“What is sinful under religion cannot be valid under the law”
– Supreme Court
Triple Talaq or talaq-e-biddat or talaq-e-mughallazah is the practice under which a Muslim man can divorce his wife by uttering “talaq” three times. Talaq-e-biddat means instant divorce and talaq-e-mughallazah means irrevocable divorce. Triple Talaq is a form of Islamic divorce which is used by Muslims in India, majorly by adherents of Hanafi Sunni Islamic schools of Jurisprudence. It allows any Muslim man to legally divorce his wife by uttering the word “talaq” (the Arabic word for “divorce”) three times in oral, written or, more recently, electronic form.
With the advent of technology, the concept of triple talaq has become easier to execute. There were several cases reported about husbands sending messages or voice notes or even pictures over Snapchat to utter talaq and divorce their wives. The right of such a divorce was without any reasonable grounds, and was vested only with the husband which made the wives silent victims.
Triple Talaq under Islamic Law
Mode of Divorce – Triple talaq is the practice in Islam under which a Muslim man could legally divorce his wife by pronouncing “talaq” three times. The pronouncement could be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or social media and the same could be done on his whimsy.
Revocability of Divorce – Under this system, it was not necessary or required of him to cite any reason for divorcing his wife. The revocability or irrevocability of divorce was decided based on the period of iddat where it was ascertained whether the wife is pregnant or not.
Waiting Period – In the recommended practice, a waiting period was required before each pronouncement of talaq, during which reconciliation was attempted. However, it had become common to make all three pronouncements in one sitting.
NikahHalala – While the practice of triple talaq was frowned upon, it was not prohibited. A divorced woman could not remarry her divorced husband unless she first married another man, a practice called NikahHalala. Until she remarried, she retained the custody of male toddlers and prepubescent female children. Beyond those restrictions, the children came under the guardianship of the father.
Triple talaq is not mentioned in the Quran. It is also largely disapproved by Muslim legal scholars. Many Islamic nations have barred the practice, including Pakistan and Bangladesh, although it is technically legal in Sunni Islamic jurisprudence. Triple talaq, in Islamic law, is based upon the belief that the husband has the right to reject or dismiss his wife with good grounds.
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.
The Shayara Bano Case
It is “manifestly arbitrary” to allow a man to “break down (a) marriage whimsically and capriciously”.
Shyara Bano, 35-year-old women from Uttarakhand was married to Rizwan Ahmad for 15 years until he gave her triple talaq in October 2015 after which she approached the Supreme Court in 2016. Shayara asked 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(equality before law), 15(non-discrimination), 21(right to life with dignity) and 25(right to freedom of conscience and religion) of the Indian Consitution.
The case was called Shayara Bano v. Union of India & Others. The bench that heard the controversial triple talaq case in 2017 was made up of multi-faith members. The five judges from five different communities are Chief Justice JS Khehar (a Sikh), and Justices Kurian Joseph (a Christian), RF Nariman (a Parsi), UU Lalit (a Hindu) and Abdul Nazeer (a Muslim).
The Supreme Court examined whether Triple talaq has the protection of the constitution—if this practice is safeguarded by Article 25(1) in the constitution that guarantees all the fundamental right to “profess, practice and propagate religion”. The Court wanted to establish whether or not triple talaq is an essential feature of Islamic belief and practice.
In a 397-page ruling, though two judges upheld the validity of instant triple talaq (talaq-e-biddat), the three other judges held that it was unconstitutional, thus barring the practice by a 3–2 majority. One judge argued that instant triple talaq violated Islamic law. The Hon’ble Supreme Court by majority decision held that merely because a practice has continued for long, it cannot remain valid if it has been expressly declared to be impermissible. Triple Talaq is not a part of religious practice and is not even in Quran. Article 25(2) says that if any of the religious practice violates the fundamental rights then it can be struck down by the Supreme Court.
The same thing has happened with the triple talaq and Supreme Court has held that the practice of triple talaq is derogatory and is a violation to Article 14 of the constitution as it is at pure discretion of male Muslim and removes any possibility of reconciliation between the parties.
“Triple talaq” is not integral to religious practice and violates constitutional morality”
The bench asked the central government to promulgate legislation within six months to govern marriage and divorce in the Muslim community. The court said that until the government formulates a law regarding instant triple talaq, there would be an injunction against husbands pronouncing instant triple talaq on their wives.
The Muslim Women (Protection of Rights on Marriage) Act, 2019
Following the verdict by the Supreme Court in 2017 in Shayara Bano case, the Loksabha tabled the triple talaq bill in December that sought to criminalize the act of pronouncing divorce thrice. The Muslim Women (Protection of Rights of Marriage) Bill, 2017, made instant triple talaq illegal and void and awarding a jail term of up to three years to the husband.
Calling it a historic step, Union Law Minister Ravi Shankar Prasad said the Bill “The Muslim Women (Protection of Rights on Marriage) Bill 2017 — can act as a deterrent since there are one hundred cases of triple talaq even after the landmark judgment of the Supreme Court delivered in August last year.” He further added that “whereas twenty-two Islamic countries, together with Pakistan and East Pakistan, had regulated instant triple talaq, there was no effective law in the Asian country.”
Triple talaq bill sought to criminalize the act of divorcing by pronouncing “talaq” thrice in an instance. The bill made it a non-bailable offense with imprisonment up to 3 years. The draft bill said, “Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or any other manner whatsoever, shall be void and illegal”. In addition to this, the bill provided for maintenance by the Muslim man to his wife and custody of minor children to the woman.
The bill was passed by Lok Sabha on 25 July 2019 and then by Rajya Sabha on 30 July 2019. The bill then received assent from the president of India Ram Nath Kovind, on 31st July 2019, which entitles an aggrieved woman to demand maintenance for her dependent children. It was subsequently notified as law in the Official Gazette on 31st July 2019. This law will be retrospectively effective from 19th September 2018.
The salient provisions of the act are –
- All declarations of instant triple talaq, including in written or electronic form, will be void (i.e. not enforceable in law) and illegal.
- Instant triple talaq remains a cognizable offense with a maximum of three years imprisonment and a fine. The amount of any fine is at the discretion of the magistrate hearing the case.
- The offense will be cognizable only if information relating to the offence is given by the wife or one of her blood relatives.
- The offence is non-bailable. However, there is a provision that the magistrate hearing the case may grant bail to the accused. The bail may be granted only after hearing the wife and if the magistrate is satisfied that there exist reasonable grounds for granting bail.
- The wife is entitled to a subsistence allowance. The amount is to be decided by the magistrate.
- The wife is entitled to seek custody of her minor children from the marriage. The manner of custody will be determined by the magistrate.
- The offense may be compounded (i.e. legal proceedings halted) by the magistrate upon the request of the woman against whom talaq has been declared.
This law is currently under challenge in the Supreme Court and the Delhi High Court. The petition in the apex court was moved by a Kerala-based Muslim organization, while the one in the Delhi High Court was filed by an advocate – both alleging that The Muslim Women (Protection of Rights on Marriage) Act, 2019 violates the fundamental rights of Muslim husbands.