TRIPLE TALAQ

NAME: KUNISHKA SHARMA

ENROLLEMENT NO: 02516503520
BBA LLB
SSWHAT ARE THE TYPES OF TALAQ?

There are three types of Talaq for men and women under Islamic Law. These are
Hasan, Ahsan, and Talaq-e-Bidat that is Triple Talaq. The first two are revocable
whereas the triple talaq is irrevocable. The first two are not instant divorce, it takes
some time whereas the triple talaq is instant divorce.

Wifes cannot divorce husbands by pronouncing triple talaq under this law. They have
to visit court for giving divorce to her husband under the Muslim Personal Law Act
1937. Wife is allowed to divorce her husband by mutual consent or a judicial decree
known as ‘Khula’. Its reference is available in the Holy Quran or by the sayings of
Prophet Mohammed known as Hadees.

WHAT IS TRIPLE TALAQ?

The blatantly anti-women divorce customs prevalent in pre-Islamic Arabia had been given a
severe blow by the teachings of Prophet Muhammad who was, indeed, a great social
reformer. Demonstrating the truth of the saying “old habits die hard”, unscrupulous men
innovated, in the course of time, ways and means to circumvent the Prophet’s noble
teachings. One of these was the practice of triple talaq. There have been cases in which
Muslim men in India have divorced their wives by issuing the so-called triple talaq by letter,
telephone and, increasingly, by text message, WhatsApp and Skype. Talaq is an Islamic word
for divorce, denoting dissolution of marriage when a Muslim man can severe all marital ties
with his wife. Under the Muslim law, Triple Talaq means liberty from the relationship of
marriage, eventually or immediately, where the man, by simply uttering the word ‘talaq’
three times, ends his marriage. This instant divorce is called Triple Talaq, also known as
‘talaq-e-biddat’.

Triple Talaq is the 1400-year-old practice among the Sunni Muslims. The Muslim Personal
Law (Shariat) Application Act of 1937 had legalised and allowed the practice of Triple Talaq
which gave a Muslim husband special privileges over his wife.

IMPACT:
Triple Talaq adversely impacts the lives of Muslim women. This sinful culture encourages
polygamy, gives mental insecurity and threats of instant divorce. It has been treated as the
dominance of men over women. Hence, it goes against gender equality, women
empowerment, the dignity of women, justice, and human rights. In small matters, Muslim
men give triple talaq threats to their wives. This destroys the life of women and children.

WHAT’S THE SHAH BANO CASE?

FACTS:
Mohd Ahmed Khan (the appealing party) who was a lawyer by profession, married to Shah
Bano Begum (the respondent) in 1932, had three sons and two daughters from this marriage.
In 1975, when Shah Bano’s age was 62 years, she was disowned by her spouse and was
tossed out from her marital home together with her children. In 1978, she filed an appeal in
the presence of Judicial Magistrate of Indore, because she was abandoned from the
maintenance of Rs. 200 per month, which was guaranteed to be provided by him. She
demanded Rs. 500 per month as maintenance. Subsequently, the husband gave her
irrevocable triple talaq on November 6th, 1978, and used it as a defence to not pay
maintenance.  The magistrate, in August 1979, directed the husband to pay an entirety of Rs
25 per month as maintenance. Shah Bano in July 1908 made a plea to the High Court of M.P,
to change the sum of maintenance to Rs. 179 each month, and high court increased the
maintenance to the said amount i.e. Rs. 179 per month.  The same was challenged by the
spouse within the Supreme Court as a special leave petition to the High court’s decision.

ISSUES:

1. Criminal Procedure Code (II of 1974), Section 125. Whether the “WIFE”
definition includes a divorced Muslim woman?
2. Criminal Procedure Code (II of 1974), Section 125. Whether it overrides personal
law?
3. Criminal Procedure Code (II of 1974), Section 125. Whether a Muslim husband’s
obligation to provide maintenance for a divorced wife is in or not in the conflict
between section 125 and Muslim Personal Law? 
4. Criminal Procedure Code (II of 1974), Section 127(3) (b). What is the sum
payable on divorce? The meaning of Mehar or dower is not summed payable on
divorce?

JUDGEMENT:

 The verdict was given by C.J, Y.C Chandrachud, and the appeal of Mohd. Ahmed
Khan was dismissed.
 Supreme Court said Section of the code applies to all citizens independent of their
religion and consequently Section 125(3) of Code of Criminal Procedure is
pertinent to Muslims as well, without any sort of discrimination. The court further
stated that Section 125 overrides the personal law if there is any conflict between
the two It makes clear that there’s no strife between the provisions of Section 125
and those of the Muslim Personal Law on the address of the Muslim husband’s
obligation to provide maintenance for a divorced wife who is incapable to
maintain herself.
 Supreme Court in this case duly held that since the obligation of Muslim husband
towards her divorced wife is restricted to the degree of” Iddat” period, indeed
though this circumstance does not contemplate the rule of law that’s said in
Section 125 of CrPc., 1973 and subsequently the obligation of the husband to pay
maintenance to the wife extends beyond the iddat period in the event that the wife
does not have sufficient means to maintain herself. It was further stated by the
 court that this rule according to Muslim Law was against humanity or was wrong
because here a divorced wife was not in a condition to maintain herself.
 The payment of Mehar by the husband on divorce is not sufficient to exempt him
from the duty to pay maintenance to the wife.
 After a long court procedure, the Supreme Court finally concluded that the
husbands’ legal liability will come to an end if a divorced wife is competent to
maintain herself. But this situation will be switched in the case when the wife isn’t
able in a condition to maintain herself after the Iddat period, she will be entitled to
get maintenance or alimony under Section 125 of CrPC

 
AFTERMATH:

Article 44 of the Directive Principles in the Constitution, directs the state to provide for its
citizens a Uniform Civil Code throughout the territory of India. C.J Chandrachud while
giving judgment stated the need to implement the same. He said “A common civil code will
help the cause of national integration by removing disparate loyalties to laws which have
conflicting ideologies. A beginning has to be made if the Constitution is to have any
meaning.” This simulated the debate on the Uniform Civil Code in India.

