Family Law Assignment

PRIYANSHU TAWER
BA LLB 2ND YEAR 3RD SEM
04116503819

Triple Talaq
Synopsis-

 Introduction
 Legal ban on triple talaq
 Practice
 Background
 Opinions
 Judgement
 Legislation

Introduction-

Triple Talaq also known as talaq-e-biddat, instant divorce and talaq-e-mughallazah

(irrevocable divorce), 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 (the Arabic word for
"divorce") 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. Three
of India's neighbouring countries — Pakistan, Bangladesh and Sri Lanka - are among the 23
countries worldwide that have banned triple talaq. 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, the Parliament of
India declared the practice of Triple Talaq illegal and unconstitutional and made it a
punishable act from 1 August 2019.

Legal Ban on Triple Talaq

The Muslim Women (Protection of Rights on Marriage) Act, 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 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-biddat) 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.

The Government first introduced the bill to Parliament in 22 August 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 and 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.

Practice

Triple talaq is a form of divorce that was practised in Islam, whereby a Muslim man could
legally divorce his wife by pronouncing talaq (the Arabic word for divorce) 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. The man did not need to cite any cause for
the divorce and the wife need not have been present at the time of pronouncement. After a
period of Iddat, during which it was ascertained whether the wife is pregnant, the divorce
became irrevocable. 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. While the practice 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 nikah halala. 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.

The practice of talaq-e-biddat is said to have been around since the period of Caliph Umar,
more than 1400 years ago. The Supreme Court described it as "manifestly arbitrary" and said
that it allows a man to "break down a marriage whimsically and capriciously". Instant divorce
is termed talaq-e-bid'at. A hadith by An-Nasa'i stated that Muhammad had accused a man of
mocking the Quran by uttering divorce thrice in one go. Talaq pronounced thrice
simultaneously from Muhammad to the first two years of Umar's reign as caliph was only
considered as a single divorce according to Sahih Muslim. The latter however allowed it,
upon seeing the people did not observe the iddah, but also had men using such divorce
flogged.

Abu Hanifa and Malik ibn Anas considered it irrevocable despite its illegality. Al-Shafi'i
considered it permissible but Ahmad ibn Hanbal considered it to be invalid. 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.

The All India Muslim Personal Law Board (AIMPLB), a non-governmental organisation, had
told the Supreme Court that women could also pronounce triple talaq, and could execute
nikahnamas that stipulated conditions so that the husbands could not pronounce triple talaq.
According to AIMPLB, "Sharia grants right to divorce to husbands because Islam grants men
a greater power of decision-making."

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.

The sharia is open to interpretation by the ulama (class of Muslim legal scholars). The ulama
of Hanafi Sunnis considered this form of divorce binding, provided the pronouncement was
made in front of Muslim witnesses and later confirmed by a sharia court. However, the ulama
of Ahl-i Hadith, Twelver and Musta'li persuasions did not regard it as proper. Scholar Aparna
Rao states that, in 2003, there was an active debate among the ulama.

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.

Opinions

 Opposition
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).
On 13 May 2017, during the hearings before its final judgment, the Supreme Court
described instant triple talaq as the "worst form of marriage dissolution". It noted that
the custom is banned in the Muslim-majority countries of Saudi Arabia, Morocco,
Afghanistan, and Pakistan. On 8 December 2016, the Allahabad High Court observed
 in a ruling that the practice of instant triple talaq was unconstitutional and violated the
rights of Muslim women.
In March 2017, over 1 million Indian Muslims, a majority of whom were women,
signed a petition to end instant triple talaq. The petition was started by the Muslim
Rashtriya Manch, an Islamic organisation affiliated to the Rashtriya Swayamsevak
Sangh. The petitioners against instant triple talaq have given evidence showing how
instant triple talaq is simply an innovation that does not have much to do with Quranic
beliefs. This is supported by the interpretation of Quranic text by many Islamic
scholars, historical evidence and legal precedent.
On 10 May 2017, senior cleric Maulana Syed Shahabuddin Salafi Firdausi denounced
triple talaq and nikah halala, calling them un-Islamic practices and instruments to
oppress women. The practice was also opposed by Hindu nationalists and Muslim
liberals. Congress leader Kapil Sibal tweeted: "Absence of consensus in Court makes
it more difficult to forge consensus within communities. Glad that Court set aside a
'sinful' practice." However, Sibal also made statements supporting triple talaq (see the
following section).
Over the year women organisations like Bharatiya Muslim Mahila Andolan and
several others opposed this practice in particular and further demanded more reforms
in Muslim personal laws.
 Support
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. The AIMPLB's lawyer Kapil Sibal had said that though instant talaq can be
thought of as a sin by some, but that "setting the validity of customs and practices of a
community is a slippery slope". Kapil Sibal cited Article 371A to state that even the
Constitution does intend to protect matters of practice, tradition and customs of
communities. However, Sibal has also made statements opposing the practice (see
previous section).
The All India Muslim Personal Law Board (AIMPLB) defends the practice. In April
2017, citing a report prepared by Muslim Mahila Research Kendra in co-ordination
with Shariah Committee for Women, AIMPLB claimed that Muslims have a lower
rate of divorce compared to other religious communities, countering the argument that
 Muslims have the highest number of divorces in the country due to the practice of
triple talaq. It also claimed that it had received forms from 35 million Muslim women
across the country, supporting shariat and triple talaq.
AIMPLB issued a code of conduct in April 2017 regarding talaq in response to the
controversy over the practice of triple talaq. It 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. It also
stated that it should be delivered in three sittings with a gap of at least one month
each.

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 multifaith 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 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. On 28
December 2017, the Lok Sabha passed The Muslim Women (Protection of Rights on
Marriage) Bill, 2017. 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.

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

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.[15] 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.[81][82] On 12 January 2019, the president
of India Ram Nath Kovind approved the ordinance of 2019.

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

The Muslim Women (Protection of Rights on Marriage) Act, 2019 became law on 31 July
2019, replacing the earlier ordinance.