Triple Talaq under Muslim Law: An afterthought

The article discusses that the legislation would help in ensuring the larger Constitutional goals of Gender Justice and Gender Equality of married Muslim women and help sub serve their fundamental rights of non-discrimination and empowerment.

Triple talaq under Muslim law is a form of talaq recognized by Sunni Muslims in India and is also known as talaq-e-biddat. It allows any Muslim man to pronounce talaq by uttering the word ‘talaq’ thrice in one sitting or in three different settings. It can be given in written, oral, or as in recent times by the electronic modes as well. If it is pronounced in three different settings, there must be an attempt of reconciliation before every such pronouncement. Triple talaq is bad in theology but good in law[1] as held by various judgments.

Muslims in India are governed by The Muslim Personal Law (Shariat) Application Act, 1937 which mandates triple talaq under Muslim Law in India. It is pre-independence legislation and has replaced the Anglo Mohammedan law, section 2[2] of which attempts to do away with all the customs and provisions contrary to the 1937 act. Initially, triple talaq had a legal sanctity but over the period of time, the judiciary has put a limitation on the practice of triple talaq. Courts gave many judgments which restrict the triple talaq and in its latest judgment[3], the Supreme Court held it to be unconstitutional. In Shamim Ara v. State of U.P. &Anr.[4], The court invalidated the triple talaq and held that the mention of the date of talaq cannot constitute triple talaq. Facts which led to the divorce must be mentioned. Also, the High Court of Delhi in Masroor Ahmed v. State (NCT of Delhi) &Anr.[5] held that talaq pronounced in the gist of anger is invalid and there must be an attempt of a reconciliation between the parties before pronouncing talaq. It also held that triple talaq is valid only when reconciliation is not possible between the parties. Bombay High Court in Dagdu Latur v.Rahimbi Dagdu Pathan, Ashabi[6]held that a Muslim man cannot pronounce a talaq at his will. The circumstances which led to talaq must be proved in the Court.

Also Read  Constitutional Safeguards on Right to Religion

The most important verdict that was passed by the Supreme Court is ShayaraBano v. Union of India[7]. The five judge bench of Supreme Court held the triple talaq unconstitutional by a majority of 3:2. The majority opinion was delivered by JusticeNariman, JusticeLalit and Justice Kurian Joseph while the minority opinion was delivered by JusticeKhehar and JusticeNazeer. JusticeNariman and Justice UU Lalit said in their judgment that as it is a pre-independence legislation, it is not outside the scope of article 13(1)[8]. It can be held void to the extent of the inconsistency with the 1937 act[9]. They did not touch the question as to whether personal law can be tested against triple talaq. They also rejected the argument forwarded by the Muslim Personal Law Board that the 1937 act only attempts to do away with the customs which are contrary to this act. In their view, this act also enforces the Muslim law. They said that “it is manifestly arbitrary” to allow a man to “break down (a) marriage whimsically and capriciously”[10]. They observed that the practice of triple talaq is not integral and essential to the Muslims and thus held it to be unconstitutional.

In the dissenting opinion, Justice Khehar and Justice Nazeer held that triple talaq is a century old practice of Hanafi Muslims. Though it is a sinful practice, but it is widely practiced in the Muslim society. They said that article 14[11] cannot be read independently, it must be read with article 25 and that this is a 1400 year old practice and an essential part of their religion.

The opinion of Justice Kurian Joseph disturbs the balance of the judgment. He only checked that whether the triple talaq has a legal sanctity or not. He put reliance on Shamim Ara v. state of U.P. and Anr. and held that triple talaq lacks legal sanctity. Supreme Court in this landmark judgment invalidated the triple talaq.

Also Read  Should Government Doctors be allowed to conduct Private Practice?

Even after the passing of this judgment[12], triple talaq is still prevalent in Indian society. There are as many as 100 cases of instant talaq since this judgment[13]. Union government came with the ‘’Muslim Women(Protection of Rights on Marriage) Bill’’, also known as triple talaq bill for the deterrent effect.
The word must be considered as the triple talaq or talaq-e-biddat for the purposes of this act[14]. This bill proposed to make triple talaq a void[15] and an illegal practice and also make it punishable with imprisonment upto 3 years[16]. It also sought to impose fine on the perpetrators. This bill also carves out provisions for the maintenance of the wife and her dependent children[17]. The wife herself or her close relatives can file the complaint under this act. It also makes the act cognizable[18] and non bailable[19]. The bill makes it non-bailable, but magistrate on certain grounds sounding to be convincing can grant bail. It is a compoundable offence as per the bill[20].

There are some apprehensions regarding the provision that mandates any person to file a complaint in the case of triple talaq and also enables police officer to take the cognizance of the offence. To address this issue, bill makes the provision that only women to whom triple talaq is pronounced and her close relative can complain about the talaq[21].

The bill was passed in the Lok Sabha, but got stuck in the Rajya Sabha. As the practice is still followed in many parts of India and the bill is stuck in Rajya Sabha, the president has to re-promulgate the ordinance for an immediate relief to the victims of triple talaq.

Ravi Shankar Prasad, the Union law minister, after the passing of the bill said that “the legislation would help in ensuring the larger Constitutional goals of Gender Justice and Gender Equality of married Muslim women and help subserve their fundamental rights of non-discrimination and empowerment”.  

Also read Case Comment on Triple Murder


[1]ILR (1906) 30 Bombay 537 (539)

Also Read  Analysis of Conviction of Rioters in India

[2]The Muslim Personal Law (Shariat) Application Act, 1937

[3]ShayaraBano v. Union of India, (2017) 9 SCC 1

[4] AIR 2002 SC 3551

[5]  2008 (103) DRJ 137 (Del.)

[6]  2003 (1) BomCR 740

[7] (2017) 9 SCC 1

[8]Indian constitution

[9]The Muslim Personal Law (Shariat) Application Act, 1937

[10]  (2017) 9 SCC 1

[11]Indian constitution

[12](2017) 9 SCC 1

[13]100 cases of instant triple talaq in the country since the S .. Read more at:
http://timesofindia.indiatimes.com/articleshow/62279519.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst, TOI, Dec 28, 2017 

[14]Muslim Women(Protection of Rights on Marriage) Bill

[15]Sec 3 Muslim Women(Protection of Rights on Marriage) Bill

[16]Sec 4 Muslim Women(Protection of Rights on Marriage) Bill

[17]Sec 5 of  Muslim Women(Protection of Rights on Marriage) Bill

[18]Sec 7(a) of Muslim Women(Protection of Rights on Marriage) Bill

[19]Sec 7(c) of Muslim Women(Protection of Rights on Marriage) Bill

[20]Sec 7(b) of Muslim Women(Protection of Rights on Marriage) Bill

[21]Sec 7(a) of Muslim Women(Protection of Rights on Marriage) Bill