TOPIC:- STATUS OF WOMEN UNDER MUSLIM LAW IN

REFERENCE TO TRIPLE TALAQ

(FINAL DRAFT)

SUBMITTED BY

JAYESH DEEPAK
ROLL NO. 1415

5TH YEAR, 10TH SEMESTER, B.B.A.LL.B (HONS.)

SUBMITTED TO:

MR. VIJAYANT SINHA

(FACULTY OF LAW RELATING TO WOMEN AND CHILDREN)

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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 DECLARATION

I, Jayesh Deepak, do hereby affirm that this seminar paper titled “Status of Women under
Muslim Law in reference to Triple Talaq” is a bonafide investigation work submitted by me in
fulfillment of B.B.A.LL.B at Chanakya National Law University, Patna. This thesis has been
prepared under the guidance and supervision of MR. VIJAYANT SINHA This is an author‘s
novel piece of effort and all the sources have been cited and suitably accredited. I additionally
assert that no part of this thesis has been submitted elsewhere for any degree or diploma.

JAYESH DEEPAK

ROLL NO: 1415

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 CERTIFICATE

This is to verify that this thesis titled “Status of Women under Muslim Law in reference to

Triple Talaq”submitted by JAYESH DEEPAK for fulfillment of B.B.A.LL.B course at Chanakya

National Law University, Patna is the end result of bonafide investigation adequately carried on

by him under my guidance and supervision. This thesis or any part thereof has not been

submitted anywhere else for any other degree.

MR. VIJAYANT SINHA

FACULTY OF LAW

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 ACKNOWLEDGMENT

I take this occasion to convey my heartfelt gratefulness to the people who have been significant

in the conclusion of this thesis. The achievement of my thesis depends essentially on the support

and guiding principles of many people, along with my hard work.

At the outset, I would like to convey my profound gratitude to my supervisor MR. VIJAYANT

SINHA (Faculty of Law) for his colossal and valuable direction all through the course of my

thesis. Without her supervision and support, the work would not have been accomplished.

This thesis would not have been finished without the services provided by the University with

respect to accessibility of books, user-friendliness to different e-journals via internet entrance. I

would also like to convey my thanks to the CNLU library for the affluence of data therein and

library team for their support. I cannot overlook the role of my family who stood with me, helped

and motivated me to finish this thesis.

JAYESH DEEPAK

ROLL NO 1415

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 TABLE OF CONTENTS

S. NO. TITLE PG. N O.

1 DECLARATION 2

2 CERTIFICATE 3

3 ACKNOWLEDGEMENT 4

4 ABBREVIATIONS 8

5 TABLE OF CASES 5-7

6 CHAPTER I: INTRODUCTION 9-11

10
- Nature and Scope of the Problem
11
- Historical Background
12-15
7 RESEARCH DESIGN
12
- Aims & Objectives
12
- Hypothesis
12
- Literature Review
13-14
- Books/Articles/Committee Reports
15
- Research Methodology
15
- Scope and Limitations

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 15
- Mode of Citation

8 CHAPTER II: HISTORICAL: PERSONAL LAWS 16-18

- Criticisms From other countries 17

- Origin and Background 17

- Triple Talaq and the Indian Constitution 18

- Triple talaq as Statutory right 18

19-20
9 CHAPTER III: MEANING AND NATURE OF TRIPLE TALAQ
19
- Nature of Triple-Talaq
20
- Legal and religious aspects of Triple Talaq
20
- Position of Triple Talaq under Basic source of Islamic
Jurisprudence
21-24
10 CHAPTER: IV: ROLE OF INDIAN JUDICIARY
22
- Mohd. Ahmad Khan v. Shah Bano Begum
22
- Daniel Latifi v. Union of India
22
- Bai Tahira v. Ali Hussein
22
- Rashida Khatun v. SK Islam
23
- Shamim Ara v. State of UP
23
- Shayara Bano v. Union of India

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11 25-29
CHAPTER V: PERSONAL LAWS & RELIGIOUS FREEDOM IN INDIA:
SHIFTING APPROACHES, CONTINUOUS INTERVENTION
26-27
- Doctrine of Essential Religious Practice
28
- The Muslim Women (Protection of rights on marriage) Bill,
2009
29
- Triple Talaq Bill, 2017
12 30
CHAPTER VI: EFFECT OF TRIPLE TALAQ ON SOCIETY
31
- CHALLENGES AHEAD
32
- REFORMS IN MUSLIM PERSONAL LAWS
34
- STATUS OF MUSLIM WOMEN IN INDIA
13 38-39
CHAPTER VII: POSITION IN OTHER COUNTRIES
14 40
UNIFORM CIVIL CODE & MINORITY RIGHTS
18 41-46
CHAPTER VIII: SUGGESTIONS & CONCLUSION
19 47-50
BIBLIOGRAPHY
47
- Statutes/Instruments
47
- Books
48-49
- Articles/Journals
50
- Websites

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 ABBREVIATIONS

1 AIR ALL INDIA REPORTER

2 BOM. L.R.J BOMBAY LAW REPORTER JOURNAL

3 A.E.L.R. ALL ENGLAND LAW REPORTS

4 CIV. L.J. CRIMINAL LAW JOURNAL

5 CIR. CIRCUIT

6 D.B. DIVISION BENCH

7 CPC CODE OF C IVIL PROCEDURE, 1908

8 CR. P. C. CODE OF CRIMINAL PROCEDURE

9 D.M.C. DIVORCE AND MATRIMONIAL CASES

10 I.L.R. INDIAN LAW REPORTS

11 ED. EDITION

12 J.I.L.I. JOURNAL OF INDIAN LAW INSTITUTE

13 S.C.J. SUPREME COURT JOURNALS

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 14 S.C. SUPREME COURT CASES

CHAPTER I

INTRODUCTION

“It is alleged that the fatal point in Islam is the degradation of women”

- JUSTICE CHANDRACHUD
(SHAH BANO VERDICT)

Personal laws in India and especially Muslim personal law has been a major political and
controversial issue, and has been extensively debated. The issues of women rights in Muslim
personal Law is highly controversial. Specially, Muslim women rights relating to triple talaq
divorce, inheritance, maintenance has got much attention now a days. However, Indian
Constitution has guaranteed equality and freedom from discrimination based on gender or
religion, but still there are various practices which are based on heartless conservative culture.
The rates of women empowerment are in a vulnerable condition within the largest Muslim
minority. Lack of social opportunities for Muslim women is a crucial issue needing urgent
Action. It explores into the socio-economic profile of Muslim women in India in the light of
personal law and studies the constitutional validity of personal law. It concludes that minorities
in the minority i.e. Muslim women are still forced to live a secluded and submissive life.

According to the Sachar Committee1 report Muslim women are among the poorest, educationally
disenfranchised, economically vulnerable, politically marginalized group in the country.
However, the Supreme Court of India has declared the applicability of secular law over Muslims
in Shah Bano's case but still personal law is continuing itself violating constitutional injunctions
of equality and freedom from discrimination.

1
Prime Minister's High Level Committee, Rajindar Sachar, High Level Committee Report On Social, Economic,
And Educational Status Of The Muslim Community Of India, November 2006.

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Both state and fundamentalists of Islam are needed to wake up and put robust efforts to bring
Muslim women in mainstream by implementing the various laws and schemes framed for them
in a proper way. Against the backdrop of the triple talaq verdict, this paper discusses the
prudence of the top-down model of reforming personal laws. In light of the later discussion, the
paper considers the broader issue of reformation of personal laws and the manner in which it
must be carried out in a multi-religious country like India.

Nature and Scope of the problem

In India, it is particularly the personal laws that principally govern the lives of women. The rights
of women were abridged by personal laws. By Personal laws, is meant the rights given to women
by their personal religion in addition to the rights given to them by legislation. These laws may
be codified or un-codified and govern all family relationship. The existing Personal laws
promote cultural diversity but fail to provide social justice particularly equal rights for women.
Domestically, the equality principle is eroded by the continued existence of personal laws that
discriminate against women. They perpetuate women‘s subordination within the family and also
constitute discrimination between religious and ethnic groups. Clearly discriminatory on their
face, personal laws obstruct women‘s participation in political and public life, and significantly
contribute to the causes of continuing violence against women.

Though numerous laws have been made, legal machinery can play a limited role in the social and
economic emancipation of women. Legal reforms cannot be it getting rid of the gender injustice;
it may only control it to some extent. Until equal rights for women are made a reality through
social attitude and practice and until concrete alternative are found in prevention of dowry
demands in arranged marriages; until men cease to consider women as their property, there
cannot be any real change in the women‘s status.

Historical Background

Muslim family affairs in India are governed by the Muslim Personal Law (Shari at) 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

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form of diarchy 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.2

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. 3
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.

Talaq in its original sense means repudiation or rejection. Under Muslim law, it means a release
from marriage tie, eventually or immediately. Although Muslim marriage is a civil contract, the
husband enjoys special privileges over wife. Husband may divorce his wife at any time he likes
but wife cannot. Thus, the talaq has been described as ―a one-sided engine of oppression‖, in the
hands of the Muslim husband. Under Hanafi Muslim law divorce at the instance of wife is most
restrictive. It should not be overstated in this regard, since the basic principle of Muslim divorce
law is to end a marital tie to head off from future problems.

There is great need for the codification of Muslim personal Law today. It should be done as early
as possible. What is known as Muslim personal law today, was known either‘s as Anglo-
Mohammendan law during the British period or simply as Mohammendan law and was enacted
by the British. But after independence the terminology changed and the Anglo Mohammendan
law in order to wipe out its colonial stamp, came to be renamed as Muslim personal law.
However, its contents did not change. Thus changes in its terminology was a political act, not a
harbinger of Social Change as in other Muslim countries to de colonize its name is not enough,
one must de colonize its contents as well. Women are integral part of society which we can‘t
even imagine society without them as women is our mother, sister, friends etc and if we will not
2
Murshid, ‗Inheritance: Contemporary Practice – South Asia‟ (2003), P. 304.
3
Esposito & Delong-Bas, ‗Women In Muslim Family Law‟ (2001), Pp. 30–31

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help them to grow its will be soon end of all mankind as its common to hear discrimination about
women in every newspaper on average at least report on women harassment is present is this the
way we are developing its like we have became inhuman.

