Divorce is described as the legal dissolution of a marriage. As a result, the
divorce process is difficult for everyone involved, even the divorcing spouses.
Talaq, as the urdu term for divorce, refers to the practise of divorcing one's
spouse three times in one sitting, sometimes referred to as Triple Talaq. If a
female is not menstruating or in a condition of purity, she is considered to be
innovated (or wicked) (tuhr).
Talaq is a contentious subject in Muslim personal law, which the author explores
in light of current developments. Articles 14, 15, and 21 are given a reasonable
interpretation in order to put an end to this discriminatory practise.
Additionally, the researcher aimed to provide a global perspective on the Quran-based
practise of Triple Talaq. Triple Talaq was declared illegal as a result of
Shayara Bano v. Union of India and Ors
The researcher's objective is to offer a critical assessment of the 'Triple
Talaq' controversy. It is thought that this will educate law students about
Muslim personal law's divorce regulations.
The source material for the purpose of this study is majorly collected from the
secondary sources such as articles, books, journals, committee reports,
newspaper reports, statutory provisions and rules of law, legal doctrines,
guidelines published by regulatory authorities etc.
However, divorce is viewed as a necessary evil rather than a sin in Islam. "Of
all permissible acts, Talaq is the most detestable to God," one Hadith
(professor's saying) states.
Talaq is an Arabic word that translates as "Repudiation or Untying (women
from marriage ties
)". Once the word 'Talaq' is pronounced, the divorce
process instantly begins, and the wife is not obliged to be present. Talaq, as
stated in Moonshee Buzloor Rahim v. Laleefutoon Nisa
, is an arbitrary act
committed by the Muslim husband, who may divorce his wife at any time, with or
without cause, under Muslim Law. He is not required to be there with his wife in
order to say Talaq. While marriage is a civil contract that can be dissolved if
the parties fail to fulfil the contract's declared purpose, it is critical to
respect and honour marriage, which should last as long as possible.
"Talaq," or divorce at the husband's request, has two definitions in Islam: "Talaq-al-sunnah"
and "Talaq-e-biddat." Is 'Talaq al-sunnah' a variant of 'Hasan', in which three
pronouncements are made during three consecutive "Tuhrs" (periods of the wife's
purity) and Talaq is irreversible after the final pronouncement? Additionally,
there is the option of 'Ahsan,' which requires a single Talaq to be delivered
during the wife's 'Tuhr,' or the interval between her menstrual cycles, and that
the divorce becomes official after three 'Tuhrs.'
When it comes to divorce, the 'Talaq-e-biddat', or 'Triple Talaq,' is regarded
an atypical procedure. Mohammedan jurists regard it as one of the most sinful
acts, and it is illegal in the United States. According to Ameer Ali, the Omeyad
Monarchs adopted 'Talaq-e-biddat' in the second century of the Muhammadan
Triple Talaq happens when the word 'Talaq' is said simultaneously, or during the
same meeting, or on another occasion during the same tuhr period.
In terms of divorce, Islam accords equal rights to husband and wife because it
views marriage as a civil contract. When the husband initiates the divorce, it
is referred to as "Talaq," when the wife initiates it (as was the case following
the Mussalman Law of Divorce reforms), it is known to as "Khula," and when both
parties start it, it is referred to as "Mubaaraab."
Quran and Triple Talaq
In terms of the Quran and Triple Talaq, there is no indication in the Quran that
a single Triple Talaq involves three Talaqs. The Holy Quran mandates a
two-divorce limit to avoid unpredictable and fitful recurrent separations and
reunions, as mentioned in verses 229-230. While reconciliation is possible
following a second divorce, if the same couples divorce a third time, the
divorce is final and cannot be reversed until the woman marries another guy and
he divorces her.
Marrataan (twice) signifies repetition of the term in this verse "Talaq' or to
grant divorce with the number of times it has been uttered specified.
Talaq, Talaq, Talaq, or the "three Talaqs" "When they are spoken or pronounced,
they are deemed to be three. Rather than repeating the term "Talaq," "marrataan"
implies to give Talaq a second time.
When the Arabic word "marrataan" refers to "on another occasion after the
first," as Shams Prizada argues in his book "Triple Talaq in the Light of the
Quran and Sunnah," it never refers to verbatim repetition of a statement.
