Abstract
This paper investigates the practice of Talaq-ul-biddat, often known as triple talaq, in Islamic law. Triple talaq permits a husband to divorce his wife unilaterally by uttering the word “talaq” three times, leading to an immediate and irreversible breakdown of the marriage. While the other two kinds of talaq, Talaq-e-Ahsaan, and Talaq-e-Hasan, are sanctioned by Islamic scriptures, Talaq-ul-biddat is not and has been subjected to extensive judicial examination and criticism in recent years. The study dives into the historical context of Talaq-ul-biddat and its predominance in India, as well as the changing roles of traditional Islamic law and the state in family law. It delves into the differing judicial perspectives on the legitimacy and legality of triple talaq, with some courts defending its legitimacy and others declaring it illegal and infringing the rights of Muslim women. The Supreme Court of India’s significant decisions, notably the Shayara Bano v. Union of India case, which declared triple talaq unlawful, are explored in depth. The court’s reasoning centered on the practice’s arbitrary and discriminatory nature, emphasizing its violation of women’s basic rights as protected by the Indian Constitution. The paper also examines the societal ramifications of triple talaq, including women’s organizations’ efforts to contest its legitimacy and fight for gender equality. It investigates the Indian government’s subsequent implementation of the Muslim Women (Protection of Rights on Marriage) Act, 2019, criminalized triple talaq and gave legal remedies and support to affected women. Furthermore, as emphasized by many court opinions, the article investigates the demand for reconciliation as a crucial element for a legal triple talaq. It investigates the relevance of reconciliation efforts and their compatibility with the teachings of the Holy Quran.
Keywords
Triple Talaq, Muslim women rights, unconstitutional, Talaq-ul-biddat, criminalized.
Introduction
In Muslim Law, Talaq-ul-biddat is a practice of divorce in which a husband can divorce his wife unilaterally. This type of talaq is commonly referred to as Triple talaq. This is an irreversible form of talaq which can only be used by the husband by saying talaq thrice on a single occasion, resulting in the marriage’s immediate dissolution. The presence of the wife is not essential; she might be given Talaq for any reason. Under Muslim law, the term “Talaq” refers to the husband’s repudiation of the marriage. The practice of Talaq-ul-biddat has been practiced in India since ancient times. There are no doubts about the legitimacy of the other two forms of talaq namely -Talaq-e-Ahsaan and Talaq-e-Hasan because they are approved by the Quran and hadith, but there is a third form of talaq known as, Talaq-ul-biddat, which is neither recognized by the prophet nor is it recognized by the Quran.[1] This Talaq-ul-biddat has faced harsh criticism and reforms in the last decade.
Traditionally, the Sharia, as interpreted by traditional Islamic law, dictated divorce regulations; however, they differed depending on the legal school. When family law got formalized in present society, it remained largely within the purview of Islamic Law, although power over divorce laws was passed from traditional jurists to the state.
Triple Talaq has been one of the most contentious and hotly debated religious issues in the nation, and the judiciary’s stance on the topic has frequently shifted from time to time, while there were some courts which upheld the legality of Triple Talaq, others did not and claimed it is sinful, unilateral, and so on. Several women’s organizations such as Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMNA) have fought for Muslim women’s rights, claiming that Talaq-ul-biddat is unconstitutional and violative of women’s fundamental rights.[2]
Research Methodology
This paper is of descriptive nature and the research and analysis is based on Case laws and secondary sources for the analysis of Talaq-ul-biddat or Triple talaq. Secondary sources of information like textbooks, websites, newspapers, and journals are used for the research.
Review of literature
- Background
During the UPA era from 2004 to 2014, the issue needed to be addressed more forcefully. However, with the right-wing government coming to power at the Centre and the Bhartiya Janta Party raising the issue of unconstitutionality of Talaq-ul-biddat during the Uttar Pradesh elections, the matter gained traction, and the Supreme Court Constitution Bench heard the case and gave the verdict declaring it unconstitutional.
The Supreme Court of India issued the first major judicial pronouncement with respect to the practice of talaq-ul-biddat in the case of Shamim Ara v. State of U.P. (2002). The court ruled in this case that the practice of triple talaq was illegal and violated the rights of Muslim women. The court ruled that the practice was arbitrary and discriminatory and that it violated the Indian Constitution’s gender equality principles.[3] Notwithstanding the Court’s order, the practice of triple talaq persisted in some parts of the country. The matter resurfaced in the year 2017 when the apex court-the Supreme Court of India considered a plea submitted by Shayara Bano, a Muslim woman who challenged the constitutional validity of the practice of triple talaq.
