TRIPLE TALAQ IN

INDIA
BY
PAVAN GANDHI
190410119016
WHAT IS THE TRIPLE TALAQ?

 Triple Talaq is the process of divorce under

Sharia Law (Islamic law) where a husband
can divorce his wife by pronouncing ‘Talaq’
three times. This is also called oral talaq.
There are three types of divorce under
Islamic law, namely, Ahsan, Hasan and
Talaq-e-Biddat (triple talaq). While the
former two are revocable, the last one is
irrevocable. It is mainly prevalent among
India’s Muslim communities that follow the
Hanafi School of Islamic Law.
CONTINUE…
 Under this law, wifes cannot divorce
husbands by the means of triple talaq.
Women have to move a court for divorcing
her husband under the Muslim Personal Law
(Shariat) Application Act 1937. This Act was
passed to make provisions for the application
of Shariat or Islamic personal law to Muslims
in India. It can be argued that the
British colonial government passing such acts
was a part of their divide and rule policy.
LEGAL BAN ON TRIPLE TALAQ

 The Muslim Women (Protection of Rights on Marriage) Act, 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 made triple talaq illegal in India on
1 August 2019, replacing the triple talaq ordinance promulgated in
February 2019. It stipulates that instant triple talaq (talaq-e-biddah)
in any form – spoken, written, or by electronic means such as email or
SMS – is illegal and void, with up to three years in jail for the husband.
Under the new law, an aggrieved woman is entitled to demand
maintenance for her dependent children.
 The Government first introduced the Act to Parliament in 2017. MPs
from Rashtriya Janata Dal, All India Majlis-e-Ittehadul Muslimeen, Biju
Janata Dal, All India Anna Dravida Munnetra Kazhagam, Indian National
Congress and All India Muslim League opposed the bill. Several
Opposition lawmakers called for it to be sent to a select committee
for scrutiny. It was passed on 28 December 2017 by the Lok Sabha, or
lower house of the Indian Parliament, where the ruling BJP held the
majority of seats.
CONTINUE…
 In a major political win for the Modi government, the Rajya
Sabha, or upper house of Parliament, where the ruling NDA did
not have a majority, approved the bill (99–84) on 30 July 2019
after a lengthy debate.
 The bill followed a 2017 Supreme Court ruling that the practice
of instant triple talaq is unconstitutional and a divorce
pronounced by uttering talaq three times in one sitting is void
and illegal.
 Muslim triple talaq petitioner Ishrat Jahan welcomed the Bill
when it was presented. Also Arif Mohammad Khan welcomed
and appreciated the decision taken
by Government by Parliament of India.
 The triple talaq bill proposed by the previous Modi government
lapsed when an election was called and the Lok Sabha was
dissolved before the bill was sent to the Rajya Sabha for
approval.
HISTORICAL BACKGROUND
 The Muslim family affairs in India are governed by the Muslim
Personal Law (Shariat) Application Act, 1937 (Muslim Personal
Law), 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.The Shariat is open to interpretation by the ulama
(class of Muslim legal scholars). The ulama of Hanafi Sunnis
consider this form of divorce binding, provided the
pronouncement was made in front of Muslim witnesses and
later confirmed by a Sharia court. However, the ulama of
Ahl-i Hadith, Ithna Ashariyya and Musta'lian Isma'ili Shia
persuasions do not regard it as proper. Scholar Aparna Rao
states that, in 2003, there was an active debate among the
ulama.
ARGUMENTS AGAINST TRIPLE TALAQ

 It goes against the rights of equality and women’s empowerment. It

propagates the dominance of men over women.
 According to a study, 92% of Muslim women in India wanted the triple
talaq to be banned.
 It gave men the right to arbitrarily divorce their wives without any
valid reason.
 New-age technology has given birth to new modes of triple talaq such
as through skype, text messages and email.
 Many Islamic countries have outlawed this practice including
Bangladesh, Pakistan and Indonesia. There is no reason for a
democratic and secular India to continue this lopsided practice.
 It goes against the constitutional principles of gender
equality, secularism, right to life of dignity, etc. It goes against
Article 14 (Right to Equality) and Article 15(1) which states that there
shall be no discrimination against any citizen on the basis of gender,
race, etc. and this kind of talaq is biased against the interests of
women.
CONTINUE…
 The constitution of India says that it shall strive to bring a
uniform civil code for the entire country. Doing away with
triple talaq will definitely be a step closer to the constitution-
makers’ dream of having a uniform civil code for all citizens.
 However, the National Commission of Women says that this
matter cannot be linked to uniform civil code. Nevertheless, it
should be banned in order to protect the interests of Muslim
women.
 The Supreme Court has also declared that this practice is
unconstitutional and not protected by Article 25 which regards
the freedom of religion. Also in December 2016, the Allahabad
High Court had said that no personal law board was above the
constitution.
 Experts also opine that only the essential or integral features
and aspects of a religion are protected by the Constitution.
Triple talaq was not an integral feature of Islam.
 CHALLENGES IN BANNING
TRIPLE TALAQ
 Religious groups infer the banning of a traditional
practice sanctified by Sharia as interfering in the religious
aspects of minorities.
 The courts should decide two things basically:
 Whether personal law can be subject to the constitution or not
 How to view the relationship between triple talaq and Muslim
personal law.
 Past rulings:
 In the Shah Bano case in 1985, the SC granted Shah Bano,
a 62-year old woman the right to alimony from her
husband.
 But in 1986, the government passed the Muslim Women
(Protection of Rights on Divorce) Act which diluted the
positive impact created by the Shah Bano case.
CONTINUE…
 In 2001, in the Danial Latifi & Anr versus Union of
India case, the SC upheld the validity of the Shah
Bano judgement.
 In August 2017, a five-judge bench of the SC declared
the triple talaq as unconstitutional in a majority 3:2
judgement. This was the culmination of a petition
filed by Shayara Bano, whose husband of 15 years had
divorced her through a letter where he pronounced
talaq three times, to declare the divorce as void.
 The latest ruling is truly a watershed moment in
women empowerment movement in India. The court
has given progressive thoughts enshrined in the
Constitution precedence over personal law in society.
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