TRIPLE TALAQ IN INDIA

Triple talaq also known as talaq-e-biddat, instant divorce and talaq-e-mughallazah, was a form of Islamic
divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic schools of
jurisprudence. It allowed any Muslim man to legally divorce his wife by uttering the word talaq three times
in oral, written or, more recently, electronic form

The use and status of triple talaq in India has been a subject of controversy and debate. Those questioning
the practice have raised issues of justice, gender equality, human rights and secularism. 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. On 22 August 2017, the Indian Supreme Court deemed instant triple
talaq (talaq-e-biddah) unconstitutional. Three of the five judges in the panel concurred that the practice of
triple talaq is unconstitutional. The remaining two declared the practice to be constitutional while
simultaneously asking the government to ban the practice by enacting a law. India's Muslim neighbours are
among 23 countries that have banned triple talaq already. The Quran established means to avoid hasty
divorces. It prescribes two waiting periods of three months before the divorce is final in order to give the
husband time to reconsider his decision. On 30 July 2019, Parliament of India declared the practice of Triple
Talaq as illegal, unconstitutional and made it punishable act from 1 August 2019 which is deemed to be in
effect from 19 September 2018.

'Triple talaq' is a customary practice, prevalent among Muslims, that dissolves a marriage when the
husband says the word 'talaq' thrice. The custom is criticized for being unilateral and biased against
women, and is banned in 22 countries of the world. It has been challenged in the Supreme Court  of India
as well. Several women's rights groups have also spoken out against the practice and its ill effects,
especially on the women of the Muslim community. On the other hand, the Muslim Law Board has
consistently said that triple talaq is a 'personal law' and thus, cannot be modified by the Central
Government. The issue has given rise to a heated debate on the need for a Uniform Civil Code in India.
The Supreme Court on August 22, 2017 declared the practice of triple talaq as unconstitutional and stated
that it was vocative of Article 14 and 21 of the Indian Constitution. The three judges on the 5 judge
Constitution bench decided against triple talaq while two ruled in favor. Justices Kurian Joseph, R F
Nariman and U U Lalit said triple talaq needs to go while CJI JS Khehar and Justice Abdul Nazeer backed
triple talaq.

On December 15, 2017 during the winter session of Indian parliament the lower house, Lok Sabha,
cleared the Muslim Women (Protection of Rights on Marriage) Bill, 2017, to make the practice of triple
talaq a criminal offence. As per the proposed law, the victim in such case can seek the custody of her minor
children as well as maintenance from her husband by approaching a magistrate after she has registered a
complaint with the police. The Law further states that triple talaq in any form— spoken, in writing or by
electronic

The government on January 28, said it would ensure the passage of the triple talaq Bill in the Budget
session of Parliament starting on January 29, and asserted that it would talk to various parties for a
consensus on the issue.

Legal ban on triple talaq

The Muslim women Act was 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 made
triple talaq illegal in India on 1 August 2019, replacing the triple talaq ordinance promulgated in February
2019. It stipulates that instant triple talaq (talaq-e-biddah) in any form – spoken, written, or by electronic
means such as email or SMS – is illegal and void, with up to three years in jail for the husband. Under the
new law, an aggrieved woman is entitled to demand maintenance for her dependent children’s.

The Government first introduced the Act to Parliament in 2017. MPs from Rashtriya Janata Dal, All India
Majlis-e-Ittehadul Muslimeen, Biju Janata Dal, All India Anna Dravida Munnetra Kazhagam, Indian
National Congress and All India Muslim League opposed the bill. Several Opposition lawmakers called for
it to be sent to a select committee for scrutiny. It was passed on 28 December 2017 by the Lok Sabha, or
lower house of the Indian Parliament, where the ruling BJP held the majority of seats.

In a major political win for the Modi government, the Rajya Sabha, or upper house of Parliament, where the
ruling NDA did not have a majority, approved the bill (99–84) on 30 July 2019 after a lengthy debate.

The bill followed a 2017 Supreme Court ruling that the practice of instant triple talaq is unconstitutional and
a divorce pronounced by uttering talaq three times in one sitting is void and illegal. Muslim triple talaq
petitioner Ishrat Jahan welcomed the Bill when it was presented. Also Arif Mohammad Khan welcomed and
appreciated the decision taken by Government by Parliament of India. The triple talaq bill proposed by the
previous Modi government lapsed when an election was called and the Lok Sabha was dissolved before the
bill was sent to the Rajya Sabha for approval.
 JUDGEMENT

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 multipath 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 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 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.

According to The Economist, "Constitutional experts said [the judges] legal reasoning fell short of upholding
personal rights over religious laws", whilst noting "The judgment did not ban other forms of Muslim divorce
that favour men, only the instant kind."

Legislation
The Muslim Women (Protection of Rights on Marriage) Bill, 2017

The Narendra Modi Government formulated a bill and introduced it in the Parliament after 100 cases of
instant triple talaq in the country since the Supreme Court judgement in August 2017.[66] On 28 December
2017, the Lok Sabha passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017.[67] The bill
was planned to make instant triple talaq (talaq-e-biddah) in any form — spoken, in writing or by electronic
means such as email, SMS and WhatsApp illegal and void, with up to three years in jail for the husband.
MPs from RJD, AIMIM, BJD, AIADMK, and AIML opposed the bill, calling it arbitrary in nature and a
faulty proposal, while Congress supported the Bill tabled in the Lok Sabha by law minister Ravi Shankar
Prasad. 19 amendments were moved in the Lok Sabha but all were rejected.

On the grounds that practice of instant triple talaq was continuing unabated despite the SC striking it, the
government issued an ordinance to make the practice illegal and void.

The provisions of the ordinance are as follows:

 Instant triple talaq remains cognizable with a maximum of three years imprisonment and a fine.
 Only complaint with the police by the wife or her blood relative will be recognised.
 The offence is non-bailable i.e. only a Magistrate and not the police can grant bail. Bail can be
granted only after hearing the wife.
 Custody of the minor children from the marriage will go to mother.
 Maintenance allowance to the wife is decided by the magistrate.
The ordinance was cleared by the President on 19 September 2018.

The Muslim Women (Protection of Rights on Marriage) Bill, 2018

As the triple talaq ordinance of 2018 was to expire on 22 January 2019, the government introduced a fresh
bill in the Lok Sabha on 17 December 2018 to replace the ordinance.

The provisions of the bill are as follows:

 All declaration of instant triple talaq, including in written or electronic form, to be void (i.e. not
enforceable in law) and illegal.
 Instant triple talaq remains cognisable offence with a maximum of three years' imprisonment and a
fine. The fine amount is decided by the magistrate.
 The offence will be cognisable only if information relating to the offence is given by the wife or her
blood relative.
 The offence is non-bailable. But there is a provision that the Magistrate may grant bail to the
accused. The bail may be granted only after hearing the wife and if the Magistrate is satisfied with
reasonable grounds for granting bail.
 The wife is entitled to subsistence allowance. The amount is 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 offence may be compounded (i.e. stop legal proceedings and settle the dispute) by the
Magistrate upon the request of the woman (against whom talaq has been declared).
The bill was passed by Lok Sabha on 27 December 2018.However, the bill remained stuck in the Rajya
Sabha due to the opposition's demand to send it to a select committee.

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019

As the triple talaq ordinance of 2018 was to expire on 22 January 2019 and also because the triple talaq bill
of 2018 could not be passed in the parliament session, the government repromulgated the ordinance on 10
January 2019. On 12 January 2019, the president of India Ram Nath Kovind approved the ordinance of
2019.