Talaq-e-Bidat is regarded as the most unethical and inventive form of divorce
because it contradicts both the letter and spirit of the Quran and was
prohibited by the Prophet (PBUH).
The Holy Quran's verse '230' urges the husband not to destroy marital bonds if
he experiences an outburst of passion or rage. Al Ghazaalee once declared that
divorce is permissible in Islam only for legitimate grounds and in extreme
circumstances of necessity, not for the intention of causing distress or
harassment to the wife.
"The impression that a Muslim Husband may divorce his wife based on his whims is
a significant misunderstanding of the Islamic Institute of Divorce," Mohammed
Ali said in his book "Religion of Islam."
Although this is the situation at the moment, the majority of Triple Talaq cases
(reported) were the consequence of an angry outburst or petty disagreement on
the part of the spouse. Islam regards Talaq-e-Bidat as the most immoral and
created form of divorce, as it violates the Quran and is prohibited by the
Prophet (PBUH). As a result, in light of Quranic texts, it is vital that Triple
Talaq is not considered an authentic part of Muslim Personal Laws, as it
contradicts the Holy Quran's explicit mandates.
Following decades of Muslim women's protests, the Islamic tradition of Muslim
men instantly divorcing their wives has been declared unlawful, null, and void.
The case was petitioned to the Supreme Court by seven victims and a women's
group. Male religious officials, in particular, have opposed efforts by
progressive Muslim women to eliminate the practise of forcing men to divorce
According to campaigners, a lack of fundamental understanding among India's
Muslim population has made it more difficult for women to organise legal and
social campaigns opposing this practise. Attempts to save the marital tie in the
event of an immediate Triple Talaq are impossible and will never occur, leaving
the divorced lady to fend for herself.
Could the fact that a husband filed for divorce without notifying his wife in
writing constitute grounds for divorce as of the day the statement was
submitted? This issue came up in the other case, Shamim Arsa v. Uttar Pradesh
According to the judge's opinion, a husband's written declaration of divorce
does not constitute Talaq, and hence it cannot be ruled that Talaq takes effect
when his spouse makes the written statement of divorce public. 'No ancient
Muslim holy book or scripture contains a reference in its text to a form of
divorce that has been sanctioned by the High Court and the Family Court,' the
judge stated in her dicta.
Neither an affidavit nor a pleading has been brought to our attention that
provides that the date on which the wife learns of the husband's statement in
the copy of his affidavit or pleading served on her that he has already divorced
her on an unspecified or specified date will be considered the date of the
effective divorce "The Allahabad High Court, which hears cases involving Muslim
personal law and is home to approximately 19 percent of India's Muslim
population, has ruled strongly in favour of Muslim women on the contentious
issue of Triple Talaq.
In October 2015, a Supreme Court panel considering a case involving the Hindu
Succession Act requested the establishment of a separate court to explore
whether Muslim women face gender discrimination in divorce proceedings. Mukul
Rohatgi, a lawyer, was enlisted to assist in legal challenges to the validity of
Triple Talaq. The administration has been outspoken in its opposition to Triple
A Constitutional Bench comprised of five judges was convened in May 2017 to
consider the case. The court first spoke with the All-India Muslim Personal Law
Board (AIMPLB) to see whether they would allow women to reject Triple Talaq.
In another instance, Masroor Ahmed v. State, the position of Muslim women under
so-called customary law is judged revolting. As a result, every Muslim woman's
organisation has condemned customary law for allegedly breaching their human
rights. They desire the application of Shariah (Islamic personal law) on them as
well. They will be elevated to their proper position upon the establishment of
Muslim Personal Law. If this bill is passed, it will have a tremendously
beneficial effect on society by clearly defining the public's rights and
As these remarks demonstrate, Indian judges are no longer willing to submit
their sense of justice to the whims of Islamic clerics and political
correctness. In August 2017, the court declared the practise unlawful due to the
AIMPLB's objections, which argued that it dates back 1,400 years.
Thus, the Supreme Court of India's judgement in Shayaro Bano v. Union of
must be held to violate Article 14 of the Indian Constitution. Because
the 1937 Act recognises and enforces Triple Talaq, it falls under the definition
of "laws in operation" as specified in article 13 and must therefore be repealed
because it is invalid for recognising and enforcing Triple Talaq. The learned
Attorney General and those who backed him contended that Section 2 of the Muslim
Personal Law Act, 1937 discriminated against non-Muslims in these circumstances,
but we see no reason to repeat that conclusion, as it has already been
determined to be arbitrary.
