PROJECT ON

“Analysis of Triple Talaq”

KLE COLLEGE OF LAW,

NAVI MUMBAI

Submitted By:- Nancy VijayKumar Sharma

Submitted To:- Prof Rasika Bangre

Date of Submission:- 13th Aug 2022

ID NO.:- 104

LLB I Year – 2022-2023

 Abstract
Making triple talaq unconstitutional is one of the most historic moves taken by the Indian
parliament. Generally human rights are equated with more freedom and progress. However, it
becomes pertinent to note that conferring rights do not always result in emancipation. The major
reason behind this exclusionary nature of human rights is the universal assumption on which it is
based. The darker side of human rights most apparently manifests itself in case of women as they
are caught at the intersection of community identity and the narrative of modernity. One such
universalistic subject is the image of a thoroughly victimized Muslim women who is in need of
protection through the liberal rights discourse. The current debate around triple talaq, centered on
the Sharaya Bano and several batches of petitions as well as Supreme courts own Suo moto PIL
considers certain aspects of Islamic personal laws which amount to gender discrimination and
hence violates the constitution misses the point of intersectionality. This research paper will
introduce what is the basic meaning of triple talaq as defined in the Muslim marriage and divorce
act and its journey until its unconstitutionality was determined. The difficulties in taking consent
and getting majority from both the houses of the parliament (Lok Sabha and Rajya Sabha) will
also be focused upon. Forms of Divorce and Marriages in Muslims Law will be discussed along
with their essential characteristics. Is Talaq-e-Biddat Islamic in nature and whether it comes
under the protection of the Article 25 of the constitution? Is instant talaq violative of article 14 of
Indian constitution? Can the legislature make laws protecting Muslim women under article 15(3)
and (4) of the constitution? Whether Muslim Personal Law (Shariat) Application Act, 1937
bestows statutory status to the subjects governed by it or is it still sheltered under “Personal
Law” which is not within the meaning of word “law” under Article 13 of Constitution of India?
It will also include the related laws and amendment in the Muslim women’s rights and what are
the major legislation mad and amended till date to protect Muslim women from unjust treatment.
The ongoing debates by different sections and political parties of the country, their stand on the
decision of the legislature and judiciary will also be touched upon along with the view of Muslim
community people and All India Muslim Persona law Board (AIMPLB) as well. The idea behind
making triple talaq unconstitutional and making amendments to it will also be highlighted. The
undoubted case of maintenance for Muslim women (Shah Bano case) will also be discussed in
detail with its ratio decendi with the binding authority of the amendments made so far and
banning of triple talaq. The illegal use of triple talaq even after its abolishment and the steps
taken by police authorities and judiciary in this regard. Why the legislation has only declared
instant talaq only unconstitutional and not other forms of talaq? What were the obstacle in
passing of the legislation? The difficulties Muslim women had to face by this form of divorce
and how this form of divorce was not valid along with how Muslim men made mockery of their
own personal laws. The constitutional validity of the act will also be discussed. Finally, analysis
will be made about whether making triple talaq unconstitutional is a bane or boon for the Muslim
women.
 INTRODUCTION
If simply understood Triple talaq is a form of divorce in Muslim law where husband when says
the word “talaq” three times in oral, written or in electronic form. Triple talaq, also known as
talaq-e- biddat, instant divorce and talaq-e-mughallazah (irrevocable divorce) is a form of
Islamic divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni
Islamic schools of jurisprudence.
The debate has involved the Government of India and the Supreme Court of India, and is
connected to the debate about a uniform civil code (Article 44) in India. Article 44 states:

Article 44. Uniform civil code for the citizens The State shall endeavour to secure for the
citizens a uniform civil code throughout the territory of India.

Triple talaq became illegal in India on 1 August 2019, replacing the triple talaq ordinance
promulgated in February 2019. The Muslim Women (Protection of Rights on Marriage) Bill,
2019 passed on 26 July 2019 after a very long discussion and opposition finally got the verdict
(the Indian Supreme Court judgement of August 2017 described below) to all women. It makes
instant triple talaq (talaq-e-biddah) in any form – spoken, written, or by electronic means such as
email or SMS – illegal and void, with up to three years in jail for the husband.

