Talaq is an Arabic term signifying the dissolution of marriage in Islamic law which is derived from the phrase Talaq a, it literally means taking off any relation or bonds.[1] While Talaq is an umbrella term for various divorce methods, it's primarily linked to the husband's unilateral right to end the marriage.[2] Khula, on the other hand is a similar practice, where the wife initiates the divorce. 'Tala-E-Sunnat' can be divided in two parts: 'Talaq-E-Hasan' and 'Talaq-E-Ahasan'. Second type of Talaq is 'Talaq-E-Biddat'.

In Talaq-E-Ahasan, the husband has to give Talaq only once to his wife and maintain a 90 days iddat period, which is irrevocable. On the other hand, in case of Talaq-e-hasan, the husband has to pronounce Talaq three times in three consecutive menstrual cycles of women and in the meanwhile, they have an option to revoke. The third one is Talaq-e-biddet which is a purely manmade practice where husband can pronounce Talaq three times in a go through any medium of communication and it makes the marriage dissolved, it was recognized by few Sunni schools popular amongst Hanafi section Sunni Muslims.

In this paper, the author shall try to elaborate the case of Shayara Bano v UOI & Anr[1] where the Apex Court has already declared 'the practice of triple Talaq', which is 'Talaq-e-biddet' as arbitrary unconstitutional. Further the author shall also discuss other precedents like Shah Bano[2] case, the recent Muslim women protection of rights on marriage act 2019[3], etc. in indian context.

History Of Triple Takaq In India & It's Validity As Per Islamic Law
As per Islamic Law, the concept of marriage is considered a social contract. It can be systematically dissolved when it no longer serves its intended purpose of mutual companionship and shared life.[4] India's current personal religious laws, including Islamic family law, is often seen as a legacy of British colonial rule.[5] This system recognizes the distinct legal rights of different religious groups, such as Muslims, Hindus, and Christians. Post-colonial nations typically aimed for a unified legal system under centralized state control. Talaq is seen as harmful to relationships in Islamic law, and while it's allowed, it's strongly discouraged.[6]

Islamic Scholars Categorize Talaq Into Two Main Groups:
Those that are valid and those that aren't, and those that can be reversed and those that can't.[7] However, India is a notable exception where this unification has not fully materialized. After the Shayara Bano case[8], the Supreme Court had urged the union take any legislative action to put a curb on the mass violation of the ruling.

While the 'Muslim Women (Protection of Rights on Marriage) Act'[9] criminalizes triple-e-biddet, its impact on Muslim women remains uncertain. The claim of opposition is that it fails to provide additional rights for women, as many had hoped. Instead, by solely focusing on criminalizing the husband, it potentially leaves women in a more vulnerable position without addressing the root causes of their challenges within marriages. There has been a long debate over the implementation of uniform civil code (Article 44)[10] over Muslim religious personal laws.

A survey conducted by the Bharatiya Muslim Mahila Andolan[11] revealed that a vast majority of Muslim women (83.3%) believed that codifying a law based on Quranic principles could effectively resolve family disputes. On the other hand, 89% of them revealed their desire for government intervention in codifying Muslim personal law.[12]

Several other Muslim-majority countries, including Egypt, Sudan, Pakistan, Bangladesh, Iraq, and Syria have already set aside the practice of triple Talaq as unlawful and un-Islamic practice decades before India.[13] Egypt was the first nation to do so. It is noteworthy that India took significantly longer to eradicate this practice to protect Muslim women rights.

Indian courts on Muslim Law of Divorce
The Supreme Court in Krishna Singh v. Mathura Ahir[14] has already held that 'Part III of the Constitution', which outlines fundamental rights, does not extend to personal laws governing matters like marriage, divorce, and maintenance. Therefore, courts cannot apply modern concepts when interpreting these personal laws but must rely on established and authoritative sources within those specific legal systems. Consequently, the constitutionality of practices within Muslim personal law, such as marriage, divorce, and maintenance, cannot be challenged under the framework of fundamental rights.