Shah Bano’s case judgment was criticized by many Muslims especially Muslim scholars.
They considered this decision in conflict with the rules of the Quran and Islamic Laws/Islam.
Subsequently, the Parliament of India in 1986 decided to enact the Muslim Women
(Protection of Rights of Divorce) Act, 1986. Protecting the rights of the divorced Muslim
Women and or those who have got divorced from their husbands, were the main objective of
this act. Under this act:

Cognizable offence:
Clause 3 in Chapter 2 of the Act clarifies that, “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”. The same clause also stated that, “whoever
pronounces Triple Talaq upon his wife shall be punished with imprisonment for a term
which may extend to three years and fine”

Custody of children:
Clause 6 in Chapter 3 of the Bill states that, “a married Muslim woman shall be entitled to
custody of her minor children in the event of pronouncement of talaq by her husband, in such
manner as may be determined by the Magistrate”.

Bail:
According to Clause 7 (c) in Chapter 3, “No person accused of an offence punishable under
Triple Talaq law shall be released on bail after the Magistrate, on an application filed by the
accused and after hearing the married Muslim woman upon whom talaq was pronounced, is
convinced that there are reasonable grounds for granting bail to the accused”.
TRIPLE TALAQ BILL

In 2017, when the Prime Minister Narendra Modi initiated a campaign for the Uttar
Pradesh State Elections. Then, Muslim women raise their voices and issues to
abolish Triple Talaq. After this, the Central Government started finding solutions for
the issues of these women. In August 2017, Triple Talaq was termed
unconstitutional by the five-judge bench of the Supreme Court of India. Also, many
religious, social, and legal observations have formed against triple talaq practice.
Based on the judgment given by the Supreme Court, the Indian Parliament
introduced the Triple Talaq Bill.

The Bill was passed in Parliament in December 2018 to void the practice by the
Indian Muslim man. This Bill was passed by the Rajya Sabha with 99 votes in its
favor whereas 84 against it. However, this Bill was introduced by the Ministry of Law
and Justice Ravi Shankar Prasad in Lok Sabha on 21st June 2019. Finally, the
Protection of Rights on Marriage Bill 2019 was passed by both the Houses on 30th
July 2019. This Bill is also known as Muslim Women Bill. It was passed to make an
instant divorce a criminal offense.

ISSUES WITH THE BILL

 Divorce is a civil matter and making Triple Talaq a criminal offence is disproportionate
to criminal jurisprudence.
 The Supreme Court declared Triple Talaq as invalid and did not ask the government to
make it a penal offence.

o The Supreme Court by holding that Triple Talaq is unconstitutional implied that
mere utterance of Talaq thrice does not result in the dissolution of marriage, rather
it remains intact.
o However, by criminalising Triple Talaq the law presumes marriage has ended and
for that Muslim man shall be punished.
o Thereby criminalizing the Triple Talaq goes against the spirit of the Supreme
Court judgement.
 Further, if the husband is imprisoned, how he can pay maintenance allowance to wives
and children.
 Also similar to misuse of Indian Penal Code section 498A (Dowry Harassment) which
led to harassment of the affected men, the penal provision in Triple Talaq can be subject
to such harassment.
WHY GOVERNMENT CRIMINALISED IT?

 The Triple Talaq was held to be violative of Article 14 (the right to equality), which is
held by the Supreme Court from Shah Bano case 1986 to Shayara Bano case in 2017.
 The Government held that 473 cases of Triple Talaq have taken place even after two
years of judgement pronounced by the Supreme Court.
 The law has been placed as a deterrent to eradicate social evils. For example:

o Untouchability was abolished by the Constitution, but the continued practise of

untouchability forced Parliament to enact the Untouchability (Offences) Act in
1955 and later renaming it as Protection of Civil Rights Act in 1976.
o To eliminate atrocities faced by women in domestic space parliament enacted:

 The Dowry Prohibition Act in 1961

 Prevention of domestic violence Act 2005
 Triple Talaq is banned in more than 20 Islamic countries including Pakistan.
Terming Triple Talaq as unconstitutional as a step towards establishing uniform civil code
(Enshrined in Article 44 of directive principle of state policy), but criminalising it goes
against the ethos of Fundamental rights i.e. article 25 and 26 the freedom of religion.

Triple Talaq has led to the subjugation of Muslim women even after 72 years of
independence but its solution must come through coexistence rather than coercion.

CONCLUSION:
Though the court took a long time the decision of rejecting the appeal is very historic because
it keeps up the truth and faith of the individuals in the judiciary. This judgment has marked
the significance of maintenance which ought to be given to the divorced Muslim women who
are not in the condition to earn and maintain themselves.  The Shah Bano judgment pulled in
a lot of opposition with authoritative bodies being against the decision for the reason of it
being against the provisions of Islamic law, but SC passed the impartial judgment and at last,
it had maintained the trust and faith of citizens in the judiciary. This lead to enactment of the
Muslim Women (Protection of Rights on Divorce) Act, 1986 which given Muslim women
receiving a huge, one-time payment from their husbands amid the period of Iddat, instead of
a maximum month to month payment of ₹500 – an upper limit which has since been
expelled.