RESEARCH DESIGN

 AIMS & OBJECTIVES OF THE STUDY

The aim of the present paper is to crucially examine and check the existing literature and find out
gaps in the issues concerning status of Muslim Women in special reference of Triple Talaq and
to determine the adequacy of the same.

Following are the key objectives of the study:

1. To discuss brief outline, theoretical Importance and new facet of Status of Muslim women
with reference to the Triple Talaq verdict and its rising trends.
2. To analyze the domestic law and practices in order to identify those which are discriminatory
and to determine appropriate means of modifications.
3. To comment upon various judgments of the courts to analyze the current position of Muslim
Women after the Triple Talaq verdict.
4. To discuss the on-going debate on the implications of Muslim Personal Law in India and
suggests various solution to empower Muslim women.
5. To suggest plausible recommendations & Measures with respect to the present context.
 HYPOTHESIS

The present framework provides no clarity in resolving the issues concerning status of Muslim
women in India. The domestic law sets little or no precedents on the aftermath of Status of these
women after the triple Talaq verdict. The tussle between the domestic and personal laws has to
be settled, in order to resolve conflicts in this context.

 LITERATURE REVIEW

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BOOKS

1. Giriraj Shah in his book “Human Rights” published by Himalaya Publishing House,
Mumbai, 2004.

This book gives an exclusive book on women‘s rights, which are given by constitution; Human
beings are the noblest of all creations. They are endowed with some basic rights, privileges and
prerogatives which provide them dignity and honor and make their lives decent, sacred and
sacrosanct.

2. Asghar Ali compiled his book “Islam, Women, and Gender Justice” published by Gyan
Publishing House, New Delhi – 2001.

This book is a collection of articles presented in two seminars on Muslim women about
problems.. Special attention has been paid to triple divorce and polygamy; Most of the topics are
very useful and definitely contribute to the awareness about their religious and legal rights.

3. Anjani Kant wrote her book “Women and the Law” published by A.P.H Publishing
Corporation, Ansari Road, Daryaganj, New Delhi, 2008 edition.

This book includes a special study of Hindu and Muslim women in their respective personal
laws. The contents include chapter on maintenance of Indian Women. The case of Shah Bano
has been thoroughly discussed separately.

4. Shabana Fatima wrote her book „Women and Islam‟ published by Sumit Enterprises, New
Delhi 2001 edition.

This book offers a critical perspective on the social status of woman as described in the Qur‘an
and as defined by Islamic Jurisprudence. This undistorted straight forward presentation of the
facts will reveal that millions of Muslims females under rigid and unmovable Islamic laws have
been deprived of their inalienable rights and driven into seclusion for many countries.

ARTICLES

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1. Triple Talaq: Predomination Over Muslim Women by Radhika Belapurkar (2014)

In this 21st century, this has had a great deal of advancement in technology, makes
communication a lot easier. This however, has become a disadvantage to Muslim women as the
men to divorce their wife have misused these technologies.

2. The Concept of Secularism Vis- A - Vis Uniform Civil Code – With Special Reference To
Marriage And Divorce In Islamic Law – A Critic By A. Nirmal Singh Heera.

To perform the second marriage in Islam, the procedure followed in Pakistan can be followed.
where to enter into first marriage, the husband/groom has to prove that the first wife is unable to
carry out the duties of a wife and he has to prove that he is potent to satisfy the second wife and
has to assure that the equal rights and justice can be provided by him to both the wives. Further
permission of legal wife has to be obtained for the second marriage. To follow the above
mentioned procedure, an arbitrator has to be appointed (namely Kazi) who will hold an inquiry
and during the enquiry he has to consider the following circumstances apart from others.

3. Triple Talaq: Unconstitutional and Arbitrary By Nancy Jain (2003).

Marriage is a very sacred relationship and it should be dissolved in very sacrosanct manner
irrespective of religion but this sinful practice of Talaq-ul-Biddat violates the basic human rights
which are enshrined to each and every human. This practice makes Muslim men superior and
Muslim women inferior. This is totally being exercised at the whims and fancies of Muslim men.

COMMITTEE REPORTS

1. SACHAR COMMITTEE

A High level Committee, constituted under the Chairmanship of justice (Retired) Rajinder
Sachar to gather data/ information for preparation of a comprehensive report on the social,
economic and educational status of the Muslim community of India and status of Muslim
Women submitted its report (popularly known as Sachar Committee Report) on the 17th
November, 2006.

2. VERMA COMMITTEE

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Justice Verma Committee was constituted to recommend amendments to the criminal law so as
to provide quicker trial and enhanced of committing sexual assault against women. The
committee submitted its report on 23rd January 2013. ―Women are the companion of man, gifted
with equal mental capacities. She has the right to participate in the minuets details in the
activities of man, and she has an equal right of freedom and liberty with him. By sheer force of a
vicious custom, even the most ignorant and worthless men have been enjoying a superiority over
women which they do not deserve and ought not to have. Many of our movements stop half way
because of the condition of women.‖ (Mahatma Gandhi)

A part of the Verma Committee Report states that:

‗In fact the Preamble to the Constitution guarantees social, economic and political justice which
in the view of the Committee, would include gender justice, liberty of thought, expression,
belief, faith and worship; equality of opportunity that would again reinforce the theory of
equality; while fraternity enjoins citizens to treat each other with respect and dignity, regardless
of the gender.‖

 RESEARCH METHODOLOGY

The approach used by researcher to complete the research work is doctrinal & analytical in
nature. The research material is collected from the primary and secondary sources. The data‘s are
composed from legal and non-legal sources like international conventions/treaties, statute, books
of legal experts, law journals, law reports, internet references, newspapers, and opinions of
research scholars, academicians and varied specialists who are proficient in this subject are used
as an earnest assurance to this work.

 SCOPE AND LIMITATION

As the subject matter is a burning topic and is still at a developing stage, as a result there is
tremendous paucity of material in this region. While this examination paper centers principally
around the status of Muslim women and Triple Talaq judgment. Case laws and articles chiefly
spread global and national writers.

 MODE OF CITATION

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The Author of the present thesis has utilized and adopted Bluebook 20th Edition method of
citation all through this study.

CHAPTER II
HISTORICAL BACKGROUND: PERSONAL LAWS

Most people believe that we do not have common civil laws in this country. The reality is, all
civil laws are common, except one law, namely the personal law which varies with the religious
groups. The personal law relates to marriage, divorce, succession and inheritance, maintenance,
custody of children and adoption. By tradition, the personal law is treated as religious, though
religion has nothing to do with it. Personal laws have always been manipulated to preserve
traditional male privileges by institutionalizing discriminatory characteristics and gender-unequal
interpretations of major religious traditions. Thus, all personal laws, whether based on Muslim,
Jewish, or Hindu laws, constructed through male-centric readings of sacred texts and traditions,
which heavily discriminate women in familial matters such as marriage and divorce.

They are inconsistent with the egalitarian principles in CEDAW (Convention on Elimination of
All forms of Discrimination Against Women, 1979) and also the Indian Constitution, which
prohibits the State from discriminating against women as a class. In case of Triple Talaq issue,
neither does the Quran sanction this form of divorce nor was it legally held permissible by the
Constitution. Such a practice violates the fundamental principles of gender justice, gender equity,
good conscience and the dignity of women strongly enunciated in Islam. 4 But on the issue of
triple talaq the court had reserved its right to pronounce on the matter because it viewed the issue
as one concerning fundamental rights and not one of legislation.5 Their fight is not about the
desire to remain married; the protest is against gross inequality- the fight is for basic dignity.
There is no doubt that all personal laws have to be just and equitable to both men and women
and, hence, the good from all personal laws has to be accepted and the bad to be discarded.
Hence the uniform code, if and when enacted, will have to be a different one from the personal
laws of all religious communities. It will have to be framed by consensus among all the religious

4
B.R.Sharma & Dr Harish – Social Welfare Journal, Vol. 50, No 11, 2004.
5
Lalita Dhar Parihar – Women & Law, Eastern Book Company, Lucknow (2009)

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groups and will have to conform to the norms of modern values of freedom, equality, rationality,
justice and humanism, for both men and women.6

CRITICISMS FROM OTHER COUNTRIES

Needless to say talaq-i-bidat has devastated the lives of many women and children. Deprived of
any opportunity for settlement, this mode of divorce has been subject to criticism in several
Muslim countries and has brought about reform through codification. Countries like Turkey,
Tunisia, Syria, Egypt, Morocco, Iran, Iraq, Malaysia, Indonesia and Pakistan have either
reformed the law completely or brought about legally stringent preventive measures in this area.
If Muslim countries can bring about reform in family laws India must follow suit. In the words of
Justice Hidayatullah: ―If the lead is coming from Muslim countries, it is hoped that in the course
of time the same measures will be applied in India also.‖7

BACKGROUND

1. The issue has been making news since a Muslim organization, Bharatiya Muslim Mahila
Andolan (BMMA), launched a campaign to ban triple talaq and "nikah halala" - a practice
where divorced women have to undergo second marriage to retain the first marriage.8
2. In 2015, Shayara Bano, a resident of Uttarakhand, filed a petition in the Supreme Court
seeking a ban on the practice after her husband ended 15-year marriage by sending a letter
pronouncing the word talaq thrice. Her petition seeks the Supreme Court to declare talaq-e-
bidat, polygamy and nikah halala illegal and unconstitutional on the grounds that they violate
the rights guaranteed by the Constitution under Articles 14, 15, 21 and 25.9
3. In 2015 only, the SC registered a suo motu public interest litigation (PIL) petition titled ‗In
Re: Muslim Women‘s Quest for Equality‘ to examine if arbitrary divorce, polygamy and
nikah halala violate women's dignity. Several other women lined up with their petitions over
the following months. Women cannot pronounce triple talaq and are required to move a court
for getting divorce under the Sharia Act, 1937.