In a major decision issued in August 2017, the Supreme Court of India deemed triple talaq to be unconstitutional. After the Supreme Court’s decision, the Indian government introduced the Muslim Women (Protection of Rights on Marriage) Bill, 2019, which criminalized triple talaq and provided for up to three years in prison for Muslim men who divorced their wives through instantaneous triple talaq.[4] The Bill was proposed in 2017, however, it was postponed in parliament owing to resistance from certain political parties. Nonetheless, the Bill was reintroduced and passed by both houses of the Indian parliament in July 2019, making it the law of the nation.[5]
As I had mentioned above there were times when the courts held the practice of Talaq-ul-biddat- to be unlawful but there were also times when courts upheld the validity of the practice while critiquing it. Further on in the paper, I will discuss such cases and also provide the court’s reasoning for the same.
- Talaq-ul-biddat is the most sinful form of divorce.
Talaq-ul-biddat, an irrevocable divorce given in one sitting goes against the will of Allah and the holy Quran to try to bring the husband and wife back together as this form of divorce does not provide a waiting period for reconciliation. The courts based on this assertion called this form of Talaq to be sinful. In the case of Rahmatullah vs. the State of UP, Rahmatullah filed a writ petition challenging the validity of triple talaq because it violated the fundamental rights of Muslim women.
However, Allahabad High Court upheld the validity of triple talaq as a recognized form of divorce under Muslim personal law but also observed that it was undesirable and sinful and suggested that the Muslim community should discourage its use.[6]
The Supreme Court of India eventually declared triple talaq as unconstitutional in the case of Shayara Bano v. Union of India, overturning the earlier judgment in Rahmatullah v. State of Uttar Pradesh as noted later on in the paper.
- Talaq-ul-Biddat is a Unilateral form of Divorce.
In the case of Yousuf Rawther vs. Sowramma, the judgment primarily focused on the fact that failure in providing maintenance to the wife can be a ground for dissolution of marriage. However, Justice Krishna Iyer also held that the practice of Talaq-ul-biddat goes against the core values of the Holy Quran and that this form of divorce gives unilateral power to the husband to end the marriage he also went on to state that it is the misinterpretation that led to the practice of triple talaq.[7] The court in this case viewed Talaq-ul-biddat from a new perspective and upheld the fundamental rights and interests of Muslim women.
Similar to the case of Yousuf Rawther the court in the case of Mst. Zohara Khatoon v. Mohd. Ibrahim also held that Talaq-ul-biddat or triple talaq is the most sinful and immoral form of divorce as it gives the husband the unilateral power to end the divorce[8]. The case was also an important turning point in the discussion of the legality of triple talaq in India, as it upheld the fundamental equality rights outlined in Article 14 of the Indian Constitution and determined that triple talaq was an infringement of those rights.
Moreover, the court ruled that triple talaq was not a fundamental component of Islamic law and therefore not protected by Article 25 of the Indian Constitution’s guarantee of religious freedom. This case paved the path for other legal changes in India concerning Talaq-ul-biddat.
- Attempt for Reconciliation is a necessary condition for a Valid Triple Talaq.
According to Muslim religious texts, divorce must be preceded by attempts at reconciliation between the husband and wife. The attempts should be made by arbitrators, family elders, or well-wishers of the individuals involved.[9] In the case of Rukia Khatun v. Abdul Khalique Laskar, it was determined that Talaq may only be declared following unsuccessful attempts to resolve the disagreement by the husband and wife, both of whom had nominated an arbitrator.[10] Without a successful attempt at reconciliation, the divorce process is regarded as disrespectful to the Holy Quran’s teachings. In the case of Masroor Ahmad v. N.C.T. of Delhi, Justice Badar Durrez Ahmad of the Delhi High Court reinforced this observation and held that –
“Reconciliation before the procedure of the divorce is of utmost importance and is in concurrence with the Holy Quran. It is of utmost necessity to follow the procedure of divorce as written in Quran and proper reasoning to be given before the commencement of the Divorce”.[11]
Shamim Ara v. State of UP was another decision that emphasized the same concept of reconciliation before the divorce. In this instance, the court ruled that the husband must make a fair attempt at reconciliation before declaring talaq. The court also ruled that the woman is entitled to support throughout the iddat period and that the husband bears the duty of proving the divorce’s legality.[12]
According to the Holy Quran, the appropriate Talaq law is that Talaq must occur for a reasonable cause and must be initiated by attempts at reconciliation between the husband and wife by two arbiters—one from the wife’s family and another from the husband’s; and if after all efforts the attempts at reconciliation fail, Talaq may be carried out.[13]
- Recent developments
Shayara Bano, a Muslim woman from Uttarakhand, questioned the legitimacy of talaq-ul-biddat. She claimed that the practice of triple talaq infringed on her basic rights granted by the Indian Constitution, such as the right to equality, dignity, and religious freedom. She further claimed that the practice was not required by Islamic law and had previously been prohibited in various Islamic nations.