A bench comprising CJI Jagdish Singh Khehar, Justice Abdul Nazeer, Justice Rohinton Nariman, Justice U.U. Lalit & Justice Kurian Joseph have already determined that Talaq-e-biddet is not an essential religious practice[15] as per Islamic Law in case of Shayara Bano vs. Union of India.[16] The Supreme Court, in a divided 3-2 decision, declared the practice of triple Talaq, also referred to as Talaq-e-biddat, as unlawful under the Indian Constitution.

The court found that the Muslim Personal Law (Shariat) Application Act of 1937, which recognizes triple Talaq, clashes with fundamental rights guaranteed in the Constitution. Specifically, the court ruled that triple Talaq is not a fundamental aspect of Islamic religion and therefore isn't protected under the right to freedom of religion. To determine what constitutes an essential religious practice, the court clarified that such a practice should not significantly alter the core tenets of the religion. Since triple Talaq failed this test, it was deemed unconstitutional.

According to Hanafi law, a triple Talaq, or Talaq-al-biddat, can be valid even without proof that the husband intended to divorce his wife. This means that divorces resulting from jokes, mistakes, or even said under duress are considered legally binding. However, there's a distinction: if the husband was forced, coerced, or tricked into saying the divorce, it's still valid. But, if the husband was intoxicated unintentionally when uttering the divorce, it's considered invalid under Hanafi law.[17]

While triple Talaq is widely considered harmful and unfair, it's still practiced due to cultural acceptance. The Prophet Muhammad himself criticized this three-time divorce practice and explicitly banned halala, a process where a divorced woman must marry another man before remarrying her first husband.[18] Importantly, the Quran allows women to reunite with their former husbands without going through halala, as outlined in verses 2:229-2:30.

The divorce is allowed twice. So, either remain equitably, or part with the kindness. It is not lawful for you to take back anything you have given to the women, unless you fear that they will not uphold God's limits, then, there is no sin for what is given back.[19]

So, if he divorces her again, then she will not be lawful from him until she has married other husband. If the other husband divorces her, then they are not blamed for coming back together if they think they will uphold the God's limit.[20]

The essence of triple Talaq in India has been well explained in case of Rukia Khatun v Abdul Khalique Laskar.[21]

The division bench explained in the case that:
In our opinion the 'Talaq' must be reasonable cause; and for a that it must be preceded by an attempt at reconciliation between the husband and 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 affected.

In the Kunhimohammad vs. Avishakuut [22] case, the court ruled that a Muslim husband doesn't have to justify his decision to divorce his wife. However, the court emphasized the importance of mediation by two arbitrators to try and reconcile the couple. Simply declaring a triple Talaq without following the Quran's fair procedures for ending a marriage is unacceptable. To address Muslim-related issues, India has the 'All-India Muslim Personal Law Board', which is composed of legal experts who interpret Islamic laws.

Furthermore, in case of Marium vs. Md. Shamsi Alam[23] case, the court ruled that a triple Talaq uttered in one go is considered a single instance of divorce. In this case, the husband regretted his impulsive decision and revoked the divorce within the waiting period (iddah). The wife then challenged the validity of the revoked divorce. The Allahabad High Court determined that since the husband didn't genuinely intend to end the marriage, the divorce was considered revocable.

In case of Masroor Ahmed v State (NCT of Delhi), [24] Aisha Anjum and Masroor Ahmed were married and had a child. After Aisha left their home due to dowry demands, Masroor sought to reconcile and she returned. However, arguments arose again, leading Masroor to abruptly end their marriage by saying Talaq three times. Aisha claimed she was deceived, as Masroor had sought to resume their marital life while intending to end it. The court questioned the legality and impact of this triple Talaq practice. While Islamic scholars view it as wrong, it's still legally recognized. However, the court decided that saying Talaq three times at once is considered a single instance, and a proper divorce process must still be followed for the separation to be final.

While the decision to ban triple Talaq was a big step forward, it's important to remember the long history of this issue in India. The Supreme Court has actually looked at this problem before in other cases, so it could have been dealt with sooner. The court, in case of Shamim Ara v. State of UP [25] had also addressed the issues involved in triple Talaq practice. The Supreme Court didn't completely ban triple Talaq, but instead put limits on how it could be used. The Court said that a husband can only end a marriage this way if there's a really good reason. Also, couples should try to work things out before taking such a big step.