6
Monica Chawla – Gender Justice : Women And Law In India, Published By Deep And Deep Publications Pvt. Ltd.
New Delhi (2010)
7
Thakur, Pradeep (23 January 2017). "Triple Talaq: Law Panel Studies Practices Of Muslim Nations". The Times Of
India.
8
Mukhopadhyay, Construction Of Gender Identity (1994), P. 61.
9
Murshid, Inheritance: Contemporary Practice – South Asia (2003), P. 304.

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 TRIPLE TALAQ AND THE INDIAN CONSTITUTION

Article 25 of the Constitution guarantees religious freedom as Freedom of Practice and

Propagation of Religion. Like all other Fundamental Rights, it is subject to restrictions and does
not protect religious practices that can negatively affect the welfare of citizens. 10 Hence, Article
25 is overridden by Article 14, which guarantees the Right to Equality as triple talaq denies a
Muslim woman‘s equality before the law. Article 25 is also subject to Article 15 (1) which states
that the State ―shall not discriminate against any citizen on grounds only of religion, race, caste,
sex…‖ Since triple talaq does not work in the favour of women, it violates Article 15 (1) of the
Constitution. However, section 2 of the Muslim Personal Law (Shariat) Application Act of 1937
recognises triple talaq as a statutory right, bringing it under the ambit of Article 13 of the
Constitution. Article 13 defines 'law' and says that all laws, framed before or after the
Constitution, shall not be violative of the fundamental rights.11

TRIPLE TALAQ AS A STATUTORY RIGHT

Section 2 of the Muslim Personal Law (Shariat) Application Act of 1937 has already recognised
triple talaq as a statutory right.12 Therefore, Instant talaq was no longer a personal law to remain
free from the rigours of the fundamental rights as it comes under the ambit of Article 13 of the
Constitution. Article 13 mandates that any law, framed before or after the Constitution, should
not be violative of the fundamental rights.13

Among Muslims, it seems the triple talaq provision has pushed up the share of female divorcees
to 5 per 100 compared to 2-3 per thousand for Hindus, Sikhs and Jains according to freshly
released Census 2011 data. A complex web of religious and social factors is responsible for these
trends, which are similar to those discovered in the previous Census. Although divorce is legally

10
Anjani Kant - Women And The Law, Published By A.P.H Publishing, New Delhi, 2008.
11
Mohammed Siddique Patel. "The Different Methods Of Islamic Separation – Part 2: The Different Types Of
Talaq". Www.Familylaw.Co.Uk. Retrieved 29 May 2017.
12
Frieda Hauswirth – ―Purdah: The Status Of Women, Kegan Paul, Trench, Trubner And Co. Ltd, London, 1932.
13
Vara Lakshmi Janapathy – Women Key To Successful Democracy, Kalpaz Publications, Delhi (2008).

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allowed for Hindus, it may still carry social stigma. This could be the reason why the separation
rate for Hindus (unlike Muslims) was 5.5 per thousand married people, while the divorce rate
was pegged at just 1.8 per thousand.

CHAPTER III

MEANING AND NATURE OF TRIPLE-TALAQ

Triple-Talaq is a form of talaq-ul-bid‘at in which, the husband may pronounce the three formulae
at one time, and it is irrelevant that whether the wife is in state of tuhr or not. It is denoted in
Arabic as Mugallazah, means very hard-divorce which is most disapproved and which does not
conform to Talak-us-sunnat. The separation then effects definitely after the woman has fulfilled
her ‗iddat‘ or period of probation. Origin of Triple-Talaq According to Asghar Ali Engineer, the
Islamic Shariah which was formulated more than hundred years after the death of the prophet and
had evolved under complex influences of various civilizations and took away what was given to
women by the Prophet and the Quran the issue of triple divorce in one sitting illustrates this very
well.

According to most of the jurists this divorce should not be given effect to as it‘s against the
principles of both the Quran and the Prophet of Islam. Abdur Rahim is more pungent when he
says ―I may remark that interpretation of the law of divorce by jurists especially of the Hanafi
School is one flagrant instance where, because of literal adherence to mere words and certain
tendencies toward subtleties they have reached a result in direct antagonism to the admitted
policy of law in subject.14 Such talaq is lawful, although sinful in Hanafi law; but in Ithna, Ashari
and Fatimi law it is not permissible. According to Tyabji, by a deplorable development of the
Hanafi law the sinful and the most abominable forms have become the most common for „men
have always molded the law of marriage so as to be most agreeable to them.15

NATURE OF TRIPLE-TALAQ

There is a great controversy regarding the effect of triple pronouncement of the divorce at one
and the same time. The difference in the opinion of jurists is due to the difference in their

14
Abdul Rahim , Principles Of Muhammadan Jurisprudence (All-Pakistan Legal Decision, Lahore, 1958).
15
Faiz Badrudin Tyabji, Muslim Law 163 (N.M.Tripathi Ltd Bombay) 4th Edition 1968).

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interpretation and application of the law. One class of the jurists is of the opinion that no
leniency is to be shown in the application of laws so that people should not take undue advantage
on that account. Abu Hanifa and Malik, therefore, hold the three repetitions of divorce to be
final. The other jurists explained that Allah wants to treat people leniently so that they may not
be put to hardship, and also to minimize the chances of separation. Hence, they hold three
repetitions to amount to one only. Ibn Rushd has explained that Islam believes in golden mean.16
There is great controversy regarding the effect of triple divorce at one and the same time. Under
the most of the classical schools of Sunni Islamic Jurisprudence there is no material difference
regarding the effect of ‗Triple Divorce‘ in substance, however, there is some slight difference
only in respect of procedure. More or less same view is held by the Hambali School. Maliki
differ in their view in the sense that they make a distinction between various expression used in
the pronouncement of divorce. The only progressive group is the Ahl-ehadis sect who accepts
three divorces at a single sitting as one only.

LEGAL AND RELIGIOUS ASPECT OF ‘TRIPLE-TALAQ’

In Islam, law cannot be dealt with as a separate aspect from religion. J. Mahmood in Govind
Dayal v. Inayatullah17 held, ―it is to be remembered the Hindu and Mohammedan Laws are so
intimately connected with religion that they cannot readily be served from each other.‖ The
above judgment is totally applicable in the cased of ―TripleTalaq‖, either the three
pronouncement should be treated as one revocable divorce or three divorces. For this problem
both legal and religious aspect are the same and the two aspect only deal with the problem
whether three divorces in single breath should be taken as one or three.

POSITION OF TRIPLE-TALAQ UNDER BASIC SOURCE OF ISLAMIC JURISPRUDENCE

When the triple divorce is seen in the light of the four basic sources of Islamic jurisprudence, we
see that a principle to become a law has to be supported by the Quran, Hadith, Ijma, and Qiyas.
If the solution of the problem is given in the Quran it is the final ruling of sharia, if there is no
clear exposition of it in Quran we examine the traditions of Prophet (PBUH), and if the solution
is there it must be taken as rule of sharia. If the problem finds no solution in either of those, we
16
K.N.Ahmad, Muslim Law Of Divorce 85 (Kitab Bhawan, New Delhi, 1978).
17
Govind Dayal V. Inayatullah, (1895) 7 All 775, 781; Furqan Ahmed, Triple Talaq: An Analytical Study With
Emphasis On Socio-Legal Aspect 86 (Regency Publication, New Delhi, 1994).

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refer to general consensus of opinion or Ijma and if the problem has been solved by Ijma it will
also become rule of Islamic Law.

CHAPTER IV

ROLE OF INDIAN JUDICIARY

The view of judiciary on the subject of triple divorce has to be analyzed critically so as to
determine how the judiciary has examined the controversy of triple-talaq prevalent in the Muslim
world. ‗Triple Divorce‘ is recognized and enforced by Indian Judiciary from inception, as early
as in 1905 in the case of Sara Bai v. Rabia Bai18 the Bombay High Court recognized „triple
divorce‟ on irrevocable footing. Further the Privy Council also in the case of Saiyid Rashid
Ahmad v. (Mst) Anisa Khatun19 recognized „triple divorce‟ pronounced at one time as validly
effective. In Ahmad Giri v. Begha20, the court for the first time counted the role of intention as
very important factor in determining the effectiveness of the divorce. However, the court refused
to bring about any change in existing form of talaq-ul-biddat: The basic reason for this attitude of
the judiciary could be due to the fact that judiciary in British India believed that the Muslims in
India have faith that there law is of divine origin, therefore is infallible, immutable and
unchallengeable.

There was reluctance among the judiciary on the account that a decision should not hurt the
feeling of the general Muslim. In spite of realizing the deficiency they could not contribute
meaningfully. But later on a change in trend can be seen in the attitude of the judiciary. Through
the study of true Islamic law it was contradicted that the law of divorce in Islam gave arbitrary
and whimsical power to husband to divorce his wife. As it has been already mentioned that the
true Islamic philosophy of ‗Talaq‘ as enunciated in Quran reveals that there is no scope of
arbitrary and easy divorce in Islam. Thousands of Muslim women file petition before the
magistrate courts for enforcement of their rights under section 125 of CrPC (Criminal Procedure
Code) for maintenance or Muslim women (protection of Rights upon Divorce) Act, 1986 and
Domestic Violence Act, 2005.

