PREFACE

The goal of this draft is to analyse the meaning of triple talaq in Mohammedan law. It
answers the query that what does the Sharia law say about this issue and how does it
safeguard the rights of women. Actually, there are some wrong perceptions about muslim
women that they are deprived of their rights under the Sharia law. The paper at hand will also
figure out the views of different sects on triple divorce. This precisely discusses the relevant
case laws. Also, it exposes the legislation on triple divorce. According to book of Allah, Holy
Quran, marriage is the gathering of two human beings of opposite gender in “mawaddah and
rahma”, love and mercy. In the religion of Islam, ‘marriage’-

1) is considered as holy and spiritual agreement. But regardless of this, marriage is

partially sacred and,
2) partial civil contract.

Marriage is regarded as a holy ritual. But when we talk about rights and duties of both
parties, they are lead under ordinary contract.

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 INTRODUCTION
Many social practices that reflect social inequalities hide behind the cover of religion.
Personal laws, under British administrators were drawn from diverse sources. It reflected the
gender prejudices of its times since the interpreters of “religion” have been mostly men. The
process of reforming regressive practices also began during the British rule. Reformers ended
practices like Sati and Child Marriage. Conservative sections in the society opposed these
reforms and insisted that these would be preserved in the name of “defence” of religion.
There is a rising people’s movement within the community to get rid of triple talaq. The
Bharatiya Muslim Mahila Andolan (BMMA), a group at the forefont of this campaign for
equality, surveyed almost 5,000 women. The results were categorical; 78% of those polled
had been divorces via triple talaq, and more than 90% wanted the practice banned. There has
also been a conspicuous silence among lawmakers around the most abused practice of
‘Nikkah Halala’, which requires a woman to marry and have sex with another man before she
can remarry a man who has divorced her thrice. The idea is not to essentialise Islam or any
other faith but to remove the orthodoxy of all religions and cultures which are titled against
women, girls and often children.

The personal law in India is a law for people of different religion and applicable according to
the religion of the person. For many decades Muslim women are fighting for gender equality
in the Islamic law that governs right related to marriage, divorce and property rights. All
India Personal Law Board is one of the influential bodies in Muslim community. There are
lots of supports as well as criticism about this board. Many time this board rejected the
proposal to change the Muslim Personal Law as they believe it will infringe the basic
principles of Islam. Further, there are many male members’ domination in that particular
board whereas Quran does not support a system that is only managed by the patriarchy
system. Muslim women rights of marriage, divorce, inheritance has encouraged many
Muslim women activists to fight for their rights. The controversial Islamic divorce practice of
instant triple talaq has been stuck down as arbitrary and against the tenets of Islam. The
practice was against Article 14 of the Constitution, which guarantees the right to equality, the
Supreme Court has ruled.

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 ANALYSIS

What is instant Triple Talaq?

⮚ It is an instant divorce custom being practiced among the Muslim fraternity,

conceding the balance of ending the matrimonial alliance, in the favour of their male
counterparts, i.e., husbands , by simply pronouncing the word “TALAQ” three times.
The unfair practice does not take into account the intricacies of human nature
governed by sudden emotional outbursts in the heat of the moment and sometimes
giving them an easy way out to further their desire of polygamy. Therefore, this
chauvinistic and paternalistic practice, as declared by the Supreme Court, shall ultra
vires not only infringe the right to equality but also is gender discriminatory. Hence,
no amount of argument that the judgement is an instruction to the personal laws of
the religion, can fairly justify its perpetual practice, profession and propagation.

● There are three forms of talaq in Islam: Ahsan, Hasan and Talaq-e-Biddat

(triple or instant talaq). Ahsan and Hasan are revocable but Biddat is
irrevocable.

● Triple talaq is a practice mainly prevalent among India’s Muslim community

following the Hanafi Islamic school of law.

● Under the practice, a Muslim man can divorce his wife by simply uttering

‘talaq’ three times but women cannot pronounce triple talaq and are required
to move a court for getting divorce under the Sharia Act, 1937.

● Triple talaq is banned by many countries including Pakistan, Bangladesh and

Indonesia.

Historical Background:

Holy Quran, the paramount source of Islamic Jurisprudence has not ordained that the three
divorces pronounced in a single breath would have the effect of three separate divorces. To
this effect the relevant verse of Quran can be relied upon.

“A divorce is only permissible twice; after that, the parties should either hold together on
equitable terms or separate with kindness.”

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In Quran there is no trace that the ‘triple talaq’ pronounced at one occasion would be treated
as three divorces or irrevocable footing.

Hence on the basis of Quranic materials as analysed above, it may be concluded that only one
divorce in effect results from the three pronouncements at one occasion.

There is a tradition reported by Rokanah-b Abu Yazid that he gave his wife Sahalmash an
irrevocable divorce; and he conveyed it to the Messenger of Allah and said; by Allah, I have
not intended but one divorce. Then messenger of Allah asked Have you not intended but one
(Divorce)? Rokana said; By Allah, I did not intend but one divorce. The messenger of Allah
then returned her back to him. Afterwards he divorced her for second time at the time of
Hadrat Omar and third time at the time of Hadrat Osman.

It is thus, clear from the above discussion that during the Prophet’s (PBUH) time and for a
period after him, such cases of triple talaq where in divorcing husband swore to his intention
of divorcing only once, were termed as cases of single divorce and couples were reunited.

Triple Talaq: A Curse on Indian Muslim Society:

India is the home to World’s third-largest Muslim population which is governed by Sharia or
Islamic Jurisprudence and this has been the case since British colonial rule. But just before
2019 (Abolition of Triple Talaq), India’s 90 million Muslim women were frightened to face
the threat of a sudden, oral and out-of-court divorce.

