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Triple Talaq

In Muslim marriage a marriage can be dissolve by:

  1. Husband: Talaq–e-sunnat, Talaq-e-biddat
  2. Wife
  3. Mutual Consent
  4. Judicial Process
Talaq-e-sunnat means a divorce based on traditional form and it is of two types:- Talaq-e- Ahsan
  1. Talaq-e-hasan
    Talaq-e-ahsan means Husband announces and separation of 90 days is given if then they are not agrees to live together than it dissolved. It is most approved form of dissolution of Muslim marriage. One time talk is allowed.
    Talaq-e-hasan means a divorce is pronounce three times announce by husband and settlement can be done within 90 days.
  2. Talaq-e-biddat means it is innovative form of dissolution of marriage and in this husband only pronounce the divorce thrice and the marriage is dissolved through notice, whatsapp , mail etc.

·
India is not only country who considers Triple Talaq a bad solution or way of revoking the marriage . There are a lot more countries even Muslim countries which consider it as bad way of dissolution of Marriage.

Shyra Bano v/s union of India

Shyra Bano & Rizwan Ahmed were married from the last 15 years. But in 2015 Shyra Bano got triple talaq from his husband. And in against of the same Shyra Bano applies a writ petition in Supreme court & challenge 3 practices of the Muslim law.

This case of Triple Talaq is based on the following:

  1. Instant triple talaq:- It is as same as the Talaq-e-biddat.
  2. Nikah halala:- If a husband & wife get divorce and if they want to remarry again then Muslim law has a rule for the same. The women first have to marry another man and then takes divorce from him then she has to perfrom iddat period and then only she can remarry again.
  3. Polygamy :- In this Muslim man are allowed to have more than one wife.
So this three were challenged by the Shyra Bano.

In February 2017 to hear this petition the 5 judge bench was their to settle this.
  • Judges:
    CJI Jagdish khehar, Justice Abdul Nazeer, Justice Kurian Joseph, Justice Rohinton Nariman, Justice UU Lalit
  • Parties:
    Petitioner- Shyra Bano, Respndent- Rizwan Ahmed, Union of India, Ministry of law and service, Ministry of women and child development, Ministry of minority affair, National commission for women, All India Muslim personal law Board

SC had said to both parties that he wants written statement on these three issues.

On that All India Muslim Personal Law has said this three are the part of Muslim religion and SC have no right to interfare between the religious matters. It means these matters are outside the jurisdiction of Supreme Court.

After receiving the written statement of all the parties SC had made two main issues:-
  1. Whether Instant Triple Talaq is an essential religious practice of Islam. ( Than SC can’t challenge it )
    Same issue was raised in sabrimala issue in that SC had to ban women is not an essential religious practice & SC had ban in that practice.
  2. Whether the practice of Instant Triple Talaq is voilative of Fundamental rights.

Judgment:
Part 1:
Judges - CJI Jagdish Khehar and Justice Abdul Nazeer

The practice of Triple Talaq is part of Muslim law & through Article 25 every citizen has the right to religion means through Article 25 this practices are protected. And though they are protected SC can’t interfere in them.
  1. Is Triple Talaq is valid or not?
  2. Is it should get banned or not?
This can’t be decided by judiciary. It can be done by Parliament.

Judges have suggested that on Triple Talaq judiciary is applying 6 months stay on it. And in this 6 month the parliament had to decide that Triple Talaq is valid or not.
  1. Instant Triple Talaq is a part of Muslim personal law.
  2. Protected under Article 25.
  3. Judiciary should not interfere.
  4. Let parliament make a call.

Part 2
Judges- Justice Rohinton Nariman and Justice UU lalit
Whether laws are before the making of constitution or not. They all should have to constitute through Fundamental Rights.

Yes, Article 13 doesn’t interfere in personal law and we can’t challenge personal law.

But ITT practice was not challenged in Article 13 it was challenged in article 14, 15, 21 & 25.

Article 14- if anything is Arbitrary & it is violating fundamental rights than SC had the power to held it unconstitutional.
  1. Instant Triple Talaq
  2. Arbitrary
  3. Violates the rights of women.
  4. Article 14 =/= Arbitrariness.

Part 3
Judge -Justice Kurian Joseph
He said Instant Triple Talaq practice is UN- ISLAMIC.
Because in traditional Muslim Talaq for Arbitration
Reconciliation
Settlement
To do all this things there is scope in it.

So 2 judges said judiciary can't interfere in ITT and 3 judges said ITT practice violates fundamental rights and it is unconstitutional.

Instant Triple Talaq = Illegal


And said center to make a law to the same.

Legal development-
  • August 2017
    SC declared TRIPLE TALAQ as illegal
  • 2017
    Repeated instance of violations
  • December 2017
    Lok Sabha passes Muslim (protection of rights on marriage) bill 2017 Lapses in Rajya Sabha
  • September 2018
    Cabinet clears ordinance
    Triple talaq was punishable offence
    Punishment -3 years
  • July 2019
    Bill passes in Lok Sabha and Rajya Sabha and receives assets of President.

Main elements of the Triple Talaq Bill:

  1. Offence & penalty
    The Act declares Triple Talaq whether in written or in electronic form to be void & illegal.
    The act makes Triple Talaq a cognizable offense with imprisonment upto 3years and fine.

  2. Who can file a complain
    Only the wife (married women) against whom Talaq has been declared or any person related to her by blood or marriage can file the case on her behalf.

  3. Bail
    Bail may be granted by magistrate but only after hearing the women and then, if the magistrate thinkers that there are reasonable grounds fpr grating bail.
    Offence can be compounded by the magistrate an the request of the women.

  4. Allowance & custody
    The woman is entitled to seek subsistence allowance for herself and her dependent children.
    Also the women is entitled to seek custody of her minor children.
    So , At the end Supreme court held Triple Talaq unconstitutional.

Parliament has passed a bill and declare it as punishable and cognizable offence.

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