18
Sara Bai V. Rabia Bai , 3 Ilr (1905) 30 Bom 537
19
Saiyid Rashid Ahmad V. (Mst) Anisa Khatun , 44 Air 1932 Pc 25
20
Ahmad Giri V. Begha , 45 Air 1955 J&K 1

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 MOHD. AHMAD KHAN V. SHAH BANO BEGUM21

In instant case issue was that, up to what extent of Muslim husband‘s liability to maintain his
divorced wife under Section 125 of the Cr.P.C 1973? In instant case court went into the details of
various authorities and translation of the verses of the holy Quran in support of the view that a
Muslim Woman who has been divorced by her husband has all right to be maintained even after
the period of Iddat. Further court upheld that provision of the maintenance under section 125 of
the Cr.P.C is not dependent on the religion of the spouses. It is a secular law applicable to all
irrespective of the religion. Therefore, the judgment evoked unprecedented debate and
controversy on the Muslim woman‘s rights to claim maintenance from the husband after divorce.
It ultimately led to the enactment of the Muslim women (Protection of rights on Divorce) Act
1986.

 DANIAL LATIFI V. UNION OF INDIA22

In this case constitutional validity of the Muslim Women (protection of rights on Divorced) Act
1986 was challenged on the ground that it infringed article 14, 15 and 21 of the Indian
constitution. The court remarked that the ―legislature does not intend to enact unconstitutional
laws‖ but that per se is no ground for upholding an Act as Constitutional, through its un
convincing interpretation, Court imposed a seal of the constitutional validity of the statute.

 BAI TAHIRA V. ALI HUSSEIN23

Supreme Court in this case upheld that, the payment of trifling amounts of mehr to a divorced
Muslim woman is no substitute for the maintenance.

 RASHIDA KHATUN V. SK ISLAM24

21
Mohd. Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945
22
DanialLatif V. Union of India (2001) 6 SCALE 537.
23
Bai Tahira v. Ali Hussein AIR 1979 SC 362
24
RashidaKhatun V. SK islam AIR 2005 Ori 56

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Issue can an assurance to marry be equated to an acceptance to marry so ad to confer status of
legal marriage?

The parties to the proceeding are Mohammedans belonging to the Islamic faith and are governed
but their personal law. In instant case as to the validity of the marriage, it was argued that in a
muslim marriage no rituals and functions are necessary and the muslim marriage being a civil
contract, consent of respondent to marry the petitioner and thereafter cohabitation with her was
sufficient to prove her status as his wife. Therefore, court upheld that there was no acceptance of
the offer to marry, but there was only an assurance to marry in the future and therefore mere
cohabitation with such of assurance does not constitute the factum of marriage.11

 SHAMIM ARA V. STATE OF UTTAR PRADESH25

In instant case Court held that, Talaq to be effective, has to be explicitly pronounced. Further
court held that, a mere plea taken in the written statement of a divorce having been pronounced
sometimes in the past cannot by itself be treated as effectuating talaq on the date of the delivery.
Hence, judgement seeks to provide some norms and parameters within which the husband can
pronounce a talaq. The very concept and right of unilateral triple talaq has however being
assailed. Hence, from the above cases it becomes abundantly clear that court had played a very
vital role for the protection of the women‘s rights under Muslim personal law.

 SHAYARA BANO V. UNION OF INDIA26

In Shayara Bano v. Union of India ('Shayara Bano'), the Supreme Court of India ('SC')
pronounced a verdict which set aside the practice of instant triple talaq or talaqe-biddat which
had been oft exploited by Muslim husbands to severe marital ties with their wives
instantaneously and irrevocably. The verdict received huge applause, particularly from women's
rights groups, on account of it being perceived as a decisive step towards attaining a gender just

25
Shamim Ara v. State of Uttar Pradesh (2002) 7 SCALE 183.
26
Shayara Bano v. Union of India, (2017) 9 SCC 1.

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society.27 Another notable point, though only of symbolic value, is that the bench that
pronounced the judgment was constituted of judges of varied religious faiths.28

Although, the Court's limited concern in the case was whether triple talaq was constitutional and
protected under the ambit of personal laws, its order has equally serious implications on other
issues, such as the reformation of personal laws, and more importantly, the manner in which such
reform must be brought about.

These issues, which are incidentally or directly affected by the triple talaq judgment, become
increasingly pressing and sensitive when used politically. For example, in this case, drawing
legitimacy from the SC's verdict, the present day Central Government, which is blamed by some
commentators to have an anti- Muslim stance, has introduced a Bill who criminalizes the said
practice and seeks to make it punishable by imprisonment extending up to three years and fine.

On one hand, this act of government has been perceived by some as an unjust case of regulation
of private affairs of a group of its citizens by the government, in this case being the Sunni
Muslims belonging to the Hanafi sect.29 On the other hand, others have suggested that if the
government was truly concerned of the well-being of Muslim women, then it would have made
some provision in the said Bill for arbitration or reconciliation giving the Muslim women, who
are the real victims of this practice, greater say in the matter.30

Against the backdrop of the triple talaq verdict, this paper discusses the prudence of the top-
down model of reforming personal laws. To do so, it first provides a brief summary of the
judgment so as to highlight the approaches of different judgments forming part of the verdict. It

27
The Wire, Supreme Court's Triple Talaq Order Welcomed By Activists, Muslim Personal Board 2017.
28
The Bench comprised of J.S. Khehar (at that time Chief Justice of India), Kurian Joseph, Rohintan Nariman, U.U.
Lalit, and S. Abdul Nazeer, JJ belonging to Sikh, Christian, Parsi, Hindu and Muslim faiths respectively. Despite
this plurality representing Bench, the absence of a female justice is clearly evident.
29
This observation becomes more important because at the same time a nine-judge bench of the Supreme Court was
hearing the case on whether right to privacy is a Fundamental Right under the Indian Constitution. Interestingly, the
question was answered in the affirmative by the Supreme Court bench, declaring right to privacy to be a
fundamental right. See Justice KS Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 641.
30
The Muslim Women (Protection of Rights on Marriage) Bill, 2017, 247 of 2017, §4. (The Bill was successfully
passed in the Lower House of the Parliament, Lok Sabha but was defeated in the Upper House, Rajya Sabha).

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then traces the jurisprudence developed by the Indian courts with respect to personal laws and
right to religious freedom.31

CHAPTER V
PERSONAL LAW AND RELIGIOUS FREEDOM IN INDIA: SHIFTING APPROACHES, CONTINUOUS
INTERVENTION

Commencing from the constitution-making process, the issue of personal laws in the country has
been a major site of strife.32 In the Constituent Assembly, furious debates took place about
whether independent India should continue with the practice of religion specific personal laws
for different religious groups devised by the colonial masters or whether this system should be
done away with and replaced by a Uniform Civil Code.33

Caught in a deadlock, the constitutional architects devised a pragmatic strategy. On one hand,
they accepted the practice of governing different religious groups in accordance with their
personal laws. As a result, one can find in the Indian Constitution, provisions which accord
group rights equal legitimacy as individual rights.34 On the other hand, the constitution makers
not only provided for strong individual rights but also placed the ideal of uniformity as a
directive principle to be pursued by the future generations. Such an arrangement was made in
order to ensure balance between individual rights and group rights, with an aim to foster a strong
national identity.35 Although such an arrangement is appreciable as it truly reflects India's unique
pluralistic tradition and multicultural ethos, at times it has led to serious contestations,

31
Flavia Agnes, The Politics behind Criminalizing Triple Talaq, 53 (1) Economic and Political Weekly (January 6,
2018).
32
Subrata Mitra & Alexander Fischer, Sacred Laws And The Secular State: An Analytical Narrative Of The
Controversy Over Personal Laws In India, 1(3) India Review (2002).
33
Constituent Assembly Debates, Vol. Vii, November 28, 1948 Speech By Lokanath Mishra 175; Constituent
Assembly Debates, Vol. Vii, December 1, 1948 Speech By C. Subramaniam.
34
The Constitution Of India, 1950, Art.25-30.
35
Peter Ronald De Souza, Politics Of The Uniform Civil Code In India, 50(48) Economic And Political Weekly
(November 28, 2015).

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particularly between individual claims to equality and the right to religious freedom of different
religious groups.36 In particular, it has rendered the task of judges daunting since such disputes
are brought forth in courts for final settlement in accordance with constitutional principles.
Therefore, in order to deal with them, the courts in India have been compelled to adopt varied
approaches.

DOCTRINE OF ESSENTIAL RELIGIOUS PRACTICE: CONTINUOUS INTERVENTIONS IN THE

RELIGIOUS DOMAIN

Writing about the role of courts in regulating religion in a secular constitutional setup, Pratap
Bhanu Mehta makes an important observation. He remarks,

"[courts] have to determine whether or not a policy places a substantial

burden on the free exercise of religion. This might require the court to have not
just a clear definition of religion but also to determine whether a particular
practice counts as falling under that definition."

This remark is as much applicable to Indian courts, particularly the SC, as to courts in other legal
systems, such as US and Germany.37 However, what is unusual about Indian SC is its activism in
shaping religion as per the understanding of judges or the State, rather than accepting it as
practised by the believers.38 This has, at times, led to serious rather controversial outcomes
primarily because of two reasons.

First, Indian religions, particularly Hinduism and Islam, do not in sensu stricto fit into the
Western meaning of religion, and thus, defining their meaning is a task next to impossible. This
is so because these religions have numerous schools of thoughts and interpretations. Second,
such judicial activism has denied self-identification to certain religious sects and groups.39

36
Archana Parashar, ‗Gender Inequality And Religious Personal Laws In India‟, 14(2) Brown Journal Of World
Affairs 2 (2008).
37
Gerhard Robbers, Religious Freedom In Germany, 2001(2) Brigham Young University Law Review 643 (2001).
38
Ronojoy Sen, Secularism And Religious Freedom In The Oxford Handbook Of The Indian Constitution 886 (1st
Ed., 2016)
39
Farrah Ahmed, Religious Freedom Under The Personal Law System 111(2016).

