaq: Law panel studies practices of Muslim nations". The Times
of India.

3
section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, states:

2. Application of Personal law to Muslims.—Notwithstanding any custom or usage to the contrary,

in all questions (save questions relating to agricultural land) regarding intestate succession, special
property of females, including personal property inherited or obtained under contract or gift or any
other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian,
khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs
(other than charities and charitable institutions and charitable and religious endowments) the rule
of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

Article 14 of the Indian constitution states:

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.

SUPPORT OF TRIPLE TALAQ

Triple talaq has been supported by the All India Muslim Personal Law Board (AIMPLB), a non-
governmental body that supervises the application of Muslim personal law. It believes that the State
does not have the right to intervene in religious matters.
AIMPLB issued a code of conduct in April 2017 regarding talaq in response to the controversy over
the practice of triple talaq. It also warned that those who divorce for reasons not prescribed under
shariat will be socially boycotted in addition to calling for boycott of those who use triple talaq
recklessly and without justification9. In addition, it also stated that it should be delivered in three
sittings with a gap of at least one month each10.

JUDGEMENT

The case was called Shayara Bano v. Union of India & Others. The bench that heard the
controversial triple talaq case in 2017 was made up of multifaith members. The five judges from
five different communities are Chief Justice JS Khehar (a Sikh), and Justices Kurian Joseph (a
Christian), RF Nariman (a Parsi), UU Lalit (a Hindu) and Abdul Nazeer (a Muslim).
The Supreme Court examined whether Triple talaq has the protection of the constitution—if this
practice is safeguarded by Article 25(1) in the constitution that guarantees all the fundamental right
to "profess, practice and propagate religion". The Court wanted to establish whether or not triple
talaq is an essential feature of Islamic belief and practice.
In a 397-page ruling, though two judges upheld validity of instant triple talaq (talaq-e-biddat), the
three other judges held that it was unconstitutional, thus barring the practice by a 3–2 majority. One
9
Shaurya, Surabhi (17 April 2017). "Triple Talaq: All India Muslim Personal Law Board issues code of
conduct; here's what it says". India.com
10
Bajpai, Namita (16 April 2017). "All India Muslim Personal Law Board announces code of conduct for
triple talaq". The New Indian Express.

4
judge argued that instant triple talaq violated Islamic law. The bench asked the central government
to promulgate legislation within six months to govern marriage and divorce in the Muslim
community. The court said that until the government formulates a law regarding instant triple talaq,
there would be an injunction against husbands pronouncing instant triple talaq on their wives.
EARLIER CASE RELATING TO TRIPLE TALAQ AND MAINTAINANCE

Mohd. Ahmed Khan v. Shah Bano Begum commonly referred to as the Shah Bano case, was a
controversial maintenance lawsuit in India, in which the Supreme Court delivered a judgment
favouring maintenance given to an aggrieved divorced Muslim woman. Then
the Congress government, panicky in an election year, gave in to the pressure of Muslim orthodoxy
and enacted a law with its most controversial aspect being the right to maintenance for the period
of iddat after the divorce, and shifting the onus of maintaining her to her relatives or
the Waqf Board. It was seen as discriminatory as it denied right to basic maintenance available to
non-Muslim women under secular law.

Background of the case

In 1932, Shah Bano, a Muslim woman, was married to Mohammed Ahmad Khan, an affluent and
well-known advocate in Indore, Madhya Pradesh, and had five children from the marriage. After 14
years, Khan took a younger woman as second wife and after years of living with both wives, he
divorced Shah Bano, who was then aged 62 years. In April 1978, when Khan stopped giving her
the ₹200 per month he had apparently promised, claiming that she had no means to support herself
and her children, she filed a petition at a local court in Indore, against her husband under section
125 of the Code of Criminal Procedure, asking him for a maintenance amount of ₹500 for herself
and her children. On November 1978 her husband gave an irrevocable talaq (divorce) to her which
was his prerogative under Islamic law and took up the defence that hence Bano had ceased to be his
wife and therefore he was under no obligation to provide maintenance for her as except prescribed
under the Islamic law which was in total ₹5,400. In August 1979, the local court directed Khan to
pay a sum of ₹25 per month to Bano by way of maintenance. On 1 July 1980, on a revisional
application of Bano, the High Court of Madhya Pradesh enhanced the amount of maintenance
to ₹179.20 per month. Khan then filed a petition to appeal before the Supreme Court claiming that
Shah Bano is not his responsibility anymore because Mr. Khan had a second marriage which is also
permitted under Islamic Law.

