Human rights essentially indicates equality and no discrimination, but truth be
told, it has not been exactly implemented in that manner. It has been recognized
and in fact, preached all throughout that women are inferior to men and can
never be equal to them. Even in present times and to this day, women are not
given their deserved position in society.
They may have shown their excellence
and caliber in various fields but the mindset that they are inferior to men
still prevails. Hence, issues on women rights are gaining a lot of importance.
In the field of Muslim personal law, the practice of Talaq-e-biddat or the
triple Talaq has been a reason for oppression of Muslim women for ages.
practice breaks down the sacred institution of marriage based on the whims of a
husband. The Constitution of India guarantees freedom and equality based on
gender and religion, but this practice effectively violates the constitutional
norms. However, with the case of Shayara Bano v. Union of India
, the Supreme
Court has conclusively struck off the practice of triple Talaq as
Following such a judgment, the Muslim Women (Protection of
Rights on Marriage) Bill was introduced in 2017 which makes the practice a
cognizable and a non-bailable offence and shall also sentence any such
perpetrator to three years of imprisonment. This project seeks to throw light on
the practice of triple Talaq and how the rights of Muslim women have been
enhanced and given importance through the annulment of the practice.
Marriage under the Muslim law is an institution which has always been pious and
sacred since it is considered to be an act of ibadat (worship). Since marriage
is considered to be sacred, its breakdown is not accepted in the society.
The Talaq-e-biddat, also known as the ‘triple Talaq’ is one of the modes of
breakdown of a marriage under the Muslim law. It takes place through the
pronunciation of the word Talaq three times consecutively by the husband. In
order to constitute a valid Talaq, the words must clearly indicate the intention
of the husband to breakdown the marriage.
Triple Talaq has always been a source of oppression for the Muslim women mainly
because of its irrevocable nature. The Lok Sabha passed the Muslim Women
(Protection of Rights on Marriage) Bill, 2017 which declared the practice as
null and void and made it a punishable offence. As the Bill proposed that the
mere pronouncement of Talaq thrice would be a cognizable and non-bailable
offence, there was widespread opposition regarding the same on the ground that
there would be a possibility of its misuse.
Triple Talaq became illegal in India on 1 August 2019. The Muslim Women
(Protection of Rights on Marriage) Bill, 2019 was passed on 26 July 2019 which
made instant triple Talaq in any form such as spoken, written, or by electronic
means void, with an imprisonment for up to three years for any such
perpetrator. Since ages, Muslim women have been fighting for gender equality
under the Islamic law that governs the right related to marriage, divorce and
property rights. Since the Quran does not support a patriarchal system, this has
encouraged Muslim women to actively fight for their rights relating to marriage,
divorce and inheritance.
Different Forms Of Talaq
- Ahasan Talaq:
It consists of a single pronouncement of divorce made in
the period of tuhr, or at any time, if the wife is free from menstruation,
followed by abstinence from sexual intercourse during the period of iddat. The
requirement that the pronouncement be made during a period of tuhr applies only
to oral divorce and does not apply to Talaq in writing. Similarly, this
requirement 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 is that divorce
can revoked at any time before the completion of the period of iddat, thus
hasty, thoughtless divorce can be prevented. The revocation may be expressly or
impliedly. Thus, if before the completion of iddat, the husband resumes
cohabitation with his wife or says I have retained thee the divorce is
revoked. Resumption of sexual intercourse before the completion of period of
iddat also results in the revocation of divorce.[2
- Hasan Talaq:
In this the husband is required to pronounce the formula of Talaq three times during three successive tuhrs. If the wife has crossed the age
of menstruation, the pronouncement of it may be made after the interval of a
month or thirty days between the successive pronouncements. When the last
pronouncement is made, the Talaq, becomes final and irrevocable. It is necessary
that each of the three pronouncements should be made at a time when no
intercourse has taken place during the period of tuhr.
It came into vogue during the second century of Islam.
It has two forms:
- The triple declaration of Talaq made in a period of purity, either in
one sentence or in three;
- The other form constitutes a single irrevocable pronouncement of divorce
made in a period of tuhr or even otherwise.
This type of Talaq is not recognized by the Shias.
This form of divorce is condemned. It is considered heretical, because of its
irrevocability. In India, this type of Talaq is prohibited in India due to
various judicial pronouncements.