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Although, the Court has used this practice to decide various category of cases falling within the
domain of right to religious freedom,40 but as our purpose here is to highlight the courts'
influence in shaping religion, we concentrate on cases that specifically deal with this very aspect.

The first case wherein the SC made use of this doctrine was Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri ShirurMutt ('Shirur Mutt').
Although the Court upheld the major portion of the impugned Act in this case,41 but what is of
interest for the purposes of this paper is the way in which the Court decided to interpret the term
'religion'.
Instead, drawing from the Australian High Court's decision in Adelaide Co of Jehovah's
Witnesses Inc. v. Commonwealth,42 the Court favoured the term being defined as:

"A religion undoubtedly has its basis in a system of beliefs or doctrines which
are regarded by those who profess that religion as conducive to their spiritual
well-being, but it would not be correct to say that religion is nothing else but a
doctrine or belief. A religion may not only lay down a code of ethical rules for
its followers to accept, it might prescribe rituals and observances, ceremonies
and modes of worships which are regarded as integral parts of religion...”

At this juncture, it is necessary to mention that such a broad definition of the term 'religion'
thereby including rituals and ceremonies as integral components to reach a holistic understanding
of religion given by the SC was different from that given by the Bombay High Court in a prior
case, wherein the High Court narrowly interpreted the term as "whatever binds a man to his own
conscience and whatever moral and ethical principles regulate the lives of men, that alone can
constitute religion as understood in the [Indian] Constitution.‖

By using this definition in the Shirur Mutt case, the SC did several things.

First, it clarified that the protection under Articles 25 and 26 was not confined to matters of
doctrine or belief only but extended to acts done in pursuance of religion. Therefore, it contained
guarantees for rituals, observances, ceremonies, and modes of worship. Second, it cleared the air

40
Commissioner, Hindu Religious Endowments, Madras V. Sri Lakshimindra Thirtha Swamiar Of Sri Shirur Mutt,
Air 1954 Sc 282 ('Shirur Mutt').
41
Rajeev Dhavan, Religious Freedom In India, 35(1) The American Journal Of Comparative Law 1970.
42
Adelaide Co of Jehovah's Witnesses Inc. v. Commonwealth, (1943) 67 CLR 116.

27 | P a g e
in relation to the limits of autonomy which was granted to religious denominations to decide
which religious practice was essential for them.43 Third, although the judgment gave a wide
definition of religion so as to include rituals and practices, and at the same time it sanctioned an
elaborate regulatory regime for religious institutions. In doing so, it paved the path for the SC to
decide which practice was essential to the religion in question, thereby leading judges to enter
into a less familiar territory.

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

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 makes 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:

1. The married woman (against whom talaq has been declared), or

2. 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

43
Ratilal Panachand v. State of Bombay, ILR 1953 Bom 1187.

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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.

TRIPLE TALAQ BILL, 2017

The Muslim Women (Protection of Rights on Marriage) Bill, 2017, was introduced in the
Parliament by the Central government on 28 December 2017 and passed on the very same day.
The Bill defines talaq as talaq-e-biddat, Instant triple talaq or any other form of similar talaq
pronounced by the Muslim man dissolving marriage irrevocably. It declares all such form of
talaq void i.e. not enforceable by the law.44

Chapter II of the Bill deals with offence and penalty. Section 4 of the Bill sanction the practice
of triple talaq and whoever pronounces triple talaq upon his wife shall be punished with
imprisonment which may extent up to 3 years.

Chapter III of the Bill deals with the allowances and Custody of minor children‘s. A Muslim
woman is entitled to seek subsistence allowance from her husband. This provision of the bill
applies to women and her dependent children‘s. Moreover, the Muslim women against whom
talaq has been pronounced can seek the custody of minor children.

Despite of setting aside the practice of triple talaq by honorable Supreme Court and sureness of
All India Muslim Personal Law board, there have been cases reported in several parts of the
country on divorce by talaq-e-biddat. As reported illegalizing triple talaq is not working as

44
Section 3 of The Muslim Women (Protection of Rights on Marriage) Bill, 2017 - Any pronouncement of talaq by
a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever,
shall be void and illegal.

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Muslim men doesn‘t seems respecting the decision of the court and arbitrary and still with selfish
moves they are divorcing their wives. As suggested by the Supreme Court that central
government should make law on triple talaq within 6 months after the Judgement of Shayara
Bano case to penalize the offenders.

CHAPTER VI
EFFECT OF TRIPLE-TALAQ ON SOCIETY

In Islam marriage has been regarded as an important function which an ideal Muslim whether
male or female should perform firstly in order to save the society from unchastity and to build up
a healthy society.45 This practice of talaq has deleterious effect on women; breaking of a
marriage contract has emotional and financial concerns. Often it is not interest of women, which
are at stake, but those of their children as well.46 The trauma of triple-talaq is rife in the reality of
women. For example Sameera, a resident of Doungri, married a Moulana in 2001. When she fell
ill after her marriage and was advised to go to a specialist, her husband was reluctant to spend
money on her medical expenses and refused to take her back. A month later, he called from
Lucknow and pronounced triple-talaq on the phone.47 In another situation, Amira was refused
entry into the house along with her children by her husband on returning from visit to her mother
house. Her husband claimed he had divorced her by pronouncing triple-talaq, while Amira did
not even know of it.

45
Seema Durray, ―Muslim Law of Divorce in India: A legal Reflection‖, in Imtiaz Ahmad (ed.) Divorce and
Remarriage among Muslim 397 (Manohar, New Delhi, 2003).
46
Manoj Nair, ―Two Women recall triple Talaq trauma‟‖, Mid Day, July 21, 2004.
47
In this case Nazma Bibi‘s husband divorced her in May 2004, following a quarrel in an inebriated condition. Later
her husband regretted his decision and the couple continued to stay together. However, village elders objected to
their living together after the Talaq. The couple went to the local Maulvi and obtained a ‗fatwa‘ nullifying the
divorce. This was not accepted to them who physically assaulted the couple.

30 | P a g e
Another is the high profile case of Najma Bibi from Orissa, where the husband divorced his wife
in inebriated condition only to regret it later, brought to the forefront the regrettable
consequences of the triple-talaq practice. It has ceased to be a way life, a guiding source and an
inspiration. This is because we have neglected our prime duty to learn, explore and acquire
religious knowledge.

But to this distortion of the true Islamic law of divorce has now come a refreshing fatwa from
some Indian theologians: If a man who has pronounced a triple-talaq say he did it either in
ignorance of law or merely to put emphasis on his words, his marriage remain intact until the
expiry of his wife‘s iddat- during this period he can unilaterally revoke the talaq, if he has not
done so within that time, any time later he can marry her with her consent.

CHALLENGES AHEAD

There are clearly three streams of people who work in the social arena amongst the community.
One, those who believe in the revival of the pure form of religion apply everything in letter and
spirit and spread the message as "only true philosophy" towards emancipation. This group is
clearly with the present status quo. Two, those who believe in the necessity for some changes but
having taken a path of least resistance, being largely dependent on those struggling for a
progressive interpretation of texts, sometimes make compromises with limited achievements.

Three, those who owe allegiance to fundamental human values and gender sensitivity and
demand expansion of space and freedom for women and the oppressed, create pressure on the
"interpretationists" to get aligned with these universal values. The second and third group can
work complementary to each other to create a pressure group on policymakers, and this divide
should not be seen as a weakness but strength. Every religious society and community
worldwide has inner contradictions and struggles between people of different opin ions, and
Muslims although perceived by many as a homogeneous community are not an exception to the
rule of diversity.

There has always been a synthesis of various opinions worldwide, and accordingly the scenarios
are to be seen in the Indian context as well. Hence we see different shades of organizational
philosophies ranging between the above positions. We need to, very clearly, make a choice in the

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Indian context, which is not simple, because of the fact that Islam is a religion that has spread
worldwide, and there are global influences working as well. After the 1986 Shah Bano case, the
1992 Babri episode and Gujarat riots in 2002, the Muslim community started experiencing a
huge sense of insecurity, and this has affected the progressive agenda of women's groups and
Muslim organisations. After Gujarat, the priorities of community and Muslim women changed,
from laws to survival. In my survey in 2003, one of the women asked "kanoon ka hak to chahiye
magar samaaj nahi bachega to kya karenge kanoon lekar?" (We want to have laws, but if the
community will not survive what will we do with the laws?).

The current international scenario has created suspicion and an envi ronment of alienation of
Muslims, and the local political parties are also taking advantage of the same in creating anti-
Muslim sentiments. This has also created a sense of insecurity amongst the Muslim masses, and
these insecure masses are easy for the fundamentalists to manipulate. Thus, the issue of justice
and progressive laws for Muslim women is largely dependent upon the state of Hindu-Muslim
relations and upon the status of the overall development of the community.

Progressive movements must align their actions to provide re forms in laws to go nearer to the
spirit of constitutional values. When, in the course of my survey, I asked all the respondent
Muslim women who they seek justice from, the answer was unanimous - from court of law, and
not the Jamaat. This is what the Muslim women want. The movements must build pressure on
elected governments to make progressive laws without waiting any more for a "demand from the
community", as the women are already demanding this, and the government is supposed to make
laws in conformity with constitutional values. After a widespread educational revolution all
across the country and long struggles of the organizations and individuals, many Muslim women
and individuals are coming out vocally for changes, which is creating pressure to some extent,
but the truth is that still there is no unified aandolan or mass movement clearly representing the
voices. Unless women and progressive organizations succeed in creating such a force, reforms in
personal laws will remain a distant but not an impossible dream.

REFORMS IN MUSLIM PERSONAL LAWS

It will be recalled that in the late 50s when the former Justice V. R Krishna Iyer was law minister
in Kerala, he had introduced a Bill seeking to amend the inheritance laws which discriminate

32 | P a g e
against the Christian women in that state. He failed in his effort because he was opposed not only
by the Christian establishment but also by Muslim leaders and other member of opposition. The
reason is obvious. Any success in reforming the laws governing one religious community is
bound to pave the way for similar reform in the laws applicable to other religion48.