BACKGROUND
Muslim family affairs in India are governed by the Muslim Personal Law (Shariat) Application
Act, 1937 (often called the "Muslim Personal Law"). It was one of the first acts to be passed after
the Government of India Act, 1935 became operational, introducing provincial autonomy and a
form of dyarchy at the federal level. It replaced the so-called "Anglo-Mohammedan Law"
previously operating for Muslims, and became binding on all of India's Muslims. In traditional
Islamic jurisprudence, triple talaq is considered to be a particularly disapproved, but legally
valid, form of divorce . Changing social conditions around the world have led to increasing
dissatisfaction with traditional Islamic law of divorce since the early 20th century and various
reforms have been undertaken in different countries. Contrary to practices adopted in most
Muslim majority countries, Muslim couples in India are not required to register their marriage
with civil authorities. Muslim marriages in India are considered to be a private matter, unless the
couple decided to register their marriage under the Special Marriage Act of 1954. Owing to these
historical factors, the checks that have been placed on the husband's unilateral right of divorce by
governments of other countries and the prohibition of triple talaq were not implemented in India.
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2019
 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-ebiddat
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 make 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:
(i) the married woman (against whom talaq has been declared), or
(ii) 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 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.

1
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2019
THE ON-GOING CONFLICT OF OPINIONS
OPPOSITION TO TRIPLE TALAQ
The practice faced opposition from Muslim women, some of whom filed a public interest
litigation in the Supreme Court against the practice, terming it "regressive”. The petitioners
asked for section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, to be scrapped,
describing it as being against Article 14 of the Constitution (equality before the law)
Section 2 of The Muslim Personal Law (Shariat) Application Act, 1937, states:
Section 2:- Application of Personal law to Muslims.—Notwithstanding any custom or usage to
the contrary, in all questions (save questions relating to agricultural land) regarding intestate
succession, special property of females, including personal property inherited or obtained under
contract or gift or any other provision of Personal Law, marriage, dissolution of marriage,
including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts,
trusts and trust properties, and wakfs (other than charities and charitable institutions and
charitable and religious endowments) the rule of decision in cases where the parties are Muslims
shall be the Muslim Personal Law (Shariat).
Article 14 of the Indian constitution states:
Article 14:- Equality before law The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth.
SUPPORT OF TRIPLE TALAQ
Triple talaq has been supported by the All India Muslim Personal Law Board (AIMPLB), a non-
governmental body that supervises the application of Muslim personal law. It believes that the
State does not have the right to intervene in religious matters. AIMPLB issued a code of conduct
in April 2017 regarding talaq in response to the controversy over the practice of triple talaq. It
also warned that those who divorce for reasons not prescribed under Shariat will be socially
boycotted in addition to calling for boycott of those who use triple talaq recklessly and without
justification. In addition, it also stated that it should be delivered in three sittings with a gap of at
least one month each.

Landmark Judgement on Triple Talaq

2
1.The Muslim Personal Law (Shariat) Application Act, 1937
2. Section 2
3. Article 14
THE SHAYARA BANO v. UNION OF INDIA (2017) 9 SCC 1

INTRODUCTION:- The Hon’ble Apex Court of India has pronounced its judgment declaring
the observance and practice of Instant Triple Talaq void and unconstitutional by virtue of the
landmark Judgement of Shayara Bano v. Union of India.
The practice of Triple Talaq has led to the devastation of the Muslim woman’s life, and they
have been facing the wrath of this social evil in the Muslim community. If at the heat of the
moment, a Muslim husband gives the triple talaq to his spouse, it cannot be revoked, leading to
the dissolution of their marital contract. This evil practice was thus challenged in India’s highest
Court in 2016.

FACT :- Shayara Bano and Rizwan Ahmed were married for fifteen years. In 2016, Rizwan
Ahmed pronounced Triple Talaq to Shayara Bano. She then challenged it in the Hon'ble Apex
Court by filing a writ petition. She challenged this unhealthy variety of Talaq alongside another
Muslim practice under Articles 14, 15, 21, and 25 of the Indian Constitution.
Article 14:- Equality before law The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth.
Article 15:- of the Constitution of India forbids discrimination on grounds only of religion, race,
caste, sex, or place of birth.
Article 21:- Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law.
Article 25:- Freedom of conscience and free profession, practice and propagation of
religion. 1. Subject to public order, morality and health and to the other provisions of this Part,
all persons are equally entitled to freedom of conscience and the right freely to profess, practice
and propagate religion.
2. Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may
be associated with religious practice.
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus Explanation I The wearing and
carrying of kirpans shall be deemed to be included in the profession of the Sikh religion
Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a
reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu
religious institutions shall be construed accordingly
The three practices of Sharia law which were challenged were:
 Instant Triple Talaq;
  Nikah Halala, an Islamic practice that states that if a divorced Muslim couple
wants to get remarried to each other again, then the divorced wife should first
marry another man and divorce him. Then only the divorced couple can get
married to each other.
 Polygamy underneath the Islamic Law by which a Muslim husband can have
more than one spouse at a time.
In February 2017, a five-judge constitutional bench of the Hon'ble Apex Court was constituted to
hear this matter.

