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ASSESSING THE IMPACT OF TRIPLE TALAQ: A SOCIO-LEGAL STUDY

Family Law-I

Submitted by
Rohan Chatterjee
SM 0114043
2nd Year , 4th Semester

National Law University, Assam

Content

Table of Cases............................................................................................................. i
Table of Statutes.......................................................................................................... i
Table of Abbreviation................................................................................................... ii
Introduction............................................................................................................... 1
Aim......................................................................................................................... 2
Objective.................................................................................................................. 2
Review of Literature.................................................................................................... 2
Research Questions..................................................................................................... 3
Research Methodology................................................................................................. 3
Triple Talaq: Its inception.............................................................................................. 4
Sanctity of Triple Talaq................................................................................................. 5
Evolution of the Judiciary on Talaq-ul-biddat......................................................................7
Recent positive trends in the judiciary...............................................................................8
Triple Divorce- Not sanctioned by the Holy Quran.............................................................10
Conclusion.............................................................................................................. 11
Bibliography............................................................................................................. iii

Abstract
A husband may divorce his wife by repudiating the marriage without giving any reason.
Pronouncement of such words which signify his intention to disown the wife is sufficient.
Generally this done by talaaq. But he may also divorce by Ila, and Zihar which differ from
talaaq only in form, not in substance. A wife cannot divorce her husband of her own accord.
She can divorce the husband only when the husband has delegated such a right to her or
under an agreement. Under an agreement the wife may divorce her husband either by Khula
or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on the ground of
false charges of adultery, insanity or impotency of the husband. But the Dissolution of
Muslim Marriages Act 1939 lays down several other grounds on the basis of which a Muslim
wife may get her divorce decree passed by the order of the court. Talaq-ul-biddat, as its name
signifies, is the heritical or irregular mode of divorce, which was introduced in the second
century of Mohammedan era.

Introduction
Primarily, no marriage is a contract in Islam which is entered into with a view to be dissolved
in the future. But in rare-avis situations this celebration may come to an end through a
divorce which may be either by act of the husband or by act of the wife.
Talaq is an Arabic word its literal meaning is "to release" or "taking off any tie or restraint "
or "removal of the restrictions of

Nikah" and in Islamic jurisprudence it signifies the

repudiation of marriage or dissolution of marriage i.e. divorce.


There are Quranic forms of Talaq, which are most compatible with gender justice, medical
morality, human honour, and personal parity. There are different modes of Talaq ordained in
the Holy Quran. There are two kinds of Talaq sanctified in the Holy Quran and approved by
the Holy Propheti) Talaq-ul-Sunnat (revocable divorce) having further two forms
a)Talaq-i- Ahsan (Most Proper Divorce) and b) Talaq-i-Hasan (Proper Divorce).
ii) Talaq-ul- Biddat (Innovative Divorce) which is irrevocable and pronounced thrice in one
sitting and operates with immediate effect and better known as Triple Talaq.
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Tripe Talaq is the most disapproved, detestable, and draconian form of dissolution of Muslim
marriage. Triple Talaq is a weapon of victimisation of women. It is barbaric in nature which
deprive women of their rights and go against the concept of gender neutrality.

Aim
The aim of this project is to bring forth the barbaric nature of the concept of triple talaq and
analyse the recent trends of the judiciary in ensuring justice to the Muslim women.

Triple Talaq: Its inception


Triple Talaq is a recognised form of divorce in the contemporary legal regime in India or
Muslim Law as administered in India. Muslim jurists have perceived it as a novel innovation
in Sharia Law.
It was not there in the initial two years of the lifetime of the first Caliph Abu Bakr and second
Caliph Umar, the great. But, subsequently, Triple Talaq was allowed exclusively in some
special circumstances. It came into existence when the Arabs had conquered Egypt, Iraq and
Syria. During this time the Arabs found that women of these countries were more beautiful
than those of their own wives. Consequently, they decided to marry them.
But these women of Egypt and Syria insisted upon divorcing their existing wives with
immediate effect by pronouncing Talaq in one sitting so that they could marry them. Arabs
readily accepted this condition because they knew that in Islam Talaq is pronounced thrice
between the period of purity (Tuhr) and its repetition at the same time is against Islam,
therefore, it would be void and ineffective. In this way, they not only could marry but also
retain their present wives.
Caliph Umar, in order to prevent the misuse of religion on this point ruled that if anybody
pronouncing Talaq thrice in one sitting would result in irrevocable dissolution of marriage.
Although it was an administrative measure to meet an emergency and was not his intention to
institutionalise it as a permanent law.
But unfortunately, Hanafi jurists declared this arrangement of administrative nature issued by
Caliph Umar, the great, as lawful and divorce thereupon valid under the law.