There is crying need for a comprehensive legislation to be drafted under the guidance. Islamic
law is so progressive that it can become basis for a Uniform Civil Code. However, conservative
Muslim society dragged the Quran pronouncement to its own level and introduced, through
human reasoning many measure, which curbed women‘s rights. Despite reforms in other
countries women have not got full measure of equality, which theoretically concede.49

Quran is the only unanimous divine source for Muslims and it remains most progressive in
respect of women‘s rights. Ideally it grants equality between man and woman and should be the
main source of legislation about women‘s right. The past interpretation of the Quran was
constrained by socio economic condition and should not be binding on the present and the future
generation of Muslims. All great Islamic thinkers have reputedly made this point and have
accepted the central role of ‗Jtihad (creative interpretation). It is the only our social conservatism,
not lack of theological sanction, which prevents our ulama from exercising it.

Further, the issue of compulsory marriage registration is a one of the other step toward
reformation in Muslim personal law. In the year of 2006, the Supreme Court directed all states
and union territories to notify rules for compulsory marriage registration. In July of the following
year, the court was informed that some states had framed rules only for Hindu marriages.
Therefore, in October 2007, the court ordered compulsory registration of marriages of couples of
all religions and rules to be enacted to that effect within three months.

While this was seen by the conservative sections in the Muslim community as interference in
their personal laws, the liberal voices pointed to a very significant aspect: a marriage is a contract
in Islam. In fact, a member of the Law Commission of India and an expert on Islamic law, Tahir
Mahmood, observed that since parties to a Muslim marriage have full contractual freedom under

48
Vimal Bala subrahmanyam, ‗Women, Personal Laws and the struggle for secularism‟, Economic and Political
Weekly, Page 1216, Vol. 20 no 30 (July 27, 1985).
49
Asghar Ali Engineer, „Abolishing Triple Talaq what next?‘ Economic and Political Weekly, page 3093 Vol. 39,
no (28, July 2004).

33 | P a g e
Islamic law and can stipulate conditions of their choices that do not violate mandatory provisions
of the shariat, the new nikahnama is valid. Critics also point out that the more liberal Islamic
schools of shariat like the Shafi, Malik and Hanafi are ignored by the board. Therefore, it is
clearly documented here that, there are various step has been taken for reformation of the
personal law.50

STATUS OF MUSLIM WOMEN IN INDIA: POLITICAL, JUDICIAL, AND PUBLIC PERSPECTIVES

State law, legal rulings and ideology, and actual public policy all affect the community‘s legal
culture by shaping identities and legal consciousness. Thus the attitudes of the various state
agencies toward the status of minority women and religious group rights need to be monitored
over time. In parallel, the groups in society that advocate changes in personal law should be
identified as well as their motives. Obviously, a thirst for gender equality has not necessarily
been the driving force behind Hindutva attacks on Muslim Personal Law. The Hindutva
resentment of Islam has been responsible in most cases, but criticism of the laws by secular
forces has been prevalent as well who found that the existing Muslim Personal Law is gender
biased in favor of men. Other elements in Indian society, such as various women‘s organizations,
care deeply concerning women‘s rights, and the principles of equality and equal opportunity in a
divided democracy (Basu 2008).

The constitutional articles affecting Muslim women‘s rights were set down in the midst of a
conflict between Hindus and Muslims. India was founded over 60 years ago amid a violent
partition process characterized by, among other issues, acute competition between Hindus and
Muslims. The controversy over minority reservation and participation in politics was among the
major causes of the partition between India and Pakistan. The dominant Hindu leaders of
colonial India rejected the demand of Muslim leaders to establish a cooperative Hindu–Muslim
government. Accordingly, the Muslims aspired to establish a separate state of their own:
Pakistan. Nevertheless, the Indian independent state formed alongside the Muslim state of

50
A Nikahnama for Muslim Women, Economic and Political Weekly, Vol. 43, No. 12/13 (Mar. 22 - Apr. 4, 2008).

34 | P a g e
Pakistan grants equal civic rights to all citizens, regardless of religion, gender, or ethnic origin.
India is not defined in its official documents as ―a Hindu state,‖ but rather as a secular
democracy that is formally neutral in terms of its myriad communities, both majorities and
minorities (Harel-Shalev 2010, 2013). India does not restrict itself to civil rights; aside from
provisions that entitle all its citizens to equal civic rights, India recognizes collective group rights
and recognizes cultural and religious autonomy for religious minorities.

In the country‘s early days, the Indian Constituent Assembly recommended the legislation of
―uniform personal laws‖ for all the citizens of India in accordance with the principles of
secularism and with its self-definition as a civic nation. This recommendation later became
Article 44 of the Constitution of India (2011): ―Uniform Civil Code for Citizens: The state shall
endeavour to secure for citizens a uniform civil code (UCC) throughout the territory of India.‖
This article has remained intact to this today. In addition to Article 44, Article 372 states that
existing family laws will remain in force until Parliament revises the original laws (see
Constitution of India 2011).

A subsequent case of Shah Bano Begum v. Mohd. Ahmed Kahn 1985 set a controversial
precedent. This was the first time that the courts openly contravened Muslim Personal Law by
ruling as unjust the alimony due to divorced women according to the Sharia. Crucially, the court
also declared that Indian civil law was legally superior to the Sharia. In the landmark case, a
woman named Shah Bano petitioned the court to force her husband to pay her alimony after he
divorced her following 46 years of marriage. Her petition was based on Article 125 of India‘s
Code of Criminal Procedure (CrPC 1973), which states that the estranged husband is to pay his
former spouse a standard payment every month. In her plea, Shah Bano claimed that her former
husband did not provide her with sufficient means to support herself.

In his defense, the husband argued that the Sharia required him to transfer only a designated
amount (known as the mahr) during the three-month duration of the idatt. Backed by Islamic
law, therefore, he was confident that he had fulfilled his spousal duties and that his ex-wife was
not entitled to additional support. The High Court in Madhya Pradesh (MP) ruled that in addition
to the mahr paid during the idatt, the husband was to pay his ex-wife monthly alimony as
dictated by the CrPC. The husband then appealed to India‘s Supreme Court, but it upheld the
April 1985 decision handed down by the High Court in MP. Included with the decision was a

35 | P a g e
clarification by the Supreme Court that the husband was obligated to abide by CrPC dictates
because the state‘s civic law superseded community religious law.

The justices began their verdict with the following sentence: ―[T]his appeal does not involve any
constitutional importance‖. Arguably, the judges were convinced that their decision, like those in
the other two cases cited, touched on mere conventional attributes of the law; however, it is far
more likely that they were well aware of its potentially highly charged impact and worded their
decision accordingly in an effort to attenuate the public outrage that rightfully could have been
anticipated in the wake of the ruling. The theoretical literature on the behavior of high courts has
shown that courts in democratic countries rarely hand down decisions that oppose prevailing
public moods, instead preferring to reflect the wider trends prevalent in their society. The Shah
Bano case gave the courts an opportunity to state their positions regarding India‘s progress
toward a universal and uniform personal law. For this reason, India‘s Supreme Court declared
that previous court‘s reluctance to intervene in Muslim Personal Law was misguided. The
Supreme Court ruled that in the name of ―justice,‖ Indian state law—which emphasizes the
principle of equality—was superior to Muslim Personal Law in this case, but the court refrained
from basing its decision on the argument that Muslim Personal Law interfered with the exercise
of fundamental rights. Had the courts employed this argument, Muslim Personal Law could have
been nullified according to the Constitution. Instead, the court‘s refusal to invalidate Muslim
Personal Law effectively waived the opportunity for the Parliament to reform the law (Dhavan
and Nariman 2000,

Nevertheless, conservative Muslim figures and organizations were infuriated by the decision,
arguing that the ruling represented a red flag in the face of Islam in general and India‘s Muslims
in particular. Tahir Mahmood (1995) argued that the court‘s ignorance of Islam was behind such
a flawed decision and likewise held (1986) that the Constitution called for the formulation of a
uniform personal law but not of a single law held in common. The Muslim community‘s
reactions were not unified: an extensive protest campaign, organized by the All India Personal
Law Board, was subsequently waged with the participation of the Muslim press, religious
institutions and mosques, and local communities. Its platform stated that the Shah Bano decision
represented a death knell to Islamic identity in India (see ―The Shah Bano Verdict‖ 1985).

36 | P a g e
Other organizations, like the Muslim Majlis– e-Mushawarat, led by Syed Shahabuddin,
announced that if the decision was not reversed, Muslims would treat Indian Republic Day as ―a
black day.‖6 Importantly—although not loudly enough to be heard by all—more moderate,
liberal Muslims and numerous academics concurred with the Supreme Court decision (Pathak
and Sunder Rajan 1989). The issues raised by the Shah Bano decision were of singular
importance both to Indian women generally and to Muslim women in particular (Menon 1998a).
But conservative Muslim interests were able to transform the ruling in the case into a threat to
Muslim identity and self-respect within the confines of India (Hasan 1993). Rajiv Gandhi,
India‘s prime minister, initially supported the court but later reversed his position in response to
pressure from Muslim members of his party (The Congress Party). Subsequent demonstrations
and riots by Muslims throughout India affected the political system. To quell the unrest, Prime
Minister Gandhi assigned Z. R. Ansari, a Muslim cabinet member, the task of investigating the
issue. In so doing, he garnered the support needed to formulate a legislative proposal declaring
the superiority of Sharia to civil law in matters of divorce and personal law. Parliamentary
debates on the subject were lengthy, with many participants objecting to the proposal on the
grounds that it was inherently undemocratic and anticonstitutional. In fact, liberal Muslims also
strongly opposed the proposal, and A. M. Kahn even resigned from the cabinet in protest over
the proposal‘s ―inhumane‖ and ―anti-Islamic‖ elements. Despite strong bipartisan antagonism,
the proposal was passed and signed into law on May 5, 1986.

