4 Triple Talaq

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4.Triple Talaq
Triple Talaq is a form of marriage dissolution in Muslim Law,

whereby a husband can give the divorce to his wife by stating
Talaq three times in one row. The presence of wife is not
required, she can be given Talaq without assigning valid reason.
The term "Talaq" refers to the repudiation of marriage by husband
under Muslim law. The practice of triple Talaq has been prevailing
since ancient times in India.
Historically, the rules of divorce were governed by the Sharia, as
interpreted by traditional Islamic jurisprudence, although they
varied depending on the legal school. In Modern Times, as
personal status (family) law were codified. They generally
remained within the orbit of Islamic Law, but control over the
norms of divorce shifted from traditional jurists to the state.
Triple Talaq is 1400 year old practice among Sunni Muslim. This
is not mentioned in the Quran and the Sharia law. As per Quran,
marriage is intended to be unbounded in time the relationship
between the spouses should ideally be based on love and the
important decision concerning both spouses should be made by
mutual consent.
When the marital harmony cannot be attained, the Quran allows
and advises the spouse to bring the marriage to an end although
this decision is not to be taken lightly and the community is called
upon to intervene by appointing arbiters from two families to
attempt a reconciliation. The Quran establishes two further
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, and a man who takes an
oath not to have sexual intercourse with his wife, which would
lead to automatic divorce, is allowed a four month period to break
his oath.
The Quran modified the gender inequality of divorce practices
that existed in pre-Islamic Arabia, although some patriarchal
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elements and the others survived and flourished in later

centuries. Before Islam, divorce among the Arabs was governed
by unwritten customary law, which varied according to region and
tribe its observance depended on the authority of the individual
and groups involved.
In the opinion of classical jurist variously classified

pronouncement of Talaq as forbidden and reprehensible unless it
was motivated by a compelling cause such as impossibility of
cohabitation due to irreconcilable conflict, though they did not
require the husband to obtain court approval or provide a
justification. The jurist imposed certain restrictions on valid
repudiation for example the declaration must be of sound mind
and not coerced. Upon Talaq, the wife is entitled to the full
payment of Mahr if it had not already been paid.
he husband is obligated to financially support her until the end of

the waiting period or the delivery of her child, if she is pregnant. In
addition she has a right to child support and any past due
maintenance, which Islamic law requires to be paid regularly in
the course of marriage. It may involve "Triple Talaq" i.e. the
declaration of Talaq repeated three times or a different formula
"you are Haram for me".
In the legal school view is that a triple Talaq performed in a single

meeting constituted a "major" divorce , while other classified it as
a "minor" it reflects pre-Islamic divorce customs rather than
Quranic Principles, though legally valid form of divorce in
traditional Sunni jurisprudence, Muhammad denounced the
practice of triple Talaq, and the second Caliph Umar punished
husbands who made use of it.
In the light of above, triple Talaq should be banned. It is Un-

Quaranic, goes against the spirit of the constitution and most
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importantly it is unjust and unhuman. After being divorced the

woman becomes homeless overnight, left destitute with no help
for children or most women are traumatised for life and find it
difficult to recover from the shock. Hence, the Indian Government
took steps against the practice of triple talaq when in October
2016, Justice Anil R Dave and Justice Adarsh Kumar Goel while
delivering a judgement onPrakash and Others v. Phulavati and
Others, observed that Muslim women are subjected to
discrimination.
There is no safeguard against arbitrary divorce and second

marriage by her husband during currency of the first marriage,
resulting in denial of dignity and security to her. They pointed out
that the matter needs consideration by the supreme court, as the
issue relates not merely to a policy matter but to fundamental
rights of women under Articles 14, 15 and 21 and international
conventions and covenants.
Hence, they directed the court to register a suo motu PIL and put
up before the appropriate Bench as per orders of Hon’ble the
Chief Justice of India to look at the matter of Triple Talaq, Nikah
Halala and polygamy. Thereafter, Mrs. Shayara Bano of
Allahabad, who was divorced from her husband through Triple
Talaq filed a writ petition under article 32. In her submission, she
wrote"
This practice of Talaq-E-Biddat (unilateral Triple-Talaq) which

practically treats women like chattel is neither harmonious with
the modern principles of human rights and gender equality, nor
an integral part of Islamic faith, according to various noted
scholars. Muslim women have been given Talaq over Skype,
Facebook and even text messages. There is no protection
against such arbitrary divorce.
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Muslim women have their hands tied while the guillotine of

divorce dangles, perpetually ready to drop at the whims of their
husbands who enjoy undisputed power."She also mentioned that
the legislature has failed to ensure the dignity and equality of
women in general and Muslim women in particular especially
when it concerns matters of marriage, divorce and succession.
In the same case, AG Mukul Rohatgi observed that"Gender

equality, gender equity and a life of dignity and status is an
overreaching constitutional goal."Adding that the practices
which are under challenge, namely, triple Talaq, Nikah Halala and
polygamy are practices which impact the social status and dignity
of Muslim women and render them unequal and vulnerable qua
men belonging to their own community women belonging to other
communities and also Muslim women outside India.
Article 25 of the Constitution which confer the right to practice,

preach and propagate religion are "subject to the provisions of
Part III", which means that it is subject to Articles 14 and 15 which
guarantee equality and non-discrimination. In other words, under
our secular Constitution, the right to the freedom of religion is
subject to and in that sense, subservient to other fundamental
rights such as the right to equality, the right to non-discrimination
and the right to a life with dignity.
Consequently, the court after daily hearings came to the

conclusion with majority of 3:2 that the triple Talaq is
unconstitutional and directed the central government to make
legislation within 6 months i.e. by 22nd Feb 2018. Complying with
the orders of the apex court the central government drafted the
bill "Muslim Women Protection of Rights on Divorce) Bill 2017
states that the Muslim husband will be punished with 3 years of
imprisonment if he gives the instant divorce. The bill is yet to be
passed by Parliament.
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1

Triple Talaq is a form of marriage dissolution in Muslim Law,

elements and the others survived and flourished in later

In the opinion of classical jurist variously classified

he husband is obligated to financially support her until the end of

In the legal school view is that a triple Talaq performed in a single

In the light of above, triple Talaq should be banned. It is Un-

importantly it is unjust and unhuman. After being divorced the

There is no safeguard against arbitrary divorce and second

This practice of Talaq-E-Biddat (unilateral Triple-Talaq) which

Muslim women have their hands tied while the guillotine of

In the same case, AG Mukul Rohatgi observed that"Gender

Article 25 of the Constitution which confer the right to practice,

Consequently, the court after daily hearings came to the

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