Talaq
The husband may initiate the divorce process by pronouncing the word talaq, the formula of
repudiation, or a statement of equal meaning in another langauge such as "I divorce you." A
single pronouncement is sufficient to suspend the marriage, but after three divorces, the
divorce is irrevocable unless the wife has remarried, consummated the marriage, and is
divorced by her new husband with honest intention, and not merely to allow her to remarry
her former husband. When three pronouncements of divorce are declared at once, they are
considered three separate divorces and the divorce is irrevocable afterwards; a minority
opinion of the Hanbali school regards three simulataneous pronouncements as a single
divorce, but this is rejected in most legal schools. Confusion over the procedure, status, and
binding nature of divorce pronouncements is a common question brought before Islamic
authorities. A wife cannot initiate the divorce unless her husband agrees to it (see Tafwid
below) or she wins the approval of a qadi, who can annul the marriage or divorce the couple
for issues such as deception during the betrothal, impotence, failure to provide maintenance,
disappearance, or physical or psychological abuse (particularly in the Maliki school). Today,
most countries have official procedures before the state registers the divorce, as in the case
with marriages, but the religious implications exist with or without official recognition.
There is a period of seperation after a divorce during which the husband and wife can
reconcile without a new marriage contract, and she is prohibited from remarriage. This period
lasts for the span of three menstrual cycles, three months, or until the end of pregnancy. Shia
practice, which stipulates that the divorce must be a public pronouncement, also encourages
witnesses to be present at the end of the separation period to confirm that the couple has
chosen not to reconcile.
Why triple talaq called Nightmare
. Triple talaq is a procedure of divorce, recognised by
the Sharia Law in India. A Muslim man only has to pronounce the word talaq thrice in the
presence of two witnesses to divorce his wife. It is very quick, easy and effective. Recently,
Muslim men have been using other forms of communications such text messages and emails
in order to divorce their wives.
The number of impoverished Muslim women has risen as a result of a rise in oral divorces in
recent times. Many Muslim women are uneducated and cannot provide for themselves, thus,
triple talaq only serves to magnify their hardships. The husbands can use it to their advantage
and divorce their wives over petty arguments or simply because they are seeing other women.
Frivolous reasons such as poor culinary skills have been known to be a cause of divorce.
Living as a divorced woman in a highly patriarchal and judgmental society like India is very
difficult. To be a divorced woman in India invites scorn in our society, where marriage is
considered both sacred and necessary to be engaged with different social circles.
Comprising approximately 20% of the total population, Muslims make up the largest
minority group in India. The Muslim Personal Law (Sharia) Application Act 1937, governs
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the Muslims family laws in India. While many other Muslim countries such as Pakistan,
Bangladesh, Turkey, Egypt, etc. have banned triple talaq either impliedly or expressly, the
practice is still valid in India. Some of these countries now require an approval by the court
for a couple to be considered as divorced.
Triple talaq is also known as Talaq-ul-Bidat. According to Muslim scholars, Talaq-ul-Bidat is
only effective when a man utters the word talaq thrice over a period of three consecutive
months. He has to declare talaq only during the time of Turh (a womans menses-free
period). Once the words are spoken for the third time over a period of three months, the
marriage is dissolved instantly. The divorced couple can remarry only after the woman has
married and divorced another man in the interim period. This process of an intervening
marriage is known as the Halala.
The full procedure is not followed in India where merely repeating the word talaq three times
leads to a valid divorce. The plight of Muslim women is exacerbated by the fact that Muslim
law is open to interpretation by the Muslim clergy because it is not codified. Muslim scholars
have questioned the validity of triple talaq because it does not find mention in the Quran,
which supports the three-month procedure with an opportunity for reconciliation. Some
Indian cases suggest that the divorce must be for a reasonable cause but a fog of
uncertainty prevails over Muslim personal law generally.
Recently, Shayara Bano has filed a petition to the Supreme Court of India demanding the
abolition of triple talaq and polygamy under Muslim law in India. Various Muslim campaign
groups who believe that these practices are discriminatory in nature support the move. There
is an argument to the effect that triple talaq violates Part III of the Indian Constitution
enlisting fundamental rights, in particular, discrimination and equality before law. The gist of
the arguments forwarded in the case is that triple talaq is unconstitutional.
The move was met with a strong opposition by the All India Muslim Personal Law Board.
The Board argues that triple talaq is a matter of culture and Islamic beliefs. They see the
petition as an attempt to interfere with Islam by the Hindu Nationalist BJP government in
India. The opposition is religious and also argues that fundamental rights do not apply to the
personal law of Muslims in India. They state that the Constituent Assembly deliberately
refrained from imposing a Uniform Civil Code because the Assembly was aware of the
differences in Muslim personal law. They insist that Muslim women already have adequate
legal protection and cite legislation such as Muslim Women (Protection of Rights on Divorce)
Act, 1986 in their defence.
While it is important to respect the rights of religious and cultural minorities in a diverse and
secular country like India, it is also critical to ensure that such practices do not abuse basic
human rights. Triple talaq diminishes the ability of Indian Muslim women to live with
dignity. The prevailing practice instills fear and anxiety in the minds of countless Muslim
women who experience even slight difficulties in their marriages. Arguments are common to