India‘s democratic, secular republicanism floundered with the government‘s choice not to
intervene in the practice of Muslim Personal Law. Moreover, its choice of action effectively
indicated its acceptance of orthodox Muslims as the community‘s sole representatives. Zoya
Hasan (2000, 283), a distinguished Muslim political scientist, claimed that the proposal
overturning the court ruling was defective, and as such, it represented nothing short of a
perversion of the basic principle of equality. The proposed law placed Muslims, especially
Muslim women, beyond the reach of justice and equality. Ironically entitled ―Muslim Women‘s
Protection of Rights in Divorce Bill,‖ it was passed after a campaign headed by the provocative
slogan ―What Muslims want.‖

In short, the Indian state considered nonintervention in community cultural affairs as promoting
its own interest, in terms of political stability. The multicultural Indian state did not succeed in

37 | P a g e
awarding all its diverse communities the same levels of civic and democratic rights, an outcome
that has been most detrimental to Muslim women. While it is clear that Parliament should not
force dramatic changes on the minority regarding the scope of group rights and should avoid
significant, one-sided moves the crawling pace of the Indian judicial process as witnessed in the
Sarla Mudgal, President, Kalyani and Others v. Union of India and Others (1995) case
precludes Muslim women from attaining empowerment, particularly when no parallel attempts
are being made by the various state Kali arms, especially the Parliament and government.
Nonetheless, growing numbers of Muslims in India have been publicly calling for reform of
Muslim Personal Law.

CHAPTER VII

POSITION IN OTHER COUNTRIES

There are more than 22 Countries (Islamic states) in the world who declared the practice of triple
talaq null and void, but why is still accepted in India? The answer is very simple ―Politics‖51. As
India is a Secular state and not an Islamic state despite of it India is also a male dominant State
where majority of lawmakers are men. Also, Indian government doesn‘t want to intervene with
Muslim personal laws as it is solely based on Quran and its practice. After independence India
declare itself as a secular nation which respects all the religion and Article 25 of Constitution of
India gives freedom to practice any religion.

The laws in UAE, Iraq, Egypt, Morocco, Philippines, Sudan, Jordan, Kuwait, Philippines, Syria
and Yemen, these states have totally derecognized the concept of triple talaq. In all the above-
mentioned countries every talaq effects only a single revocable divorce, which can be revoke
during wife‘s iddat, failing that for renewal of remarriage anytime with her consent. Even the
device of halala for validating remarriage of the parties also stands abolished in these

51
Tahir Mahmood, Muslim Law In India And Abroad P. 145 (2nd Ed. 2016).

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countries52. As these practices are inhuman in nature and against the dignity of woman which
must be abolished in India as well.

 EGYPT

Powerful international norms like CEDAW, 1979 has been ratified by almost all countries in
Middle East including North African country that is Egypt. However, contradiction remains as
Article 2 of new constitution of Egypt declares Sharia as the main source of legislation. Some
Muslim countries objected for its adoption as being against the principles of Sharia. 53 Impact was
that Article - 11 of constitution of Egypt (to preserve liberty and equality of women) turned
abstract. Survey of Thomas Reuters foundation declaring Egypt as the worst country for
women's rights, cases of female genital mutilation, domestic violence, sexual harassment etc.
makes clear that country is still plagued under discrimination. Status of Indian Muslim Women
doesn't differ much. Religions law merely cannot be a reason for curtailment of women's rights
but its selective interpretation. Egyptian constitution does not allow any non-Muslim law to
interfere with the existing law contrary to Sharia. In India, personal laws enjoy independent state.
It will be wrong to say that Allah weighs men and women unequal but the patriarchal
interpretation of Muslim law is responsible for prevailing discrimination.

LEBANON

Father holds the supreme position in any Muslim family of Lebanon. However, Lebanon is
considered to be literal among all the Muslim countries in Middle East but still in rural regions,
women are restricted to the family and children. Status of Muslim Lebanese women is quite
similar to those of India. Marriage is a civil contract in Lebanon.

AFGHANISTAN

Most of the Muslim countries offer hindrance to the establishment of gender equality as these is
governed by patriarchal setup. Afghanistan is one out of them which showcases one of the most
inferior positions of Muslim women among all. Similar to some orthodox and conservative

52
Sam Brotman et al., Implementing CEDAW in North Africa and the Middle East: Roadblocks and Victories
(2008).
53
Lama Abu-Odeh Professor of Law Georgetown University Law Center, Modernizing Muslim Family Law: The
Case of Egypt (2004).

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communities in India, birth of a girl child is often taken as a cause of second marriage in
Afghanistan. Girls are married at very young age of 13-16 years or in certain cases between 10-
12 years. They lack right to choose their life partners, which is a task entrusted to the
parents/Guardians only. Husband possesses absolute right to break the marriage. Deprivation of
rights and claims for children, polygamy etc. are the areas where women are not supposed to
have a dignified living and equal status as men in society. Women are ignored of their right to
have compulsory elementary education.54

Position of women in Afghanistan uplifted somewhat during Karzai government. During

Taliban's regime 80% of Afghan marriages were arranged by force, has been cited in one of the
reports of Amnesty international. Socio-economic conditions of India and Afghanistan reveals a
vast difference. It was only in 1919 when formal education sector was opened for women in
Afghanistan. Despite of certain distinct features, inferior position of Muslim women can be
witnessed both in India and Afghanistan.

CHAPTER VIII

UNIFORM CIVIL CODE AND MINORITY RIGHTS

It‘s thought provoking whether secular law can be overridden by religious laws. Whatever may
be the political outlook of preserving personal laws but the Supreme Court has continuously been
trying to make Article - 44 alive. In Mohd. Ahmed Khan v. Shah Bano Begum, the Supreme
Court held that husband will have an obligation to bear maintenance charges beyond iddat
period. In another case of Sarla Mudgal v. Union of India, court pleaded for a uniform civil
code "for the protection of oppressed and promotion of national unity and solidarity." In Daniel
Latifi v. Union of India226, Supreme Court ruled against the provisions of Muslim personal law
and upheld husband to pay maintenance charges beyond Iddat. Article - 44 which states that -

"The state shall endeavour to secure for the citizens a uniform civil code throughout the territory
of India" is more than a pious doctrine. But political uproars and communal attitudes over its
enactment have been causing to ignore the sensible and human judgements of Supreme court e.g.
Shah Bano's case. Former chief Justice of Supreme Court, Justice Shri Gajendragadkar said,
54
Sanja Kelly & Sanja Kelly, Women‘s Rights in The Middle East and North Africa: Progress Amidst Resistance
(2010).

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 "Non- implementation of Article -44 amounts to a grave of Indian democracy
and sooner we take suitable action in that behalf, the better and in the process
of evolving a new secular and order, a common civil code is a must."

Beginning is hard but time is to embrace secular laws leaving behind the religion oriented laws
so as to make the dead letter, Article-44 of Indian constitution alive.

CONFLICT BETWEEN MUSLIM LAW AND HINDU LAW

Now the important question that requires a little stipulation is : when one party at the time of the
institution of the suit of dissolution of marriage is a Hindu and the other is a Muslim, which
personal law, whether Hindu or Muslim is to be administrative by the court. In Ayesha Bibi vs.
Suboth Chandra Chakravarty55 the plaintiff and the defendant were Hindu Brahmins married in
1941, In 1943 the plaintiff was converted to Islam, and then offered Islam to defendant, her
husband. As he refused conversion to Islam, the plain tiff brought the suit for dissolution of
marriage converted to Islam, and then offered Islam to defendant, her husband. As he refused
conversion to Islam, the plaintiff brought the suit for dissolution of marriage. The Court after
considering the position under Mohammadan law, examined if the Hindu law could be
administrated in this case. Since there was no Hindu marriage 4 Act, 1955, it came to the
conclusion that the Hindu law neither provided that after one spouse forsaking the religion, the
marriage was dissolved, nor did it lie down that it was not dissolved. The court also considered
the fact that if the marriage was not dissolved.

The court also considered the fact that if the marriage was not dissolved, the defendant could not
have control over his Mohammadan wife. The court observed that, in the absence of any general
law, to be administered in this case, and since the court had assumed jurisdiction, it was for the
court to make a choice of law, to be applied by it to such a case of conflict of personal laws. If
there are no statutory direction the court would have to make its own choice of law in accordance
with the general juristic principles as best as it can. The court, therefore, after considering the
implication of both the Mohammadan law and Hindu law, chose to administer Mohammad law

55
ILR (1945) 2 Cal. 405.

41 | P a g e
in this case and granted a decree to the plaintiff dissolving her marriage with the defendant as the
court considered that its decision was in no case contrary to the public policy.56

The family life of Indians is, rightly or wrongly, guided by their respective religious and
customary beliefs Religions more or less survive only through the ceremonies and social customs
enforced upon its members if they are negated, soon enough religions will lose their eminence in
social sphere.57 The debate on Uniform Civil Code must be widened beyond four wives and three
talaqs. Look at the honour killings and Khap Panchayant verdicts. They all want to enforce their
religious and customary beliefs on the members of their family and community. If a system other
than what conforms to their faith is forced upon them, it invariably ideas to social unrest.