CONTENTIONS

After receiving all the written statements, the Hon'ble Apex Court has categorized them into two
main issues, which were-

 Is instant Triple Talaq an essential religious practice of Islam?

 Whether Triple Talaq is offensive to the Fundamental Rights of the Indian
Constitution?

The question of whether or not the Triple Talaq is essential to religious practice arose because if
any practice under any religion is an important religious practice, then the Hon'ble Apex Court
cannot challenge or make changes to it.
So, if this impugned practice is not an essential religious practice, then the Hon'ble Apex Court
can give its judgment on it and either repeal, modify or build changes to that.

Superme Court Final Verdict

Finally, by the majority of 3:2, the Hon'ble Apex Court declared the observance of Instant Triple
Talaq illegal and directed the Parliament to enact a law in this regard. It paved the way for the
enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which was
passed in July 2019. It declared Triple Talaq's practice, whether in the written or electronic form,
to be void and illegal.
The Act makes Triple Talaq a cognizable offense punishable with three years of jail term
alongside a fine.

Demand for Reform:

3
Shayara Bano v. Union of India | Women And Justice | US Law | LII / Legal Information Institute (cornell.edu)
Article 14
Article 15
Article 21
Article 25
  Even after the Supreme Court’s order declaring this practice as unconstitutional, practice
of Triple Talaq continued.
 From the date of judgment of Supreme Court, i.e., from 22nd August, 2017 up to
introduction of the Bill in Parliament, i.e., up to 28th December, 2017, there were
reported around 100 instances of pronouncing of Triple Talaq in the country.
 Because there was no law to punish those who continued to practice ‘Triple Talaq’ and to
provide legal remedies to the victims of such practice, a need has arisen to make a law for
effective implementation of the Supreme Court judgment.
 The commitment of the Government, led by Prime Minister Shri. Narendra Modi, to give
gender justice, gender dignity and gender equality to the Muslim women was a major
initiative behind this reform.
Legislative Reform:
 To give immediate effect to the verdict of the Supreme Court the Muslim Women
(Protection of Rights on Marriage) Ordinance, 2018 was promulgated on the 19th
September, 2018 and two more Ordinances were promulgated thereafter.
 Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019 on
25th July, 2019 and the Rajya Sabha too passed it on 30th July, 2019. After receiving the
assent of the President of India, The Muslim Women (Protection of Rights on Marriage)
Act, 2019 came into force with retrospective effect from the 19th day of September, 2018
giving continued effect to the first Ordinance promulgated on 19th September, 2018.

Act & Provision for Imprisonment:

 The Muslim Women (Protection of Rights on Marriage) Act, 2019 declares the instant
divorce granted by pronouncement of talaq three times as void and illegal. It provides for
imprisonment for a term up to 3 years and fine to the husband who practiced instant
Triple Talaq.
 Muslim woman, upon whom Talaq was pronounced also granted custody of children and
subsistence allowance to be paid by the husband.
 Muslim women now have a legal protectiona gainst the whimsical and irrational
pronouncement of Triple Talaq.
 The Act also works as deterrence for husbands who intend to divorce their wives in this
manner.

Quantifying Benefits:
 From various sources including State police authorities, several media reports show that
there has been substantial reduction in the Triple Talaq cases due to legislative
intervention by the Government headed by Hon’ble Prime Minister of India, Shri.
Narendra Modi.

Qualitative Changes:
  The Act will improve the existing conditions of Muslim women and will help them to
come out of domestic violence and discrimination they are facing in the society.

Achievements:
 Abolishment of Triple Talaq has contributed to woman empowerment and has given
them dignity in the society.
 The government has strengthened “self-reliance, self-respect and self-confidence” of the
Muslim women of the country and protected their constitutional, fundamental and
democratic rights by bringing the law against the Triple Talaq.
 Triple Talaq cases have dropped by 82%within one year of passing of the Act.
 “Muslim Women Rights Day” was observed across the country on 1st August 2021to
celebrate the enactment of the law against Triple Talaq.

EARLIER CASE RELATING TO TRIPLE TALAQ AND MAINTAINANCE

Mohd. Ahmed Khan v. Shah Bano Begum and Others (1985 AIR 945)

Mohd. Ahmed Khan v. Shah Bano Begum commonly referred to as the Shah Bano case, was a
controversial maintenance lawsuit in India, in which the Supreme Court delivered a judgment
4
Factsheet Details: (pib.gov.in)
favouring maintenance given to an aggrieved divorced Muslim woman. Then the Congress
government, panicky in an election year, gave in to the pressure of Muslim orthodoxy and
enacted a law with its most controversial aspect being the right to maintenance for the period of
iddat after the divorce, and shifting the onus of maintaining her to her relatives or the Waqf
Board. It was seen as discriminatory as it denied right to basic maintenance available to non-
Muslim women under secular law.

