Triple Talaq in India: Background, Court Cases and Recent Updates

Triple Talaq or talaq-e-biddat (instant divorce) or talaq-e-mughallazah (irrevocable divorce) is one of the methods used in Islam to end the marriage. It is one of the methods of divorce in Islam. In India, the practice was held unconstitutional, arbitrary and not a part of Islam by Supreme Court in August, 2017. The Supreme Court also asked the government to enact a law to ban this practice by law. Consequently, the Central Government introduced Muslim Women (Protection of Rights on Marriage) Bill, 2017 in Parliament on 28 December, 2017. The Bill is yet to become a law.

Types of Talaq in Islam

There are mainly three different types of divorce in Islam as follows:

Talaq-e-Ahsan

In this, the husband gives talaq to wife in a single sentence in state of purity (tuhr) and waits for period of iddat. This type of talaq is revocable during the period of iddat. After iddat, it is irrevocable.

Talaq-e-Hassan

In this type of divorce, there should be three successive pronouncements of talaq at three successive tuhrs (in case of menstruating women) or consecutive intervals of 30 days (in case of non-menstruating women). Such divorce can be revoked anytime before the third pronouncement. After third pronouncement, it becomes irrevocable.

Talaq-e-biddat / talaq-e-mughallazah

The word Bidat means innovation. This mode of Talaq was invented later (under Umayyads) and was mainly to suit the patriarchy. In this, the three pronouncement of word Talaq are made successively during a single Tuhr and in same instant. Such a Talaq becomes irrevocable instantly.

This type of divorce can be cancelled only when the divorced woman first marries another man, consummates the marriage, and gets divorced from him. This is called practice of Halala.

Practice of Triple Talaq and Controversies

Practice of Triple Talaq is in vogue in India. The pronouncement of word Talaq thrice is either oral or written. In recent times, many men used electronic means such as phone, mobile, SMS and even social media to pronounce Talaq thrice and this end the marriage instantly. Due to this reason, the practice of Triple Talaq has been controversial.

Various Interpretations of Triple Talaq

The practice of Triple Talaq (Talaq-e-bidat) is not mentioned in Quran or Hadees and is not as per Sharia law. Most of the Muslim legal scholars disapprove the practice and consider Talaq-e-Hassan or Talaq-e-ahasan as legal and proper way to end the contract of marriage. Some scholars argue that saying triple talaq in one sitting itself is null and void and there should be a period of three months {three menstrual cycles} between each Talaq. Nevertheless, this practice has been legally recognized in many countries and is particularly practiced in few countries such as Saudi Arabia. At the same time, it has been banned by law in many Islamic countries including Pakistan, Bangladesh, Tunisia, Indonesia, Algeria, Iran, Iraq etc. Around the world, this practice is valid in Sunnis only; most Shia nations have held it invalid.

Legal Journey of the Triple Talaq Issue

• Private matters of Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937, which is commonly known as Muslim Personal Law. Prior to this act, the personal and religious matters of Muslims were governed by an Anglo-Mohammedan Law, enacted by British.
• Marriage is also a private matter and is governed by Muslim Personal Law unless the marriage is registered under Special Marriage Act of 1954.
• Since it was the divorced woman who suffered most, the practice of Triple Talaq was challenged via Public Interest Litigations / other cases in Supreme Court as well as High Courts.
• The issue of triple talaq came in public prominence in 1985 in Shah Bano case. The victimised wife, besides seeking alimony from her husband who gave ger triple talaq, also challenged the long-standing practices of talaq-e-bidat, nikah halala and polygamy. The matter came to a close with the passing of Muslim Women (Protection of Rights on Divorce Act), which made it necessary for the husband to pay alimony to his wife 90 days after divorce.
• The first notable judicial pronouncement came in 2002 in the Shamim Ara vs State of UP Though Talaq was not held invalid in this case, yet, the Justice RC Lahoti said that talaq must be pronounced on cogent plausible and reasonable grounds. This verdict also said that prior to talaq, the spouses must appoint two arbitrators, who would make all efforts for reconciliation and resolution. Once all efforts having failed, talaq shall come into effect. This verdict though did not invalidate the triple talaq yet, tried to give it a process.
• In 2002 only, the Aurangabad bench of Bombay High Court invalidated the triple talaq by giving reference from Quran in Dagdu Pathan vs Rahimbi In this case, the court declared that a Muslim husband can not repudiate the marriage at will and has to prove that all stages – conveying the reasons for divorce, appointment of arbitrators and conciliation proceedings between the parties were followed.
• These judgments served the basis of several later rulings and thus invalidated the instant talaq.
• In December, 2016, the Allahabad High Court observed in a rule that this practice is unconstitutional.
• In May, 2017, the Supreme Court also described it as worst form of marriage dissolution.

Stance of Muslim Personal Law Board

The fiercest opposition to this issue comes from All-India Muslim Personal Law Board. It has expressed its disquiet over a petition requesting the Supreme Court to determine the constitutional validity of triple talaq. AIMPLB is a non-governmental body and it supervises the application of Muslim Personal Law.

Supreme Court Verdict

The five judge bench of Supreme Court examined the case (Shayara Bano Vs. Union of India) with two specific questions:

• Does the practice of Triple talaq enjoy  protection of the constitution and is safeguarded by Article 25(1) in the constitution that guarantees all the fundamental right to “profess, practice and propagate religion”?
• Is the practice of Triple Talaq is an essential feature of Islamic belief and practice?

The SC gave verdict by a 3-2 majority. The essence of the 397 page verdict was as follows:

• Instant Triple Talaq is unconstitutional and arbitrary.
• It violated Islamic law while being used as a tool to oppress the women.
• The bench also asked the Central Government to enact a law / legislation in next six months to govern marriage and divorce in the Muslim community.
• Until the government formulates a law, there would be an injunction against husbands pronouncing Instant triple talaq on their wives.

Thus, the Supreme Court order banned the instant talaq while not touching other modes of divorce.

The Muslim Women (Protection of Rights on Marriage) Bill, 2017

As per the directions of the Supreme Court, the central government drafted a Muslim Women (Protection of Rights on Marriage) Bill, 2017 and introduced it in Parliament on 28 December 2017. The bill was passed by Lok Sabha on the same date. The Bill is not to be passed in Rajya Sabha before becoming an act.