all marriages and many experience a rough patch. However, divorce on the whims and
fancies of men is a disgraceful practice.
Since triple talaq has been abolished in 22 Muslim majority countries, it is difficult to see the
need to hold on to it. Muslim personal law is in need of a comprehensive review. Perhaps,
India can draw a procedure more suitable to its Muslim population by reflecting on the law in
other Muslim states like its neighbours. Codification of Muslim law will also help to reduce
the uncertainties around it. Effective reforms are necessary and much awaited in the territory
of Muslim personal law.

Recent positive trends in the judiciary


A.S. Parveen Akthar Versus. The Union of India (UOI)1998
A.S. Parveen Akhtar, the Petitioner above named was a Muslim woman who was married to
Y. Md. Ismail Farook, the second Respondent on 06.02.1990. After the marriage, there were
marital differences between the husband and the wife.
As per the Petitioner, her parents had been compelled to give dowry before the marriage. But
in spite of the same, the second Respondent (the Petitioners husband) threatened to divorce
the Petitioner, if she did not persuade her parents to give him a scooter as an additional
dowry. Since the Petitioners parents were unable to provide for the additional dowry
demand. Therefore, the Petitioner was thrown out of Respondent No.2s home on 04.03.1991,
and that she was forced to stay in a local ladies hostel. Further, the second respondent had
told the Petitioner that he would permit her to live with him only if additional dowry is given
to him by her parents.
Thereafter, the Petitioner on 01.05.1991 was intimated through her father that the second
respondent had pronounced talaq in the presence of two witnesses in a single sitting in Talaqul-biddat form and a receipt of the notice was sent by the second respondent to the
Petitioners father, attempts were made to persuade the second respondent to take back the
Petitioner, but he declined to do so on the ground that the irrevocable talaq had already taken
place.
The Judgment:
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After hearing both the parties, a division bench held that whatever may be the form of talaq,
first and foremost it must be for a reasonable cause, and must be preceded by several attempts
for reconciliation by arbitrators chosen from the families of each of the spouses. As per the
Honble Court, the grounds on which the petitioner has sought a declaration that Section 2 of
the Muslim Personal Law (Shariat) Application Act, 1937 in so far as it seeks to recognize
and validate Talaaq-ul-Biddat or Talaaq-i-Badai form of divorce, as void and
unconstitutional, are mainly that it does not provide for reconsideration and is not preceded
by attempts at reconciliation. The Honble Court held that the petitioners apprehension that
notwithstanding absence of cause and no efforts having been made to reconcile the spouses,
this form of talaq is valid and not going against the constitution of the country. The writ
petition was accordingly dismissed.
CRITIQUE OF THE JUDGMENT:
We are of the strong opinion that this judgment of the Honble High Court of Madras which
has that held Talaq-ul-biddat to be valid, has not only resulted in atrocity on Muslim women
but has also inflicted a great blow to the fundamental rights, which form the basic structure of
the Constitution of India. This form of talaq is infested with the malady of inequality which
goes against equality which is enshrined in Article 14 of the Indian Constitution. Talaq-ulbiddat distorts the fundamental right against any form of discrimination enshrined in Article
15 of the Indian Constitution. Lastly, digression from normal format of divorce, talaq-ulbiddat mars the essence of Article 21, the right to life and personal liberty.
In the instant case of Praveen Akhtar, the womans liberty to choose to live with man she was
married was unilateral bestowed on the husband in the form of triple talaq. The wife never
even had the personal liberty to give her consent whether or not she wanted this marriage to
exist or not. Where do the arbitrators come into the picture when the husband in front of his
entire family had already thrown her out and later divorced her? Will such a family act as
arbitrators or mere supporters of the husband?