In Ila, the husband takes an oath not to have sexual intercourse
with his wife. Followed by this oath, there is no consummation for a period of
four months. After the expiry of the fourth month, the marriage dissolves
irrevocably. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce
without order of the court of law. After the expiry of the fourth month, the
wife is simply entitled for a judicial divorce. If there is no cohabitation,
even after expiry of four months, the wife may file a suit for restitution of
conjugal rights against the husband.
In this mode the husband compares his wife with a woman within his
prohibited relationship e.g., mother or sister etc. The husband would say that
from today the wife is like his mother or sister. After such a comparison the
husband does not cohabit with his wife for a period of four months. Upon the
expiry of the given period Zihar is complete. According to Shia law, Zihar must
be performed in the presence of two witnesses.
After the expiry of fourth month, the wife has following rights:
Where the husband wants to revoke Zihar by resuming cohabitation within the
mentioned period, the wife cannot seek judicial divorce.
- She may go to the court to get a decree of judicial divorce;
- She may ask the court to grant the decree of restitution of conjugal
It can be revoked if:
- The husband observes fast for a period of two months, or;
- He provides food at least sixty people, or;
- He frees a slave.
- Divorce by mutual agreement
Khula and Mubarat:
They are two forms of divorce by mutual consent but in either of them, the wife
has to part with her dower or a part of some other property. The word khula, in
its original sense means to draw such as taking off one’s clothes or garments.
It is said that the spouses are like clothes to each other and when they take
khula each takes off his or her clothes, i.e., they get rid of each other.
Although consideration for Khula is essential, the actual release of the dower
or delivery of property constituting the consideration is not a condition
precedent for the validity of the khula. Once the husband gives his consent, it
results in an irrevocable divorce.
The husband has no power of cancelling the
‘khula’ on the ground that the consideration has not been paid. The
consideration can be anything; usually it is mahr, the whole or part of it. But
it may be any property though not illusory. In Mubarat, the outstanding feature
is that both the parties desire divorce.
Thus, the proposal may emanate from
either side. In Mubarat both, the husband and the wife, are happy to get rid of
each other. Among the Sunnis when the parties to marriage enter into a Mubarat
all mutual rights and obligations come to an end. The Shias insist that the word
mubarat should be followed by the word talaaq, otherwise no divorce would
They also insist that the pronouncement must be in Arabic unless the
parties are incapable of pronouncing the Arabic words. Intention to dissolve the
marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is
irrevocable. Other requirements are the same as in khula and the wife must
undergo the period of iddat and in both the divorce is essentially an act of the
parties, and no intervention by the court is required.
- Divorce by wife:
The divorce by wife can be categorized under three categories:
Talaaq-i-tafweez or delegated divorce is recognized among both,
the Shias and the Sunnis. The Muslim husband is free to delegate his power of
pronouncing divorce to his wife or any other person. He may delegate the power
absolutely or conditionally, temporarily or permanently. A permanent delegation
of power is revocable but a temporary delegation of power is not. This
delegation must be made distinctly in favour of the person to whom the power is
delegated, and the purpose of delegation must be clearly stated.
If the husband levels false charges of adultery against his wife then this
amounts to character assassination and the wife has got the right to ask for
divorce on this grounds. Such a mode of divorce is called Lian.
However, it is only a voluntary and aggressive charge of adultery made by the
husband which, if false, would entitle the wife to get the decree of divorce on
the ground of Lian. Where a wife hurts the feelings of her husband with her
behaviour and the husband hits back an allegation of infidelity against her,
then what the husband says in response to the bad behaviour of the wife, cannot
be used by the wife as a false charge of adultery and no divorce is to be
granted under Lian.
- By Dissolution of Muslim Marriages Act 1939
Section 2 of the Act runs there under:
A woman married under Muslim law shall be entitled to obtain a decree for
divorce for the dissolution of her marriage on any one or more of the following
grounds, as analyzed:
That the whereabouts of the husband have not been known for a period of four
years: If the husband is missing for a period of four years the wife may file a
petition for the dissolution of her marriage. The husband is deemed to be
missing if the wife or any such person, who is expected to have knowledge of the
husband, is unable to locate the husband.