Background of the case

In 1932, Shah Bano, a Muslim woman, was married to Mohammed Ahmad Khan, an affluent
and well-known advocate in Indore, Madhya Pradesh, and had five children from the marriage.
After 14 years, Khan took a younger woman as second wife and after years of living with both
wives, he divorced Shah Bano, who was then aged 62 years. In April 1978, when Khan stopped
giving her the ₹200 per month he had apparently promised, claiming that she had no means to
support herself and her children, she filed a petition at a local court in Indore, against her
husband under section 125 of the Code of Criminal Procedure, asking him for a maintenance
amount of ₹500 for herself and her children. On November 1978 her husband gave an
irrevocable talaq (divorce) to her which was his prerogative under Islamic law and took up the
defence that hence Bano had ceased to be his wife and therefore he was under no obligation to
provide maintenance for her as except prescribed under the Islamic law which was in total
₹5,400. In August 1979, the local court directed Khan to pay a sum of ₹25 per month to Bano by
way of maintenance. On 1 July 1980, on a revisional application of Bano, the High Court of
Madhya Pradesh enhanced the amount of maintenance to ₹179.20 per month. Khan then filed a
petition to appeal before the Supreme Court claiming that Shah Bano is not his responsibility
anymore because Mr. Khan had a second marriage which is also permitted under Islamic Law.

Judgement

On 3 February 1981, the two-judge bench composed of Justice Murtaza Fazal Ali and A.
Varadarajan who first heard the matter, in light of the earlier decisions of the court which had
held that section 125 of the Code applies to Muslims also, referred Khan's appeal to a larger
Bench. Muslim bodies All India Muslim Personal Law Board and Jamiat Ulema-e-Hind joined
the case as intervenor. The matter was then heard by a five-judge bench composed of Chief
Justice Chandrachud, Rangnath Misra, D. A. Desai, O. Chinnappa Reddy, and E. S.
Venkataramiah. On 23 April 1985, Supreme Court in a unanimous decision, dismissed the appeal
and confirmed the judgment of the High Court. 6 Supreme Court concluded that "there is no
conflict between the provisions of section 125 and those of the Muslim Personal Law on the
question of the Muslim husband's obligation to provide maintenance for a divorced wife who is
unable to maintain herself." After referring to the Quran, holding it to the greatest authority on
the subject, it held that there was no doubt that the Quran imposes an obligation on the Muslim
husband to make provision for or to provide maintenance to the divorced wife. Shah Bano
approached the courts for securing maintenance from her husband. When the case reached the
Supreme Court of India, seven years had elapsed. The Supreme Court invoked Section 125 of
Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It
ruled that Shah Bano be given maintenance money, similar to alimony.

CASES EVEN AFTER THERE HAS BEEN A BAN ON TRIPLE TALAQ

1. A case of triple talaq has been registered at Savadatti police station, the first in Karnataka
since the Parliament passed the Muslim Women (Protection of Rights on Marriage) Act 2019,
which bans divorce by triple talaq.

2. On 24th August 2019, a man has been arrested in Uttar Pradesh's Muzaffarnagar district for
allegedly divorcing his wife by pronouncing the word 'talaq' thrice, a practice which has been
criminalised, police said on Saturday.

3. Maharashtra registered its first case, with Mumbra police booking a Vikhroli resident for
allegedly sending his wife a triple talaq message on WhatsApp.

ANALYSIS OF THE CASE

The judicial pronouncement of the Shayara Bano v. Union of India has become one of the
milestones in India's judicial history. Because, with this verdict, the Hon'ble Apex Court
confirmed by a majority that in case of any conflict, the fundamental rights enunciated in the
Indian Constitution stand at a higher pedestal in comparison to the practices mentioned in the
Personal laws.
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Mohd. Ahmed Khan v. Shah Bano Begum and Others (1985 AIR 945)
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It is essential to know that Instant Triple Talaq's practice was not a traditional custom like the
other form of values followed from Islam's inception. It was a custom that was added later on by
some deviation from the original methods. So the Apex Court's Hon'ble Judges were right in
their decision when they declared this practice as not an essential religious practice of the Shariat
Law.

It is pertinent to note that the Hon'ble Apex Court, by declaring the observance of Talaq- e-
Biddat unconstitutional, has protected the Muslim women's fundamental rights who have been
facing the wrath of this practice. By this judgment, the Judiciary made the country get rid of
another social problem prevalent in the society.

But the fact that instances of Triple Talaq being reported even after this judgment shows the lack
of legal awareness amongst the public. So once a judgment is passed, legal awareness about it
should be spread across, and people should be made aware of not following the said order.
Everyone should be educated about their rights as well as duties and responsibilities.