The case was considered by a five-judge bench of the Supreme Court of India, which ruled 3-2 that the practice of triple talaq was unconstitutional. The procedure was arbitrary and discriminatory towards women, according to the court, and infringed on their fundamental rights.[14] The Supreme Court of India, in its historic judgment in Shayara Bano vs. Union of India, declared on August 22, 2017, abolished the practice of Talaq-e-Biddat or “Triple Talaq” by a 3:2 majority. The minority bench further asked the government of the Union of India to enact appropriate laws to regularise divorce processes under Shariat law.
A Constitution Bench consisting of 5 Judges from diverse religions heard the Petition for the Prohibition of Triple Talaq: Justice Kurian Joseph, a Catholic, Justice UU Lalit, a Hindu, and Justice RF Nariman, a Parsi, Chief Justice Khehar, a Sikh, and Justice Abdul Nazeer, a Muslim. On August 22, 2017, this bench ruled Triple Talaq or Talaq-e Biddat unlawful by a 3:2 decision. Justices Kurian, Lalit, and Nariman wrote the majority opinion, however, Chief Justice Khehar and Justice Nazeer dissented.
Justices Rohinton Nariman and Uday Lalit agreed and pronounced it illegal since it is plainly arbitrary in character. Justice Kurian Joseph, on the other hand, emphasized that this type of talaq is not sanctioned by the Quran. He followed up his judgment with comments, demonstrating his determination to avoid social disorder. What is terrible in theology, he claims, cannot be good in the eyes of the law. The opposing judges, on the other hand, argued that talaq is not ruled by Sharia law, but is an integral aspect of Islam and so protected under Article 25 of the Constitution.
Both Justice Nariman and Justice Lalit agreed that triple talaq is a mechanism for the husband to break marital relations while the woman is powerless to intervene, and so violates Article 14. On the issue of necessary religious practices, they held that under Article 25 of the Constitution, essential religious practices are those on which religion is found and are connected to the profession and promotion of religion.
They reasoned that since other Islamic nations had prohibited this practice, why not India? This also demonstrates that it is not an important aspect of religion and is thus subject to constitutional laws and fundamental rights. Another issue emphasized by the Bench was that, while this practice is practiced by Hanafi school members, it is sinful. They used the example of sati pratha in Hinduism, which was regressive and distant. Sati was also widely practiced and had a long-standing history.
According to Justice Khehar, the personal law of Muslims is not created by the state, and only laws made by the state are susceptible to basic rights and can be challenged on the basis that they contradict them. On this issue, Justice Nirman regarded triple talaq as a “law in force” and stated that the word “talaq” included in Section 2 of the Shariat Act 1937 renders it a wide authority. It is also included in the Dissolution of Muslim Marriage Act of 1939, and so falls under the jurisdiction of state legislation and can be contested in court on the basis of fundamental rights.
Later on, the Indian government approved the Muslim Women (Protection of Rights on Marriage) Act in 2019, making triple talaq a penal offense punishable by jail for up to three years. The Act also included provisions for financial assistance and other types of compensation for women who had been subjected to triple talaq.[15]
The Act has enacted in reaction to the Supreme Court of India’s judgment in the Shayara Bano vs Union of India case in 2017 that the practice of triple talaq was illegal. The Legislation was meant to offer legal support for the court’s decision as well as extra protection for Muslim women who may face triple talaq.
Suggestions
It is the need of the hour, to take serious measures to effect critical reforms in Islamic Personal Laws in India. Several steps have to be taken to implement these essential changes:-
- Codification of Muslim personal law:
Since Muslim personal law is in desperate need of codification, some legal professionals, scholars, organizations, or liberal ulema must now take it seriously. Gender-inequitable legislation must be repealed, and gender equality must be implemented. In addition, the Muslim women’s society and organizations must support the reform.