Section 3 provides that where a wife
files petition for divorce under this ground, she is required to give the names
and addresses of all such persons who would have been the legal heirs of the
husband upon his death. The court issues notices to all such persons appear
before it and to state if they have any knowledge about the missing husband. If
nobody knows then the court passes a decree to this effect which becomes
effective only after the expiry of six months. If before the expiry, the husband
reappears, the court shall set aside the decree and the marriage is not
That the husband has neglected or has failed to provide for her
maintenance for a period of two years: It is a legal obligation of every husband
to maintain his wife, and if he fails to do so, the wife may seek divorce on
this ground. A husband may not maintain his wife either because he neglects her
or because he has no means to provide her maintenance. In both the cases the
result would be the same.
The husband’s obligation to maintain his wife is
subject to wife’s own performance of matrimonial obligations. Therefore, if the
wife lives separately without any reasonable excuse, she is not entitled to get
a judicial divorce on the ground of husband’s failure to maintain her because
her own conduct disentitles her from maintenance under Muslim law.
husband has been sentenced to imprisonment for a period of seven years or
The wife’s right of judicial divorce on this ground begins from the
date on which the sentence becomes final. Therefore, the decree can be passed in
her favour only after the expiry of the date for appeal by the husband or after
the appeal by the husband has been dismissed by the final court.
husband has failed to perform, without reasonable cause, his marital obligations
for a period of three years:
The Act does define marital obligations of the
husband. There are several marital obligations of the husband under Muslim law.
But for the purpose of this clause husband’s failure to perform only those
conjugal obligations may be taken into account which is not included in any of
the clauses of Section 2 of this Act.
That the husband was impotent at the time
of the marriage and continues to be so:
For getting a decree of divorce on this
ground, the wife has to prove that the husband was impotent at the time of the
marriage and continues to be impotent till the filing of the suit. Before
passing a decree of divorce of divorce on this ground, the court is bound to
give to the husband one year to improve his potency provided he makes an
application for it. If the husband does not give such application, the court
shall pass the decree without delay.
If the husband has been insane for a period
of two years or is suffering from leprosy or a virulent venereal disease:
husband’s insanity must be for two or more years immediately preceding the
presentation of the suit. But this act does not specify that the unsoundness of
mind must be curable or incurable. The Act provides that this disease must be of
incurable nature. It may be of any duration.
Moreover even if this disease has
been infected to the husband by the wife herself, she is entitled to get divorce
on this ground. That she, having been given in marriage by her father or other
guardian before she attained the age of fifteen years, repudiated the marriage
before attaining the age of eighteen years, provided that the marriage has not
That the husband treats her with cruelty:
- Habitually assaults her or makes her life miserable by cruelty of
conduct even if such conduct does not amount to physical ill-treatment, or
- Associates with women of ill-repute or leads an infamous life, or
- Attempts to force her to lead an immoral life, or
- Disposes of her property or prevents her exercising her legal rights
over it, or
- Obstructs her in the observance of her religious profession or practice,
- If he has more than one wife, does not treat her equitably in accordance
with the injunctions of the Holy Quran.
- Irretrievable Breakdown of Marriage:
Divorce on the basis of irretrievable breakdown of marriage has come into
existence in Muslim Law through the judicial interpretation of certain
provisions of Muslim law. In 1945, in Umar Bibi vs. Muhammad Din, it was
argued that the wife hated her husband so much that she could not possibly live
with him and there was total incompatibility of temperaments. On these grounds
the court refused to grant a decree of divorce. But twenty five years later, in Neorbibi
vs. Pir Bux, the court granted the divorce.
Origin Of Talaq-E-Biddat Or Triple Talaq:
The pre-Islamic Arabian state was supposed to be a time of obliviousness and
disarray. This is where man never carried on with a legitimate life. It is just
with the proclamation of the Prophet that the circumstances changed. In this
period, a man and a woman could marry any number of spouses. The Prophet set out
the arrangement of marriage and separation. He halted the training that existed
in pre-Islamic Arabian state. Consequently, the Prophet could never uphold this
act of triple Talaq which is irreversible. Biddat implies development and
henceforth, it is an enhanced type of separation which was not laid down by the
Today with innovation, current devices being utilized for the
correspondence of triple Talaq, the circumstance has gotten more regrettable.