Hon'ble Supreme Court has already, in case of State of Bombay v. Narasu Appa Mali [26] held that the personal laws like those related to marriage and family weren't the same kind of laws as regular laws made by the government. Because of this, they couldn't be changed even if they went against basic rights of citizens. So, the court said these personal laws were kind of above the rules that protect our rights.

The Muslim Women (Protection of Rights on Marriage) Act, 2019
The practice of Talaq-e-biddet (i.e. triple Talaq) is a form of divorce prevalent among Indian Muslims, was declared unconstitutional by the Supreme Court in 2017. The word Talaq is defined in the Act under section 2 (c), which says Talaq-e-biddat or any other similar form of Talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband[27]. This landmark decision highlighted the vulnerability of Muslim women to arbitrary and unilateral divorce.

In response to the widespread concern and suffering caused by this practice, the Indian government introduced the Muslim Women (Protection of Rights on Marriage) Act in 2019.[28] The law aims to safeguard the rights and dignity of Muslim women by criminalizing instant triple Talaq.

Under the Act, any Muslim man who pronounces instant triple Talaq can be imprisoned for up to three years and fined. Importantly, the law also provides for the financial security of women and their children by mandating maintenance payments in case of divorce. By making instant triple Talaq a criminal offense and ensuring support for affected women, the act seeks to create a more equitable and just society for Muslim women in India. The only way for a divorced Muslim woman to get money after a divorce is to ask a court for maintenance under Sec. 125 of Cr.P.C[29], which gives power to the Magistrate to order a monthly allowance to men upon receiving sufficient evidence.[30] This process can be difficult because she has to prove that her husband isn't giving her money on purpose. She needs to have the resources and knowledge to go to court and make her case.[31]

When we talk about the legislature's power to frame such laws, the first and most landmark judgement is The Narasu Appa Mali v State of Bombay[32] case, despite being a two judge bench decision, it significantly influenced the domination of personal laws over fundamental rights. The court ruled that personal laws couldn't be challenged based on constitutional rights. This decision was problematic as it suggested personal laws were above the constitution. The court argued that personal laws weren't included in the definition of 'law' in the constitution, relying on an older law. They also claimed that since the constitution's creators didn't specifically mention personal laws, they weren't meant to be covered by constitutional rights. This interpretation limited the ability to challenge unfair personal laws.

The argument could be made that making triple Talaq a crime might discourage people from doing it. The Delhi High Court agreed with this argument in case of Nadeem Khan v Union of India[33]. But one thing we should ask ourselves if making something a crime is always the right answer. Just because the government doesn't want something to happen doesn't mean it should be a crime. In a free country, we need to think about why we want to stop certain behaviors and if using criminal laws is the best way to do it.

Experts say that preventing harm is a good reason to make something illegal, but the action itself must be wrong,[34] unlike the situations we talked about earlier with triple Talaq, making something a crime when it hasn't been shown to be harmful can weaken the power of criminal laws. This is because people might start to ignore these laws if they feel they are being used unfairly.[35] This problem isn't unique to triple Talaq. Women often face difficulties after any kind of divorce, not just religious ones. [36]

The law in India says everyone is equal, but the rules for divorce are different for Hindu and Muslim men, which is not a fair practice.[37] Hindu men can only get a divorce under certain conditions like cruelty or adultery, while Muslim men could once get a divorce very easily by saying Talaq three times. The law is always protective for women, the law is supposed to protect all women equally, but it feels unfair that Muslim men can still have multiple wives.[38]

Triple Talaq is a harmful and abusive practice that ends marriages instantly. Husbands who do this should be punished. [39] Before making any changes to the law, the government needs to understand the struggles Muslim women face. The conditions, exceptions, and specific grounds must be provided for the custody of the minor to the women.

Conclusion:
Religions don't actually give men power over women. It's how some men have used religion to control women that's the problem. Islam was created to improve life for people, not hold them back. But the idea of triple Talaq, which is how some Muslims end marriages, isn't fair or right. It doesn't fit with the true spirit of Islam.

