On 22 August 2017 the honourable supreme court of India in Shayara Bano vs Union
of India, with the majority of 3:2 declared Triple Talaq or Talaq- e- bidat as
In Islam the marriage is considered as a contract between the husband and wife.
Accordingly, this contract may be dissolved at any time. It is like partnership
"at will". As partners are free to dissolve the partnership at any time, same
way, either of the spouses is free to decide for dissolution of marriage.
Therefore, the Muslim marriage can be dissolved either at the instance of
husband, with or without intervention of court (called talaq), or at the
instance of wife, with the consent of husband or with the intervention of court
(called Khula or Judicial Divorce) or at the instance and desire of both
spouses, without intervention of court.
The modes of divorce in Islam
Divorce (talaq) by husband:
Divorce by common consent
Talaq-e-Ahsan is a single pronouncement in the period of
Tuhr, (that is, purity, when the woman is free from her menstrual courses),
followed by abstinence from sexual intercourse during that period of purity as
well as during the whole period of Iddat. The requirement of purity is not
applicable when the wife has passed the age of menstruation, or the parties have
been away from each other for a long time or when the marriage has not been
consummated. The advantage of this form of talaq is that it can be revoked at
any time before the completion of the period of Iddat and thus hasty and
thoughtless divorces can be prevented. The period of Iddat is three months from
the date of declaration or if the woman is pregnant until delivery. The
revocation may be by express words or by conduct.
This is also an approved form but less approved than Ahsan
form. It consists of three successive pronouncements during three consecutive
periods of purity (Tuhr). If the wife has crossed the age of menstruation, then
the pronouncement of talaq may be made after the interval of 30 days between the
successive pronouncements. When the third pronouncement is made, the talaq
becomes final and irrevocable. In Talaq-e-Hasan when husband declares talaq
third time the marriage stands dissolved irrevocably and the remarriage becomes
impossible unless wife lawfully marries another husband and that other husband
lawfully divorces her after the marriage has been actually consummated.
In this form three pronouncements are made in a single Tuhr,
either in one sentence, or in three sentences, where pronouncement of the word
‘talaq’ thrice in one sitting by a man to his wife results in an instant and
irrevocable divorce. The moment the pronouncement is made the marriage stands
It has two forms:
- Khula (Redemption)
- Mubara’at (Mutual freeing)
A. Khula - The word Khula literally means to put off.
The essential conditions of Khula are:
- Common consent of Husband and Wife;
- some return or consideration from the wife to husband, if she desires to
separate her husband through such divorce.
B. Mubara'a (Mutual Freeing) The word mubara
denotes the act of freeing each
other by mutual consent. The offer in a mubara'a divorce may proceed from the
wife, or it may proceed from the husband but once it is accepted, the
dissolution is complete and it operates as a single irrevocable divorce.
the Sunnis when the parties to marriage enter into mubara’a, all mutual rights
and obligations come to an end. The Shia law is stringent. It requires that both
the parties must find the marital relationship to be irksome in a bonafide
The main distinction between a Khula and mubara’a is that in the former the
aversion is on the side of the wife and she desires a separation but in the
later the aversion is mutual and both sides desire separation.
Secondly, in a divorce by Khula some consideration must be given by the wife to
the husband for her release from the marital tie. It is in effect an offer from
the wife for her release on payment of a compensation. On the other hand, in a
divorce by mubara’a no compensation is given by the wife to the husband for her
release from the marital tie because both are happy at the prospect of getting
rid of each other.
Supreme court judgement (Shayara Bano vs Union of India)
The Hon'ble Supreme Court through a Constitution bench comprising of 5 Judges
from different religions - Justice Kurian Joseph, a catholic, Justice UU Lalit,
a Hindu and Justice RF Nariman, a Parsi, Chief Justice Khehar, a Sikh and
Justice Abdul Nazeer, a Muslim, declared Triple Talaq or Talaq-e Biddat as
unconstitutional by a 3:2 majority. Justices Kurian, Lalit and Nariman delivered
the majority judgement while Chief Justice Khehar and Justice Nazeer dissented
with the majority.
Chief Justice Khehar And Justice Abdul Nazeer; (Minority Judgment)
The minority bench observed that:
we are satisfied, that this is a case which presents a situation where this
Court should exercise its discretion to issue appropriate directions under
Article 142 of the Constitution. We therefore hereby direct, the Union of India
to consider appropriate legislation, particularly with reference to Talaq-e-Biddat
We hope and expect that the
contemplated legislation will also take into consideration advances in Muslim
personal law - Shariat
, as have been corrected by legislation the world
over, even by theocratic Islamic States. When the British rulers in India
provided succor to Muslims by legislation, and when remedial measures have been
adopted by the Muslim world, we find no reason, for an independent India, to lag
While dissenting the majority view the Minority bench observed as following;
The bench held that the practice of Triple talaq is arbitrary in nature by
observing the following: "It is clear that this form of Talaq is manifestly
arbitrary in the sense that the marital tie can be broken capriciously and
whimsically by a Muslim man without any attempt at reconciliation so as to save
it. This form of Talaq must, therefore, be held to be violative of the 393
fundamental right contained under Article 14 of the Constitution of India.
our opinion, therefore, the 1937 Act (Muslim Personal Law Shariat Application
Act), insofar as it seeks to recognize and enforce Triple Talaq, is within the
meaning of the expression "laws in force" in Article 13(1) and must be struck
down as being void to the extent that it recognizes and enforces Triple Talaq
Since we have declared Section 2 of the 1937 Act to be void.
The Muslim Women (protection of rights on marriage) Act, 2019.
The act 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 act 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
- the married woman (against whom talaq has been declared), or
- any person related to her by blood or marriage.
It provides that the Magistrate may grant bail to the accused. The bail may be
granted only after hearing the woman, 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).The terms and conditions of the
compounding of the offence will be determined by the Magistrate.
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.
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
Triple talaq is a violation of the Sharia and so it is forbidden and innovation
by all the jurists and school of jurisprudence in Islam. Islam prohibits dowry.
People demand it and it is paid. Islam puts the entire responsibility of
incurring all expenses for the marriage on the men but people insist on dumping
them on the woman and she and her family accept this. the above judgement
provide grant some kind of relief for muslim women and is quite in keeping with
holy Quran pronouncements on talaq. Quran emphasis on justice, not on