Judgement

On 3 February 1981, the two-judge bench composed of Justice Murtaza Fazal Ali and A.
Varadarajan who first heard the matter, in light of the earlier decisions of the court which had held
that section 125 of the Code applies to Muslims also, referred Khan's appeal to a larger Bench.
Muslim bodies All India Muslim Personal Law Board and Jamiat Ulema-e-Hind joined the case as
intervenor. The matter was then heard by a five-judge bench composed of Chief
Justice Chandrachud, Rangnath Misra, D. A. Desai, O. Chinnappa Reddy, and E. S. Venkataramiah.
On 23 April 1985, Supreme Court in a unanimous decision, dismissed the appeal and confirmed the
judgment of the High Court.

5
 Supreme Court concluded that "there is no conflict between the provisions of section 125 and those
of the Muslim Personal Law on the question of the Muslim husband's obligation to provide
maintenance for a divorced wife who is unable to maintain herself." After referring to the Quran,
holding it to the greatest authority on the subject, it held that there was no doubt that the Quran
imposes an obligation on the Muslim husband to make provision for or to provide maintenance to
the divorced wife. Shah Bano approached the courts for securing maintenance from her husband.
When the case reached the Supreme Court of India, seven years had elapsed. The Supreme Court
invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste,
creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony.

CASES EVEN AFTER THERE HAS BEEN A BAN ON TRIPLE TALAQ

1. A case of triple talaq has been registered at Savadatti police station, the first in Karnataka since the
Parliament passed the Muslim Women (Protection of Rights on Marriage) Act 2019, which bans
divorce by triple talaq 11.
2. On 24th August 2019, a man has been arrested in Uttar Pradesh's Muzaffarnagar district for allegedly
divorcing his wife by pronouncing the word 'talaq' thrice, a practice which has been criminalised,
police said on Saturday12.
3. Maharashtra registered its first case, with Mumbra police booking a Vikhroli resident for allegedly
sending his wife a triple talaq message on WhatsApp13.

CONCLUSION

Thus, it can be concluded that making of Triple Talaq as unconstitutional or void was a big step
taken by both legislature and judiciary. It was a dream come of true for the women who were sufferer
of its misuse. It was used by people as a toy and used to type “talaq” word 3 times through any
means be it oral, written or electronic form and thus turned they customs according to themselves
without taking into consideration the rights of women. “Talaq” or “Divorce” as in Hindu law is to
be the last resort and cannot be taken merely on a trivial wear and tear of the marriage. Also, the
recent trends show that even after being declared as unconstitutional and void people are still using
it illegally.

REFERENCES

1. https://www.prsindia.org/billtrack/muslim-women-protection-rights-marriage-bill-2019
2. https://en.wikipedia.org/wiki/The_Muslim_Women_(Protection_of_Rights_on_Marriage)_Act
,_2019

11
https://timesofindia.indiatimes.com/city/hubballi/karnatakas-first-triple-talaq-case-filed-in-
belagavi/articleshow/70824474.cms
12
https://www.news18.com/news/india/man-arrested-in-ups-muzaffarnagar-for-divorcing-through-triple-talaq-
2282077.html
13
https://www.thehindu.com/news/cities/mumbai/case-registered-against-thane-man-under-new-triple-talaq-
law/article28798992.ece

6
 3. https://en.wikipedia.org/wiki/Triple_talaq_in_India
4. https://indiankanoon.org/doc/115701246/
5. https://www.indiaabroad.com/blogs/muslim-personal-law-is-outdated-unfair-and-
irrational/article_c8c5ea22-8a91-11e7-97fd-cfb62c947303.html
6. http://www.lawyersclubindia.com/articles/Triple-Talaq-in-India-8428.asp
7. https://www.business-standard.com/about/what-is-triple-talaq-law
8. https://timesofindia.indiatimes.com/topic/Triple-Talaq

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