This process has now begun in right earnest with the latest pronouncement of the Supreme
Court in the above decision in Shamim Ara v. State of U.P. The question which came up
before their Lordships of the Supreme Court was whether the plea raised by the Muslim
husband in his counter statement to the petition filed by his wife for maintenance that he had
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already divorced her will bring about a valid divorce by triple talaq and what are the
principles governing such a talaq.

Triple Divorce- Not sanctioned by the Holy Quran


The Qur'an did not approve of triple talaaq (divorce) in one sitting as was the case in preIslamic days. Such divorce was considered irrevocable unless the divorced woman married
another man, the marriage was consummated and then the man divorced her. Only then could
the woman become hallalah, that is, it became permissible for her to marry her former
husband. This was, evidently, a very humiliating practice. The Qur'an brought about thorough
reform in this form of divorce and required the three divorces to be spaced at one month's
interval, and to pronounce one divorce at one time, after checking that the woman was not in
a state of menstruation. The man could take back his wife before one month was over. If that
did not happen and the second pronouncement was made, the man could still revoke the
declarations by taking her back before the third pronouncement.

Conclusion
Observations made by the author
The codification of Muslim Personal Law must be done as directed by the Holy Quran and
Hadith to establish the unity, unanimity and ubiquity in legislative, executive and judicial
actions in a secular state like India as enshrined under Articles 25and 26 of the Constitution
of India1.
A panacea often suggested for resolving the many contradictions and problems posed
by ahwal al-shakhsiyah is the enactment of secular laws replacing all personal laws. In the
context of Muslims, acceptance of this idea seems improbable. The social and cultural
conditions of Muslims make such a drastic change untenable for them.
1 Constitution of India, 1950
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A possible solution is codification of the Shariah laws. The traditional shariah law is based on
the concept of justice. Justice in the Qur'an is so fundamental that even the most conservative
interpretation of the Qur'an cannot deny it. Though many ahadith are regressive and against
the spirit of Qur'an, there are some which are in line with it. Codification will help emphasise
this spirit. Such codification should be with respect to laws pertaining to marriage, divorce,
inheritance, custody of children in case of divorce, maintenance during persistence of
marriage and status after the divorce. These are the most important areas of personal law.
Talaq-i-ahsan: The just divorce
Triple talaaq should be banned and only talaq-i-ahsan, a divorce where the declarations are
spread out, should be permitted. The husband should be made to pay the remaining part
of mehr (mehr muwajjal), if any, along with other dues or jewellery or dowry items and what
the Qur'an calls mata.
Three months' maintenance for the iddah period should be paid as well. Divorce should be in
writing and with the signature of two witnesses and the qazi. Oral divorce should not be
admissible.
Before divorce is to be finally pronounced, the qazi should appoint two hakamain, as per a
Qur'anic requirement. The hakamain will try to bring about reconciliation and if that attempt
fails, the husband should pronounce divorce once for the period of iddah. After the iddah is
over, the divorce will take place. Written divorce should be made compulsory.

Bibliography
BOOKS REFERRED:
1. Syed Khalid Rashid- Muslim law, 4th edn. 2004, Eastern Book
Co.Lucknow.
2. B.R. Verma-Islamic Law, 6th edn. 1986, Law Publishers (India) Private
Limited.
3. R.K. Sinha- Muslim Law, 5th edn. 2003, Central Law Agency, Allahabad.
4.

M.A. Qureshi- Muslim Law, 2nd edn. 2002, p.68, Central Law
Publications, Allahabad.

5. A.A. Fyzee- Outlines of Muhammadan law, 4th edn. 2005, Oxford


University Press, New Delhi.
6. The Holy Quran IV, 34; translated by Abdullah Yusuf Ali, edn. 2004,
Ayman Publications, New Delhi.
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Law Publications, Allahabad.
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