There had been many cases that made headlines for men practicing triple talaq even via
instant messaging applications like WhatsApp.

According to the Census 2011 data, out of all married Muslim women 13.5% were married
even before the age of 15 and 49% were married between 14 to 19 years of age. Marriage at
such an early age, in most of the cases, decreases the possibility of acquiring education or
being financially independent.

A survey by Bharatiya Muslim Mahila Andolan revealed that 95% of divorced women
received no maintenance from their husbands. In many cases, women are not in a position to
immediately become the breadwinner and manage kids.

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One such case of a pregnant woman being thrown out of the house for not getting an abortion
added more weight to the issue.

“He (husband) verbally gave me triple talaq and I was left on the road to die”, Shafgufta Shah
said. Mother-of-two, Shafgufta became pregnant for the third time but refused to get an
abortion when her husband feared that she would deliver another daughter.

Shafgufta had written a letter seeking help from the PM Narendra Modi and sent copies to
Uttar Pradesh Chief Minister Yogi Adityanath, the National Commission for Women and as
well as the District Magistrate.

Not only that, oral divorce is the easiest and most common method of taking a divorce among
Muslims. Out of all divorced women, 65.9% were divorced orally. Recently, over text and
emails also.

The Supreme Court has likewise proclaimed that this practice is unlawful and not ensured by
Article 25 which respects the opportunity of religion. Specialists likewise opine that lone the
fundamental or indispensable highlights and parts of a religion are secured by the
Constitution. Triple talaq was not an essential component of Islam.

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 DISCUSSION
As far as Judiciary in India is concerned, it has so far barring few exceptions, tolerated the
triple divorce. In British India, as well as in independent India all the courts are declaring
triple pronouncements of divorce in one sitting as lawful and effective. The common phrase
used by courts is that talaq-e-biddat or triple pronouncements of divorce is good in law
though bad in theology.

The Bombay High Court in Sara Bai v. Rabia Bai I.L.R. (1905) 30 Bombay 537, recognized
triple divorce on irrevocable footing. In the instant case, one Haji Adam Siddique with two
witnesses approached Qazi and before him he pronounced talaq in absence of his wife.
Talaqnama was prepared by Qazi and same was duly signed by all concerned steps was taken
to handover her iddat allowance with the communication of talaq. But she managed to make
the same. Haji Adam died very soon. His divorced wife filed a suit assuming herself as wife
of Haji Adam for maintenance and residence, but the Bombay High Court refused to accept
her conception and held above referred talaq on irrevocable footing.

The Supreme Court in Shayara Bano v. Union Of India AIR (2017) 9 SCC 1 (SC), better
known as the ‘Triple Talaq Case’, gave a historical judgement which declared the practice
of Triple Talaq to be unconstitutional because of the astute and justified reasoning provided
by the majority bench Supreme Court finally abolished the regressive and immoral practice
of triple talaq.

FACTS OF THE CASE:

● The petitioner, Shayara Bano, had been married to her husband, Rizwan Ahmed, in

the age of 15 years. In 2016, he divorced her through instant triple talaq.

● Shayara Bano filed a Writ petition in the Supreme Court pleading to declare three

practices talaq-e-biddat, polygamy and nikah-halala as unconstitutional as they

violate the fundamental rights of women enshrined in Articles 14, 15, 21 and 25 of
the Indian Constitution.

● The Union of India supported the petitioner’s claim that these practices are

unconstitutional and women’s rights organisations such as Bebaak Collective and

Bhartiya Muslim Mahila Andolan.

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 ● However, the All India Muslim Personal Law Board argued that uncodified Muslim

Personal Law is not subject to constitutional judicial review and these are essential
Islamic practices protected by Article 25 of the Indian Constitution.

DECISION IN THIS CASE:

The Constitution Bench of the SC, by a 3:2 majority, set aside and declared the practice of
Triple Talaq to be unconstitutional under Article 14 with Article 13(1) of the Indian
Constitution.

The SC ruled that the practice of Talaq-e-biddat is not protected by the exception set out in
Article 25, as the Court determined that it is not essential component of the Islamic religion.

The court justified its position by stating that, while the Hanafi School practices it, is sinful in
it. Triple talaq contradicts the basic tenets of the Quran, and whatever contradicts Quranis
contradicts Shariat; thus, what is bad in theology cannot be good in law.

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 CONCLUSION
The use and status of triple talaq in India has been a subject of controversy and debate. The
debate has involved the Government and the Supreme Court of India, and is connected to the
debate about a uniform civil code (Article 44) in India. On 22 August 2017, the Supreme
Court deemed instant triple talaq unconstitutional. Three of India’s neighbouring countries-
Pakistan, Bangladesh and Sri Lanka- are among 23 countries worldwide that have banned
triple talaq.

Although the primary focus of the abolition of triple talaq was not gender justice, it will have
significant positive implications for advancing women’s rights and gender equality. It is
expected that this abolition will assist Muslim women in living a better and more secured life.

1.

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 REFERENCES

1) https://www.legalserviceindia.com/legal/article-26-triple-talaq.html
2) https://ili.ac.in/pdf/paper517.pdf
3) https://www.indiatoday.in/fyi/story/triple-talaq-muslim-women-supreme-court-
sharia-law-islam-968630-2017-03-30
4) https://lawplanet.in/shayara-bano-vs-union-of-india-case-summary-2017-scc/
#:~:text=Shayara%20Bano%20filed%20a%20Writ,25%20of%20the%20Indian
%20Constitution.
5) https://www.indialawoffices.com/legal-articles/abolition-of-triple-
talaq#:~:text=Therefore%2C%20on%2022%20August%202017,who%20fell
%20victim%20triple%2Dtalaq.
6) MOHAMMEDAN LAW BY AQIL AHMAD