This act of triple Talaq started with the Arabs when they vanquished Syria,
Egypt and Persian districts. The men got pulled in to female network of the
Syrian and Egyptian district. The Syrian and Egyptian ladies were prepared to
acknowledge them just in the event that they articulated Talaq in three sittings
to their spouses at home.
The Muslim men knew about the act of Talaq and
realized that this sort of Talaq was void. In this way, they expected that they
could marry their spouses moreover. Expecting this, they consented to separate
from their spouses with proclamation of triple Talaq.
This is the inception of
the training. This occurred during second Caliph Umar's period. At the point
when he got the updates on the abuse of Talaq by the men, he proclaimed such
Talaq to be official, with the goal that men despise both the ladies. This was
only a brief measure received to rebuff the men who deceived their family.
Triple Talaq From The View Of The Indian Constitution:
Article 25 of the Constitution ensures complete freedom to practice and
propagate any religion. Like all other Fundamental Rights, it is dependent upon
limitations and does not ensure strict practices that can adversely influence
the government assistance of residents. Hence, Article 25 is superseded by
Article 14, which ensures the Right to Equality as triple Talaq denies a Muslim
woman’s uniformity under the watchful eye of the law.
Article 25 is additionally
liable to Article 15 (1) which expresses that the State will not victimize any
resident on grounds just of religion, race, standing, sex. Since triple Talaq
does not work in the kindness of the Muslim women, it disregards Article 15 (1)
of the Constitution. However, area 2 of the Muslim Personal Law (Shariat)
Application Act of 1937 perceives triple Talaq as a legal right, bringing it
under the ambit of Article 13 of the Constitution. Article 13 characterizes
'law' also, says that all laws, encircled before or after the commencement of
the Constitution, will not be violative of the major rights.
The Landmark Judgment:
In the landmark case of Shayara Bano And Ors V. Union Of India And Ors
, Shayara Bano was married for 15 years. In 2016, her husband divorced her through
Talaq–e-biddat (triple Talaq). This is an Islamic practice that permits men to
arbitrarily and unilaterally effect instant and irrevocable divorce by
pronouncing the word ‘Talaq’ (Arabic for divorce) three times at once in oral,
written or, more recently, electronic form.
Ms.Bano argued before the Supreme
Court of India that three practices – Triple Talaq, Polygamy, and Nikah Halala (The
practice requiring women to marry and divorce another man so that her previous
husband can re-marry her after Triple Talaq) – were unconstitutional.
Specifically, she claimed that they violated several fundamental rights under
the Constitution of India (Constitution) namely, Articles 14 (equality before
the law), Article 15(1) (prohibition of discrimination including on the ground
of gender), Articles 21 (right to life) and Article 25 (freedom of religion).
Her petition underscored how protection against these practices has profound
consequences for ensuring a life of dignity. Further, it asserted that failure
to eliminate de jure (formal) and de facto (substantive) discrimination against
women including by Non-State actors, either directly or indirectly, violates not
only the most basic human rights of women but also violates their civil,
economic, social and cultural rights as envisaged in international treaties and
The Supreme Court bench, comprising of five judges, delivered its verdict on the
Triple Talaq case, terming the practice void and illegal. The petitions, filed
by five Muslim women, challenged the validity of Triple Talaq (divorce) in the
The five-judge bench , comprising of Chief Justice JS Khehar and Justices Kurian
Joseph, RF Nariman, UU Lalit and Abdul Nazeer, delivered a split verdict, with
the CJI being in dissent. "Triple Talaq may be a permissible practice, but it
retrograde and unworthy. Since triple Talaq is instant, it is irrevocable and
the marital tie gets broken. It is violative of Article 14, the right to
equality," they said
Here are some of the significant points raised by the judges:
Justice Kurian Joseph: There are four sources of Islamic law. Only the Quran is
the first source of law, therefore sources other than the Quran are a supplement
to what is in it. Therefore, there can be nothing more than what is written in
the Quran. Quran attributes permanence to matrimony.
Triple Talaq is against the tenets of Quran, and hence, it violates the Sharia.
The purpose of the 1937 Act is to declare Shariat as the only law governing
Justice UU Lalit: endorsed the view of Justice Kurian.
