Triple Talaq: A Contemporary Scenario

Triple Talak has been a burning issue in the past one year. Questions of its fairness to women and whether it is quranic or not is being answered by clergy and the Courts. This blog explores further.

Triple Talaq: The Most Criticised Muslim Law

Marriage is a pious bond between husband and wife, a promise to be together throughout each other’s life. But, with time the thinking has been changed. People being more practical have found a way to be separated and live peacefully if the marriage is not successful. The way is known as Divorce. India is known for its secularism by holding each religion together and continuing with giving rights to minorities and other religions by recognizing them and making particular law for each religion so as to provide them their rights through all possible means and to do that the Uniform Civil Code is in dispute as some minorities do not want to abolish their own customary practices like Triple Talaq and follow a law which governs all the people.

Marriage in Muslim Law

Muslim is a minority group which is totally segregated and is governed by the Muslim Personal Laws. The marriages and divorces that take place between the Muslims are governed by their own personal laws. There are so many different ways of Divorce or talaq in Muslim Law. However, the most unfair way of Divorce is the ‘triple talaq‘ in which the spouse (wife) is not even provided with a chance to have a say in the divorce. Muslim marriages are contract i.e., through nikahnama and by just uttering three words the breakdown of marriage takes place. According to the Quran also, the equal footing of the men and women is the aim, yet, the interpretation is done in such a manner that it has become partial or biased towards men. While through triple talaq, the actual position is that there is discrimination against women (Muslim). Although, this discrimination can be avoided if the nikahnama prescribes the condition. Thus, in a way there is discrimination and there is not.

The Evolution of the Battle Against Violation Of Women Rights

The concept of Triple talaq was first discussed in the case of Ahmed Khan v. Shah Bano[1], when after the triple talaq or divorced wife is entitled maintenance under Muslim Women’s Act, 1986[2]. This was upheld in Daniel Latifi v. Union of India[3], that Article 14, 15 and 21 are violated if the maintenance is not provided to the people as the Muslim women is entitled maintenance from her husband beyond the iddat period as well as per Section 3(1)(a) of the Act[4]. The maintenance is, however, to be granted to the divorced wife till the time she is not remarried to any other person. The Section 4 of the Act also elaborates about the maintenance. In the case of Shamim Ara v. State of U.P.[5], it was held that the concept of triple talaq is giving Muslim Men an edge over the women leading to a total discrimination. The Shamim Ara judgment also relied on the case of Must. Rukia Khatun v. Abdul Khalique Laskar [6], where the High Court clearly laid down the grounds on which the triple talaq can take place and will be valid. It stated that, “the correct law of talaq, as ordained by Holy Quran, is: (i) that ‘talaq’ must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, ‘talaq’ may be effected.”[7] Thus, the reasonable ground should be present for the triple talaq.

Section 125 of Criminal Procedure Code[8] also enables any women to claim maintenance under the same. This serves the purpose of the Uniform Civil Code in a manner as it is governing each and every citizen regardless of the religion of the person.

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Current Scenario of the triple talaq is still not clear as the Shayra Banu[9]case is in the proceeding. The only way to stop this discrimination is already clear as this can be avoided through nikahnama. In other words, if the condition is mentioned in the marriage contract then, the triple talaq would not be a valid divorce. The current status of triple talaq is still ambiguous because despite being an alternative available, this is an unfair practice which is been adopted by men which are depriving the rights of women from them and the level playing field is denied to the women time and again. The right to equality is also violated through such norms of the Muslim marriages and divorce as it takes the right of the women to even say in such matters. Even in the absence of women if the Husband pronounces talaq it will not be void and will be effective[10]. But, there is a condition to triple talaq and that is to communicate the talaq to the wife. This view was taken by the Madras High Court in case of Kathiyumma v. Urathel Marakkan[11], where it was held that “It is now settled law that the absence of the wife does not make the pronouncement of talaq void and inefficacious, for the husband may pronounce a valid talak in her absence”. This view was upheld in the case of Masroor Ahmed v. State (NCT of Delhi)[12].

Also, in A.S. Parveen Aklhar v. Union of India[13], it was held that “reasonable or fair provision for the future of the divorced wife obviously includes her maintenance as well, and such a reasonable and fair provision in terms of Section 3(1)(a) of the Act is not limited to the iddat period and extends for the entire life of the divorced wife unless she remarries.” The present situation according to the law is that the husband is liable to pay maintenance after the divorce and Section 125 Criminal Procedure Code acts as a uniform civil law for all the divorced women. Although, the validity of the triple talaqis still in question and that can only be decided after the decision of the court. The Shayra Bano case will further decide the fate of the Muslim Law and will provide further guidelines of the triple talaq. Under Shia Law the triple talaq will be banned according to the recent meeting between the executive and member of boards and the issue which is been dealt by the Supreme Court will further illustrate on the law. The most recent case with respect to the triple talaq is of Sabah Adnan Sami Khan v. Adnan Sami Khan[14], which upheld the case of Masroor Ahmed stated that the instant talaq cannot be said to be valid talaq. Also, in Hina v. State of U.P.[15], the Madras High Court made the position quite clear by relying on the Shamim Ara case that the constitutional rights are above personal laws and hence, the marriage cannot be void just by uttering three words.

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[1] 1985 SCR (3) 844

[2]Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3– Mahr or other properties of Muslim woman to be given to her at the time of divorce

(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to-

(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;

(b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;

(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and

(d) all the properties were given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or anyone duly authorized by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.

(3) Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that-

(a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or

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(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been  delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman:

Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period.

(4) If any person against whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973, and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defense and the said sentence being imposed according to the provisions of the said Code.

[3] (2001) 7 SCC 740.

[4]Supra 2.,

[5] (2002) 7 SCC 518

[6] (1981) 1 GLR 375

[7]Ibid.,

[8]Section 125 in The Code Of Criminal Procedure, 1973 -Order for maintenance of wives, children and parents.

[9] WRIT PETITION (CIVIL) NO. 118 OF 2016.

[10]Kathiyumma v. Urathel Marakkan: AIR 1931 Mad 647.

[11] AIR 1931 Madras 647

[12] 2007 SCC OnLine Del 1357

[13] 2002 SCC OnLine Mad 836

[14] 2010 SCC OnLine Bom 446

[15] 2016 SCC OnLine All 994