TRIPLE TALAQ

PROPOSAL SUBMITTED BY

NAME: GAURAV DEEP RAJAN

ROLL NO: 2018

SEMESTER: FIRST.

SESSION: 2018-2023

COURSE: B.B.A. LL.B. (Hons.)

PROPOSAL SUBMITTED TO

Mr. VIJYANT SINHA

FACULTY OF LEGAL RESEARCH AND RESEARCH

METHODOLOGY
RESEARCH PROPOSAL SUBMITTED IN PARTIAL FULLFILMENT OF THE COURSE TITLED

LEGAL RESEARCH AND RESEARCH METHODOLOGY

 AUGUST 2018

CHANAKYA NATIONAL LAW UNIVERSITY

NAYAYA NAGAR, MITHAPUR, PATNA- 800001

INTRODUCTION

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.
Under this law, wives 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.)

TENTATIVE CHAPTERIZATION

1.An Introduction

Triple talaq is a form of divorce that was practised in India, whereby a Muslim man
could legally divorce his wife by pronouncing talaq (the Arabic word for divorce) three
times. The pronouncement could be oral or written, or, in recent times, delivered by
electronic means such as telephone, SMS, email or social media. The man did not need to
cite any cause for the divorce and the wife need not have been present at the time of
pronouncement. After a period of iddat, during which it was ascertained whether the wife
is pregnant, the divorce became irrevocable. In the recommended practice, a waiting
period was required before each pronouncement of talaq, during which reconciliation
was attempted. However, it had become common to make all three pronouncements in
one sitting. While the practice was frowned upon, it was not prohibited.A divorced
woman could not remarry her divorced husband unless she first married another man, a
practice called nikah halala. Until she remarried, she retained the custody of male
toddlers and prepubescent female children. Beyond those restrictions, the children came
under the guardianship of the father.
2. A brief history and insight into the triple talaq.

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.
The shariat is open to interpretation by the ulama (class of Muslim legal scholars). The
ulama of Hanafi Sunnis considered 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, Twelver and Musta'li persuasions did not
regard it as proper. Scholar Aparna Rao states that, in 2003, there was an active debate
among the ulama.
In traditional Islamic jurisprudence, triple talaq is considered to be a particularly
disapproved, but legally valid, form of divorce.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.

3. Triple talaq and its effects on muslim marriages.

 Muslim women and girls face several challenges of safety, security, survival and dignity
in modern times like women and girls from all other communities. They are gradually
learning to cope with these challenges. The solution cannot be that of confining them to
homes for their own safety and well-being. They have aspirations like other citizens and
it is binding on both the government and the community to recognize and support their
concerns. Muslim women cannot forever live with the threat of instant oral unilateral
divorce or polygamy or post-divorce economic uncertainty. These must be resolved by
evolving a just and fair legal framework based on the principles of the Quran.
 
4. Criticisms

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 law).
On 13 May 2017, during the hearings before its final judgment, the Supreme Court
described instant triple talaq as the "worst form of marriage dissolution". It noted that the
custom is banned in the Muslim-majority countries of Saudi
Arabia, Morocco, Afghanistan and Pakistan.
On 8 December 2016, the Allahabad High Court observed in a ruling that the practice of
instant triple talaq was unconstitutional and violated the rights of Muslim women.
In March 2017, over 1 million Indian Muslims, a majority of whom were women, signed
a petition to end instant triple talaq. The petition was started by the Muslim Rashtriya
Manch, an Islamic organisation affiliated to the right wing Hindu nationalist
organisation Rashtriya Swayamsevak Sangh.
The petitioners against instant Triple talaq have given evidence showing how Instant
Triple talaq is simply an innovation that does not have much to do with Quranic beliefs.
This is supported by the interpretation of Quranic text by many Islamic scholars,
historical evidence and legal precedent.
On 10 May 2017, senior cleric Maulana Syed Shahabuddin Salafi Firdausi denounced
triple talaq and nikah halala, calling them un-Islamic practices and instruments to
oppress women.
The practice was also opposed by Hindu nationalists and Muslim liberals.

5. Triple talaq and Indian constitution

A. The Muslim Women (Protection of Rights on Divorce) Act 1986

According to this act, the husband is liable to pay alimony during the time of iddat or for
the span of three months after the divorce. If the divorced woman has no close relatives
to look after her or she is incapable of providing her own maintenance, the magistrate has
the right to order the Waqf  Board to take up the responsibility of providing support to
the woman and her children. The act shifts the responsibility of maintenance from the
husband to the relatives and the Waqf Board. The husband knows that if he does not
provide maintenance, he could still control and harass his divorced wife to beg at
different places for maintenance. The husband takes responsibility for the children till
they are two years old. After that the responsibility falls on the wife to claim maintenance
for them. The efforts by a lone woman to rightfully claim maintenance after divorce got
converted into a huge political storm and the concerns of the woman were relegated to
the background, the Quranic injunctions on gender justice notwithstanding. Since then
there has been no effort either by the various governments or by the community to revive
the process of gender-just reforms in Muslim personal law.

6. Solution

1. Implementation of Uniform Civil Code

 Article 44 of The Indian Constitution speaks about Uniform Civil Code that, “The
State shall endeavor to secure for the citizens a uniform civil code throughout the
territory of India”. Under which all the personal laws based on the scriptures and
customs of each major religious community in India will be replaced with a common
set governing every citizen.

2. Codification of Muslim Personal Laws

According to a survey by Bharatiya Muslim Mahila Andolan, an overwhelming

83.3% women felt that their family disputes could be resolved if a law based on
Quranic principles was codified and 89% wanted the government to intervene in
helping to codify Muslim personal law.

7. Conclusion.

The drafting of the bill may not meet the need of Muslim women in the true sense as
criminalizing the utterance of talaq will not give an opportunity for reconciliation and re-
joining instead and will have the adverse effect and will lead to permanent breakage of
marriage. The bill will prove to be a curse on Muslim community and is an invasion of
rights of Muslim husband’s personal Rights nor would the legislation help in rendering
Justice. The bill should be reviewed retaining the voidability of Triple Talaq in one go
and such talaq to be treated as null and void or as single Talaq and there provision should
be made for filing restitution of conjugal rights and restraining the husband from
pronouncing Talaq until a fair reconciliation and Arbitration is done to remove the
differences which task to be entrusted to Some Arbitration council who knows Shariat
law and social practices instead of criminalizing and penalizing the husband then only the
true spirit and aim of the act and preamble will come into light and the purpose will be
served.
 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