TRIPLE TALAQ

Triple talaq is a form of talaq recognized by sunni muslim in india also known as
talaq-e-biddat. It allows any Muslim men to pronounce talaq by uttering talaq word
three times in one sitting or in three different sitting. It can be given in written, oral or
as in the recent times by the electronic modes. If it is pronounces in three different
sitting, there must be attempt of reconciliation before every pronouncement. Triple
talaq is bad in theology but good in law1 as held by various judgment.

Muslims in India is governed by the The Muslim Personal Law (Shariat) Application
Act, 1937 which mandates triple talaq in India. It is a pre-independence legislation
and replaced the Anglo Mohammedan law, sec 22 of which attempt to do away with
all the customs or provisions contrary to the 1937 act3. Initially, triple talaq has a legal
sanctity but over a period of time judiciary put a limitation on the practice of triple
talaq. Courts gave many judgment which restricts the triple talaq and in the latest
judgment4, supreme court held it constitutional. In Shamim Ara vs. State of U.P. &
Anr.5, court invalidate the triple talaq and held that mention of date of talaq cannot
constitute triple talaq, facts which lead to the divorce must be mentioned 6. Also The
High Court of Delhi in  Masroor Ahmed vs. State (NCT of Delhi) & Anr. 7 held that
talaq pronounced in the gist of anger is invalid and there must be attempt of
reconciliation between the parties before pronouncing of talaq. It also held that triple
talaq is valid only when reconciliation is not possible between the parties 8. Bombay
high court in Dagdu Latur vs. Rahimbi Dagdu Pathan, Ashabi9 held that a Muslim
men cannot pronounce a talaq on his will, the circumstance which lead to talaq must
be proved in the court.

The most important verdict was passed by supreme court is Shayara Bano v. Union of

1
ILR (1906) 30 Bombay 537 (539)
2
The Muslim Personal Law (Shariat) Application Act, 1937
3
Id.
4
Shayara Bano v. Union of India, (2017) 9 SCC 1
5
AIR 2002 SC 3551
6
Id.
7
 2008 (103) DRJ 137 (Del.)
8
Id.
9
 2003 (1) BomCR 740
India10. The 5 judge bench of supreme court held the triple talaq unconstitutional by
the majority of 3:2. The majority opinion was delivered by justice nariman, justice
lalit and justice kurian joseph while the minority opinion was delivered by justice
khehar and justice nazeer. Justice nariman and justice UU lalit said in their judgment
that as it is pre independence legislation, it is not outside the scope of article 13(1) 11. It
can be held void to the extent of the inconsistency with the 1937 act 12. They did not
touch the question whether personal law can be test against triple talaq. They also
rejected the argument forwarded by the Muslim personal law board that 1937 act13
only attempt to do away with the customs which are contrary with this act. In their
view, this act also enforces the Muslim law. They said that “It is manifestly arbitrary"
to allow a man to "break down (a) marriage whimsically and capriciously" 14. They
held that the practice of triple talaq is not integral and essential to the Muslim and
held to be unconstitutional.

In the dissenting opinion, justice khehar and justice nazeer held that triple talaq is a
century old practice of hanafi muslims. Although it is a sinful practice, but it is widely
practiced in the Muslim society. They said that article 14 15 cannot be read
independently, it must be read with article 25 16. They said that this is a 1400 year old
practice and is a essential part of their religion.

The judgment of justice kurian joseph disturbs the balance of the judgment. He only
checked that whether the triple talaq has a legal sanctity or not. He put reliance on the
Shamim Ara v. state of U.P. and Anr. and held that triple talaw lacks legal sanctity.
Supreme court in this landmark judgment invalidate the triple talaq.

Even after the passing of this judgment17, triple talaq is still prevalent in indian
society. There are as many as 100 case of instant talaq since this judgment 18. Union
10
(2017) 9 SCC 1
11
Indian constitution
12
The Muslim Personal Law (Shariat) Application Act, 1937
13
Id.
14
(2017) 9 SCC 1
15
Indian constitution
16
Id.
17
(2017) 9 SCC 1
18
100 cases of instant triple talaq in the country since the S .. Read more at:
government came with the ‘’Muslim Women(Protection of Rights on Marriage)
Bill’’, also known as triple talaq bill for the detterence effect.
The word must be considered as the triple talaq or talaq-e-biddat for the purpose of
this act19. This bill proposed to make triple talaq a void20 and illegal practice and also
make it punishable with imprisonment upto 3 years21 and also imposes fine22 on the
preprators. This bill also makes the provision for the maintainance for the wife and
her dependent children23. The wife herself or her close relatives can file the complaint
under this act. It also makes the act cognizable 24 and non bailable25. The bill makes it
non bailable, but magistrate on very convincing ground can grant him bail. It is
compoundable offence as per the bill26.

There are some apprehension regarding the provision that mandate any person to
complaint the case of triple talaq and also enable police officer to take the cognizable
of the offence. To address this issue, bill make the provision that only women to
whom triple talaq is pronounced and her close relative can complained about the
talaq27.

The bill passed in the lok sabha, but got stuck in the rajya sabha. As the practice is
still followed in many parts of india and the bill is stuck down in rajya sabha, the
president has to repromulgate the ordinance for the immediate relief to victims of
triple talaq.

Ravi shankar prasad, Union law minister after the passing of the bill said that “The
legislation would help in ensuring the larger Constitutional goals of gender
justice and gender equality of married Muslim women and help subserve their

http://timesofindia.indiatimes.com/articleshow/62279519.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst, TOI, Dec 28, 2017 
19
Muslim Women(Protection of Rights on Marriage) Bill
20
Sec 3 Muslim Women(Protection of Rights on Marriage) Bill
21
Sec 4 Muslim Women(Protection of Rights on Marriage) Bill
22
Id.
23
Sec 5 of Muslim Women(Protection of Rights on Marriage) Bill
24
Sec 7(a) of Muslim Women(Protection of Rights on Marriage) Bill
25
Sec 7(c) of Muslim Women(Protection of Rights on Marriage) Bill
26
Sec 7(b) of Muslim Women(Protection of Rights on Marriage) Bill
27
Sec 7(a) of Muslim Women(Protection of Rights on Marriage) Bill
fundamental rights of non-discrimination and empowerment”.