CHAPTER IX
SUGGESTIONS

The time has come for major steps to be taken to bring about reform and change in the Muslim
Personal Law in India. In order to accomplish these following steps must be taken:-

1. CODIFICATION OF THE MUSLIM PERSONAL LAW

The process of codification of Muslim Law is an imperative and now must be seriously
undertaken by a group of legal experts, liberal ulema and scholars in the field. Gender-just laws
must be the common denominator. Alongside Muslim women, Muslim men‘s organizations must
push for change. ROLE OF THE STATE: Parliament should step in with measures not for a
Hindu code or a Muslim Code but a secular code, drawn from basic principles of personal
freedom, human rights and justice in the country. Strict measures must be taken against if the

56
Sirajmohmedkhan v. Hafizunnisa Yasinkhan, AIR 1981 SC 1972.
57
Srinivasa Aiyar v. Saraswathi Ammal, AIR 1952 Med. (Madras Hindu (Bigamy Prevention and Divorcee) Act,
1949; State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84.

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Muslim Personal Law (Shariat) Application Act violates democratic rights guaranteed to the
individuals by the Constitution.

2. ENCOURAGING THE IDEA OF A UNIFORM CIVIL CODE

It will help the cause of national integration by removing the contradictions based on ideologies
and traditions. It will also help in eradicating many evils, unjust and irrational practices prevalent
across the communities, and will also strengthen the unity and integrity of the country. These
norms have to be observed in all human transactions in any civilized society.

3. INTRODUCTION OF GENDER JUST PERSONAL LAWS

Since most personal laws reflect the hierarchical notions of society and thereby accord secondary
status to women. So what we need are gender just personal laws. The gender just code in turn has
to be the same for all the communities and hence, it will be uniform. Gender justice has to be the
basis of uniformity; blind uniformity may turn out to be most unjust for women.

4. PRIORITIZATION OF GENDER EQUALITY

Priority must be given to the equality between men and women in terms of their fundamental
rights over conservative interpretations of religious scholars. This can be done by saying a big no
to triple talaq and polygamy. The personal law question needs to be understood in the context of
patriarchy and laws that accord secondary status to women need to be reformed.

5. SUPPORTING ALL REFORM MOVEMENTS THAT CHALLENGE PATRIARCHY

Every citizen should join hands with the government to eradicate the injustice against women
which will lead to the overall growth and development of entire nation. We have to try to lead
traditions out of darkness into light and not allow them to lead us into darkness. Policies on
women‘s empowerment exist at the national, state, and local (Panchayats) levels in many sectors,
including health, education, economic opportunities, gender-based violence, and political
participation. However, there are significant gaps between policy advancements and actual
practice at the community level. So the main effort of the state and all the law-making bodies
should be to fill this gap between ideology and practice of law making.

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They should try to abandon all those laws (like Triple Talaq, polygamy etc.) which are against
constitutional ethos. The Constitution guarantees minority communities the right to freely
practice and propagate their religion, own property and establish places of worship and run
educational institutions. This constitutional protection draws strength from a framework of
liberal democracy. Moreover, in a secular democracy religious laws cannot trump the
constitutional right to equality. Given that Hindu personal laws have evolved to empower Hindu
women, there‘s no reason why Muslim women have to suffer from patriarchal religious
practices. Triple talaq and polygamy fail the test of Indian constitutionality.

Thus, the rights of women should be respected across nations which are denied through power
structures and social customs like Triple Talaq and polygamy. The women should not be
deprived of their basic dignity of life which they deserve. Introduction of a secular code drawn
from the principles of personal freedom, human rights and justice will not only strengthen
secularism but will reinforce women empowerment.

6. REFORMING PERSONAL LAWS

Personal law reforms in India have been and continue to be a sensitive issue because they may
potentially impinge on the right to religious freedom of various religious groups in the country.
In contrast to this, several practices continued through the personal law system pose serious
threats to constitutional values of equality and dignity of individuals as well as groups of
individuals falling within the broader category of a religion, such as women. While dealing with
the question as to the status of personal laws in independent India, the Constituent Assembly
considered it prudent to continue the personal law system.

Nonetheless, the idea that personal laws needed to be reformed so as to meet the constitutional
goals was not lost in the post-independence period. In the early years, the thrust to reform the
personal laws came from the executive and the Parliament. This is exemplified by the various
attempts to enact what came to be known as the Hindu Code. The first Prime Minister, J.L.
Nehru, was of the opinion that task of reforming personal laws must begin from the majority as it
would demonstrate that the reforms were not political tools to suppress the minorities. 104
However, legislative attempts to reform personal laws of other religious communities came

44 | P a g e
much later.10 In the meantime, judicial attempts to bring the personal laws in consonance with
the constitutional mandate had already begun, and it created huge social and political
divisiveness in the country.

7. ROLE OF STATE

The role of the State in this approach of reforming personal laws would be no less than that of
the members of religious groups. The State cannot effectively lead this process pursuing a
positivistic frame of mind and imposing its standards of human rights upon the religious
communities. Therefore, it will be necessary for the State to appreciate the centrality of religious
laws in order to support the process of internal reformation because personal laws are directly
related to and are important aspects of distinct identities of religious group. Therefore, if this
road to reforming personal laws is to reach the desired end, then it is crucial that the State in spite
of acting in a hostile and intrusive way towards religious personal laws act in a supportive
capacity. One way to do this is to encourage the religious groups to engage in internal
consultations about reforming their practices by developing programs and incentives that inspire
the process of reformation.

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 CONCLUSION

1400 years old practice comes to an end, it is difficult to understand the position of women‘s
who triply divorced by her husband. As India is a Country where women are fully dependent on
their husband to live, they treat husband as an Idol. Trivial fights between husband and wife
takes place in every societies in the world this doesn‘t mean that husband should put his hands
up from the marital tie and responsibilities towards his wife and children and leave them on
streets without roof. Some Muslim men abuse this practice to get rid of wife and to marry other
women and some abuses this weapon as a threat to demand dowry. In modern world men are
misusing this practice whimsically by pronouncing talaq via WhatsApp, postcard, emails
messages and other means of electronic communication. Triple talaq is always considered as
vagarious and whimsical act of the husband. Second Caliph, Umar who gave assent to practice
triple talaq was just to meet with emergency situations to protect the religion from abuse and not
to declare it as a permanent law58.

No doubt Muslim women are suffering a lot, they always live with a fear of triple talaq and
forced to survive like a slave. Practice of talaq-e-biddat violates the basic human right of women.
Marriage is a sacred relationship and a gift of God. Even the Holy Quran doesn‘t approve this
form of talaq and it declared as Haram by some Jurists. Quran permits talaq only after the
attempt of reconciliation and in presence of two witnesses. It is so disgust to observe such kind
of practice where the marriage solemnizes by consent of both the partners by pronouncing
―Qubool hai‖ thrice and dissolving such auspicious marriage arbitrary without the consent of
wife, even non-Muslims can sense and smell it as a sinful practice.

Gender friendly personal laws in the form of Uniform Civil Code are required with the passage
and change of time in a secular state like India. The journey from shah Bano59 to Shayara Bano60
determines various precedents in favor of Muslim women. These precedents now protect the
fundamental rights of Muslim women. It violates the right to equality guaranteed under Article
14, on the grounds of gender discrimination it also violates right guaranteed under Article 15,

58
Tahir M. Muslim Law in India and Abroad (2nd ed.).
59
Shamim Ara V. State of U.P. ors, MANU/SC/0850/2002.
60
Moonshee Buzloor Ruheem V. Shumsoonnissa Begum, (1867)11 MIA 551 (610).

46 | P a g e
Article 21- Right to life includes right to live with dignified life and Article 25 gives freedom to
practice any religion & protects the all religious practice, hence all these fundamental rights are
assassinated. Misusing triple talaq should be condemned since it is against the Quranic
Injunction. I agree with the judgment of the Honorable Supreme Court and fully support the law
constituted by the parliament (The Muslim Women (Protection of Rights on Marriage) Bill, 2017
which abolish the practice of talaq-e-biddat and penalize the offender. This bill is live example
for development of Common Civil Code in India.

To sum up, law making in a multicultural society like India, ought to take into consideration
factors that are intrinsic to the distinct identities of the people constituting it. At the same time, it
is also important that the larger principles of equality, liberty, and dignity are not ignored.
Therefore, there can only be certain in-built principled exceptions applicable to the interpretation
and application of personal laws. Although, when legislators devise laws they confront a vast
decision problem, but it is important that they proceed with what is often called 'the total
evidence requirement'. It is also necessary that they tread cautiously in the realm of
criminalization. This is more so when the legislature appears to have a tendency of criminalizing
a human conduct which essentially arises out of a civil obligation, in the present case instant
triple talaq. This reasoning applies with similar intensity to Indian courts as well.

The need to choose between religious beliefs and community affiliations versus gender claims is
never easy, if not impossible. Moreover, in the two decades since the Shah Bano ruling, the
realities on the ground have changed in terms of inter-communal violence, and the intensity and
growing popularity of the right wing, which have made women‘s struggles even more
complicated.

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 BIBLIOGRAPHY

STATUTES

ACTS AND BILLS

 THE COMMISSION OF SATI (PREVENTION) ACT, 1987.

 CONSTITUTION OF INDIA.
 CRIMINAL PROCEDURE CODE, 1973.
 DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939
 MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937.
 MUSLIMS WOMEN'S (PROTECTION OF RIGHT ON DIVORCE) ACT, 1986.
 THE INDIAN DIVORCE ACT, 1969.
 THE SPECIAL MARRIAGE ACT, 1872.
 TRIPLE TALAQ BILL, 2017

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24. Sivaramayya, B., "Coparcenary Rights to Daughters: Constitutional and Interpretational
Issues"~ (1997) 3 SCC (Jour) 25.
25. Vargo, N. and R. Goldfaden, "The Goa Uniform Civil Code-Alive and Kicking", The
Lawyers, XJ7 (1995), p.21.
26. Sanja Kelly & Sanja Kelly, Women‘s Rights in The Middle East and North Africa:
Progress Amidst Resistance (2010).

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 WEBSITES

 www.supremecourtofindia.nic.in

 www.scconline.com

 www.jstor.com

 www.manupatra.com

 www.westlaw.com

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