Justice Rohinton Fali Nariman: It is a disapproved form of divorce. Even the
Hanafi law says triple Talaq is sinful. 1937 Act recognizes triple Talaq and
therefore does not violate Article 13. Triple Talaq won’t fall within confines
of Article 13(1) and 25. It is not possible for the court to fold his hands when
petitioners come to court. Court has to declare whether practice is legal or
CJI Khehar: Triple Talaq integral to Islam in India and part of personal law.
Triple Talaq is important to Sunnis of Hanafi school, has to be accepted as
important to their culture. Triple Talaq does not violate Article 25, 14 And
21 of the Constitution. Practice being a constituent of personal law, it can't
be set aside on the grounds of constitution morality by judicial intervention.
Legislative intervention needs to be followed in respect of triple Talaq, if it
has to be set aside.
Justice S Abdul Nazeer endorsed the view of CJI Khehar.
Muslim Women (Protection Of Rights On Marriage) Bill, 2019:
The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was presented
in the Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on
June 21, 2019. The Bill makes all statement of Talaq in written or electronic
structure, to be void and unlawful. It characterizes Talaq as Talaq-e-biddat or
some other comparative type of Talaq articulated by a Muslim man bringing about
unalterable separation. Talaq-e-biddat alludes to the training under Muslim
individual laws where declaration of the word 'Talaq' threefold at a time by a
Muslim man to his better half outcomes in a moment and unalterable separation.
The Bill makes a statement of Talaq as a cognizable offense, drawing in as long
as three years detainment with a fine.
The offense will be cognizable just if
data identifying with the offense is given by:
- the wedded lady (against whom Talaq has been announced), or
- any individual identified with her by blood or marriage.
The Bill gives that the Magistrate may allow bail to the denounced. The bail
might be conceded simply subsequent to hearing the lady against whom Talaq has
been articulated, and if the Magistrate is fulfilled that there are sensible
justification for allowing bail.
The offense might be intensified by the Magistrate upon the solicitation of the
lady against whom the Talaq has been proclaimed. Intensifying alludes to the
methodology where the different sides consent to stop legitimate procedures, and
settle the contest. The terms and states of the aggravating of the offense will
be dictated by the Magistrate.
A Muslim lady against whom Talaq has been
proclaimed is qualified for look for resource remittance from her better half
for herself and for her needy youngsters. The measure of the recompense will be
dictated by the Magistrate. A Muslim woman against whom such Talaq has been
proclaimed is entitled to ensure custody of her minor kids. The manner of such
custody shall be controlled by the Magistrate.
Hence, it tends to be presumed that the creation of Triple Talaq as unlawful or
void was a major step taken by both the governing body and legal executive. It
was like an ultimate dream come true for all the women who were victims of its
abuse. It was utilized by individuals as a toy and use of the Talaq
multiple times through any methods, be it oral, composed or electronic structure
was rampant and it subsequently transformed the customs as indicated by
themselves without mulling over the privileges of the Muslim women. Talaq
or separation as in Hindu law is to be the final retreat and cannot be taken
just on an inconsequential mileage of the marriage. Likewise, the ongoing
patterns show that even after being proclaimed as unlawful and void, individuals
are as utilizing it wrongfully.
- Eesha Shrotriya and Shantanu Pachauri, Criminalisation Of Triple Talaq:
Dissecting The Constitutional And Socio-Legal Aspects (Sep.20, 2020, 8:05
- Chand Bi vs. Bandesha, AIR 1960 Bom 121
- Mst. Salena Bi vs. Sheikh Gulla, AIR 1973 M.P. 207
- ILR (1994) 25 Lah
- AIR 1971 Ker 261
- Dr Aradhana Nair, Muslim Women (Protection Of Rights On Marriage) Bill,
2018: An Analysis Of The Criminalisation Of Triple Talaq In India
(Sep.24,2020,9:37 AM), https://www.pramanaresearch.org/gallery/prj-p437.pdf
- R.Gattaiah, Triple Talaq: The Indian Constitution (Sep.24, 2020, 9:41
- Writ Petition (C) No.118 of 2016
- HT?Correspondent, Five Supreme Court judges who passed the verdict on
triple Talaq (Sep.24, 2020, 10:07 AM),
- Ministry: Law and Justice, The Muslim Women (Protection of Rights on
Marriage) Bill, 2019 (Sep.24, 2020, 10:14 AM), https://www.prsindia.org/billtrack/muslim-women-protection-rights-marriage-bill-2019