JAMIA MILLIA ISLAMIA

TOPIC :
TRIPLE TALAQ AND ITS ADVERSE
EFFECT ON SOCIETY
NAME OF UNIVERSITY JAMIA MILLIA ISLAMIA
NAME OF FACULTY FACULTY OF LAW
NAME OF THE STUDENT KASHISH FATMA
STUDENT ID
PROGRAMME B.A.LL.B(HONS)
TERM SEMESTER-1
BATCH 2020-21
SUBJECT SOCIOLOGY
ASSIGNMENT NO: 01
SUBMITTED TO PROF. RASHEED C A.
DATE OF SUBMISSION 7/03/2021

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher PROF. RASHEED C A.,
who gave me the golden opportunity to do this wonderful project of Sociology ‘TRIPLE
TALAQ AND ITS ADVERSE EFFECT ON SOCIETY’ , who also helped me in completing
my project. I came to know about so many new things. I am really thankful to them. Secondly
I would also like to thank my parents and freinds who helped me a lot in finalizing this
project within the limited time frame.

Kashish Fatma

B.A.LL.B(HONS) 1ST SEM

 TRIPLE TALAQ AND ITS ADVERSE
EFFECT ON SOCIETY

INTRODUCTION
BACKGROUND
JUDGEMENT
EARLIER CASE RELATING TO TRIPLE TALAQ AND MAINTENANCE
CONFLICT OF OPINIONS
● OPPOSITION TO TRIPLE TALAQ
● ARTICLE 14 OF INDIAN CONSTITUTION STATES
● SUPPORT OF TRIPLE TALAQ
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRAIGE BILL), 2019
CASES EVEN AFTER THERE HAS BEEN A BAN ON TRIPLE TALAQ
CRIMINALISATION OF TRIPLE TALAQ
CRIMINALISATION WILL PREVENT RECONCILIATION
CONCLUSION
BIBLIOGRAPHY/REFERENCE LINK
INTRODUCTION

Making triple talaq unconstitutional is one of the most historic moves taMken by the Indian
parliament.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,especilly
hanafi sunni islamic school of jurisprudence.
The most heated topic at present in india is the issue of triple talaq in islam wherein,the
debate has involved the government of india and the supreme court of india,and is connected
to the debate about uniform civil code (article 44 )states that uniform civil code for the
citizens the state shall endeavour to secure for the citizen a uniform civil code throughout the
territory of India.
Triple talaq became illegal in India on 1 August 2019, replacing the triple talaq ordinance
promulgue slim 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.
In traditional Islamic jurisprudence , triple talaq is considered to be a particularly disapproved
but legally valid form of divorce.Muslim marraiges in India are considered to be a private
matter, unless the couple decided to register their marriage under the Speacial Marraige 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.

JUDGEMENT
The case was called Shayara Bano v. Union of India and 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 rights 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-
biddah),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 tp govern marriage and
divorce in the Muslim comunity. 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.

EARLIER CASE RELATING TO TRIPLE TALAQ AND

MAINTENANCE
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
judgement favouring maintenance given to an aggrieved divorced Muslim women. 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 Waqt Board. It was seen as discriminatory as it denied right to basic
maintenance available to non-Muslim women under secular law.

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 “regressie”. The petitioners
asked for section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, to be
scrapped, describing it as being Article 14 of the constitution (equality before the law).
ARTICLE 14 OF THE INDIAN CONSTITUTION STATES:
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 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 Persoanal Law Board (AIMPLB), a
non-govenmental body taht 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 practice of
triple talaq. It also warned those who divorce 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.

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRAIGE) 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.
● OFFENCE AND PENALTY : The Bill makes 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.

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 was 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.
CRIMININALISATION OF TRIPLE TALAQ

Criminalisation is employed where other means (e.g., civil litigation, administrative

solutions, non-criminal sanctions, etc.) fail. Professor Faizan Mustafa has already pointed out
that; criminalisation is called the “ultima ratio” of legislative policy. Thus, an act is declared
to be declared that there have been 60 odd pronouncements of triple talaq following the
Judgment. The Law Minister in Parliament stated that over 100 pronouncements have been
made. But he tends to forget that those 100 utterances have no legal effect. Thus, even if true,
mere pronouncements are no ground to introduce a penal statute with harsh consequences.

CRIMINALISATION WILL PREVENT RECONCILIATION

It is interesting to note that in Shayara Bano, both Justice Joseph and Justice Nariman
declared instantaneous triple talaq to be bad because it did not provide for an attempt at
reconciliation. The judgment put efforts to reconcile at the heart of the divorce process. Such
efforts are rendered improbable, if not impossible by the Triple Talaq Bill. One cannot
envisage a situation where a man will continue a marriage after having served a prison term,
for his attempt to end the relationship in the first place. In effect, the bill only serves to
weaken the marital institution, which the Supreme Court had sought to protect.

CONCLUSION

Thus, it can be concluded that making Triple Talaq as unconstitutional or void was a big step
taken by both legislature and judiciary. It was a dream come true for the women who were
sufferers of its misuse. It was used by people as a toy and used to type “talaq” word 3 times
through any means be it oral, written or electronic form and thus turned their customs
according to themselves without taking into consideration the rights of women. “Talaq” or
“Divorce” as in Hindu law is to be the last resort and cannot be taken merely on a trivial wear
and tear of the marriage. Also, the recent trends show that even after being declared as
unconstitutional and void people are still using it illegally.

REFERENCES

https://timesofindia.indiatimes.com/topic/Triple-Talaq

https://en.wikipedia.org/wiki/Triple_talaq_in_India

https://www.prsindia.org/billtrack/muslim-women-protection-rights-marriage-bill-2019

https://en.wikipedia.org/wiki/The_Muslim_Women_(Protection_of_Rights_on_Marriage)

https://indiankanoon.org/doc/115701246/

http://www.lawyersclubindia.com/articles/Triple-Talaq-in-India-8428.asp