- The role of the state:
Parliament, with the assistance of qualified scholars, should draught a secular code that includes both Hindu and Muslim laws and is based on the country’s ideals of justice, human rights, and personal freedom. In circumstances when Islamic Laws contradict the democratic rights granted to citizens by the Constitution, strict action must be taken.
- Promoting the concept of a unified civil code:
The notion Encouraging the Uniform Civil Code in the country will help to eradicate many evil ideologies and traditions that are unjust and have given birth to irrational practices that have been prevalent across the country for ages, thereby strengthening the country’s integrity and unity.
- Introduction of gender-just personal laws:
The majority of personal laws in our nation reflect societal ideals and further disadvantage women. So, in order to weed out this evil, we urgently require gender-neutral personal laws. The gender-neutral coding must be the same for all groups, ensuring consistency.
- Prioritization of gender equality:
In terms of the fundamental rights guaranteed by the Indian Constitution, equality must be given top attention. There is an express provision in the Indian Constitution, but it is not properly applied, and strict application is highly needed for the benefit of the welfare of society as a whole. The Indian Constitution guarantees minority communities the freedom to freely disseminate and practice their religion, own property, build houses of worship, and manage educational institutions. Furthermore, religious laws cannot win over the right to equality provided by the constitution of a nation in a democratic democracy. Thus, it is critical to treat both genders with a common denominator, as well as the rights granted to them under the Indian Constitution. For the sake of personal legislation, no gender should be denied fundamental rights.
The case of Shayara Bano v Union of India has played a role in igniting the debate over gender-biased practices in Islamic law and has established a standard for how important it is to fight for our rights and enjoy the fundamental rights guaranteed by our democratic country.
Conclusion
Regarding the legality of triple talaq, a practice linked with the Muslim community, the judiciary has always been hesitant in giving an ultimatum decision. The reason for this is because there is no common perspective on the issue, this hesitancy explains the enormous disparity in individual court verdicts. While neither the Quran nor the Prophet of Islam sanctions this sort of talaq, it has been practiced in India for millennia. The legality of triple talaq has been the subject of much controversy and criticism. Different interpretations of Islamic law have resulted in divergent views within the court.
Some courts have ruled that triple talaq is a legal way to get a divorce, while others have ruled that it is illegal and violates women’s rights. This contradiction has caused confusion and doubt among Muslims. Despite the Supreme Court’s judgment in 2017 declaring triple talaq unlawful and the subsequent enactment of the Muslim Women (Protection of Rights on Marriage) Bill in 2019, which criminalizes the practice, it continues in some parts of the country. This underscores the need for increased awareness and cultural change in order to eliminate this destructive practice completely.
Several organizations and individuals have worked to raise awareness about the immorality of triple talaq and to promote gender equality within the Muslim community. These efforts seek to question conventional thinking and promote a more inclusive and progressive view of Islamic teachings. To summarise, while the judiciary’s stance on triple talaq has shifted throughout time, it is critical to approach the issue from both a legal and social standpoint. Raising awareness about the detrimental implications of this practice, as well as encouraging gender equality, are critical steps toward establishing a society that maintains the ideals of justice and equality for all of its members.
Garvit Agarwal
O.P. Jindal Global University
[1] Surbhi Goyal, Critical Analysis of Triple Talaq under Muslim Law, Jus Corpus Law Journal, 541, 544-547 (2022).
[2] BBC, https://www.bbc.com/news/world-asia-india-62805107 (Last visited June 13th, 2023).
[3] Shayara Bano v. Union of India, AIR 2017 SC 4609.
[4] THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019.
[5] THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019.
[6] Rahmatullah vs. the State of UP, II (1994) DMC 64.
[7] Yousuf Rawther v. Sowramma,AIR 1971 Kerala 261.
[8] Mst. Zohara Khatoon v. Mohd. Ibrahim, 1981 AIR 1243.
[9] The Tribune, https://www.tribuneindia.com/news/archive/comment/triple-talaq-myths-and-misperceptions-398646 (last visited June 13, 2023).
[10] Rukia Khatun v Abdul Khalique Laskar, 1981 1 GLR 375.
[11] Masroor Ahmad v. N.C.T. of Delhi, 2008 (103) DRJ 137.
[12] Shamim Ara v. State of UP, 7 AIR 2002 SC 3551.
[13] The Tribune, https://www.tribuneindia.com/news/archive/comment/triple-talaq-myths-and-misperceptions-398646 (last visited June 13, 2023).
[14] Shayara Bano v. Union of India, AIR 2017 SC 609.
[15] THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019.