Through the practise of triple Talaq, Muslim men have absolute ability to
divorce their wives without their consent. This is a discriminatory practise
that deprives women of financial stability, legal protection, and social
support. They are guaranteed equality and a decent existence under Articles 14
and 21 of the Constitution, respectively.
The Constitution suffered a significant blow to fundamental liberties when the
Supreme Court of India confirmed the constitutionality of Triple Talaq in A.S.
Parveen Akthar v. Union of India
. Individuals have a right to privacy, as
stated in Articles 14, 15, and 21 of the constitution, and this obviously falls
short of that. Equal opportunity is a cornerstone of India's democratic system.
According to the Supreme Court, equal opportunity for all is a fundamental
pillar of the Constitution. Article 15(1) of the Indian Constitution prohibits
state discrimination on the basis of religion, race, sex, or any combination of
these factors. Talaq in this form is a violation of Article 15 since it
discriminates against women based on their religion and sexual orientation.
According to Article 21 of the Constitution, a person's right to life and
liberty may be denied only by law. g By diverging from the conventional divorce
arrangement, the Triple Talaq jeopardises the integrity of Article 21.
After the Supreme Court struck down the centuries-old practise of Triple Talaq
in a landmark judgement, the centre has taken a step toward criminalising it.
Legislators in India's Rajya Sabha are still debating the bill, which was passed
by the Lok Sabha but has not yet been adopted by the upper house due to the fact
that it criminalises divorce even if the wife is not evicted or separated from
Following the Supreme Court's unprecedented decision to prohibit the
centuries-old practise of Triple Talaq, the government has taken a step toward
criminalising this practise. Legislators in India's lower house of parliament
have passed the Talaq-e-biddat bill, however the upper house of parliament has
not yet ratified it due to concerns about some of the suggestions.
States are authorised by the constitution to take measures to improve women's
status. India has accepted a number of international conventions and protocols
aimed at ensuring women's equality in society. India has ratified the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Triple Talaq is prohibited by the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW). To comply with CEDAW, India must enact
legislation protecting Muslim women against unilateral divorce and granting them
the same rights as men.
There is an urgent need for comprehensive law that adheres to the directions.
Due to the progressive nature of Islamic law, a Uniform Civil Code may be based
on it. While the Quran declares that men and women are equal, traditional Muslim
society has reduced this to its own level and instituted several regulations
limiting women's rights.
The ULEMA recognises that women have not yet attained full equality, despite
progress in other countries. This inequity could be remedied for Muslim women if
the state adopts a Uniform Civil Code. When the Talaq law is repealed, the
entire community will have access to justice and equal treatment.
- Furqan Ahmad, Triple Talaq: An Analytical Study With Emphasis On
Socio-Legal Aspect (Regency Publications) (1994).
- Shayara Bano v. Union of India and Ors., Writ Petition (C) No. 118 of
- Furqan Ahmad, Triple Talaq: An Analytical Study With Emphasis On
Socio-Legal Aspect (Regency Publications) (1994).
- Ameer Ali, Mahommedan Law (1985).
- Abdullah Yusuf Ali, The Holy Quran: Text Translation And Commentary (Kitab
Bhawan, New Delhi, 14th ed. 2016).
- Asghar Ali Engineer, Islam Women And Gender Justice 134-135 (Gyan
Publishing House (1st ed. 2001).
- Anita Yadav, Article, Rights of Muslim Women: An Analysis of Indian
Muslim Personal Law, 1 Research Gate 3 (2015).
- Himanshi Dhawan, 92% of Muslim women in India want oral Triple Talaq to
go: Study, The National Network (June. 08, 2018, 02.18 PM IST), https://timesofindia.indiatimes.com/india/92-of-Muslim-women-in-India-want-oral-triple-Talaq-to-go-Study/articleshow/48565408.cms,
last accessed on March 21, 2022.
- Asghar Ali Engineer, Abolosing Triple Talaq what next? 39 Economic and
Political Weekly 3093, (2004).