The 'Ban' on practice of Talaq-e-biddet in India is a big step forward for women's rights in India. The National Commission for Women, on the other hand argues that the ban on triple Talaq isn't about creating a single law for everyone (a uniform civil code). Instead, it's about protecting women. The Supreme Court decided that triple Talaq, where a husband can end a marriage by saying Talaq three times, is illegal and unfair.

This quick and easy divorce is a cruelty on woman. The Apex Court is of the view that this practice isn't a true part of Islamic law and isn't protected by religious freedom laws. While, the All-India Muslim Personal Law Board[40] disagreed with the decision to ban triple Talaq, saying it interfered with their religious laws.

They worry that this new law won't really help poor Muslim women. These women might still be treated unfairly because they might not know their rights or be able to go to the police. To make a real difference, organizations need to educate women about their rights and support them if their husbands use triple Talaq. The legislature has always been of the view that the law banning triple Talaq was necessary because the practice continued even after it was ruled illegal.

The argument behind this is that protecting women from this harmful practice is important. However, some people argue that the government shouldn't interfere in personal matters like religion and marriage. While it's true that giving women more rights is generally good, it's important to remember that not all women are in the same situation. The idea of the helpless Muslim woman needing to be saved is often used to justify these kinds of laws, but this might not be true for every woman.

In author's opinion, the practice of Talaq-e-biddet gave husbands an unbridled power to end a marriage without any reason or fairness to the wife. This process didn't follow basic rules of justice. It was a completely unfair system that treated women badly and that was the core need, which off course originated with time, because of which the Society itself rebelled against it, the judiciary had to intervene & the Shayara Bano verdict came. The world is changing, and women deserve equal rights & in modern context, there's no need to follow such practices.

Bibliography:

1. Tahir Mahmood, Muslim Law in India (Central Law Agency 2010).
2. Mulla, Dinshah Fardunji, Principles of Hindu Law 20th ed. (LexisNexis Butterworths Wadhwa 2016).
3. Agha Ali Khan, Muhammadan Law (Central Law Publication 2015).
4. B.R. Ambedkar, The Constitution of India (Oxford University Press 1960).
5. M.V. Pylee, India's Constitution (S. Chand & Company Ltd. 2015).
6. Fyzee, Outlines of Muhammadan Law (Oxford University Press 2004).
7. Justice J.S. Verma Committee Report on Rape, Delhi: Ministry of Women and Child Development, Government of India, 2013.
8. Law Commission of India, Report No. 247 on Reform of Family Law (2006).
9. National Commission for Women, Annual Report (relevant year).
10. Shayara Bano v. Union of India and Ors., (2017) 9 SCC 1.

End Notes:

1. Syed Khalid Rashid, Muslim Law (5th edn., Eastern Law Book Company 2010) 106
2. Agil Ahmad, Mohammedan Law (24th edn., Central Law Agency 2012) 167
3. 'The Muslim Women (Protection of Rights on Marriage) Act, 2019 Act No. 20 of 2019'
4. Ahmad, Furqan. UNDERSTANDING THE ISLAMIC LAW OF DIVORCE. Journal of the Indian Law Institute, vol. 45, no. 3/4, 2003, pp. 484–508. JSTOR, http://www.jstor.org/stable/43951877. Accessed 27 July 2024.
5. Sohaira Siddiqui, Triple-Talaq and the Political Context of Islamic Law in India, 2 J. ISLAMIC L. 5 (2021)
6. Asghar Ali Engineer, The Rights of Women in Islam (London: C. Hurst & Co., 1992), 99.
7. Article 44 | Constitution of India 1950
8. Bharatiya Muslim Mahila Andolan. (n.d.). Bharatiya Muslim Mahila Andolan. https://bmmaindia.wordpress.com/
9. Ramakrishnan, S. (2016, July 1). India: Muslim women fight to overturn triple Talaq. Al Jazeera. Weblink: https://www.aljazeera.com/features/2016/7/1/india-muslim-women-fight-to-overturn-triple-Talaq
10. Triple Talaq- Big Reform, Better Result. (n.d.). Ministry of Minority Affairs Triple Talaq- Big Reform; Posted On: 22 JUL 2020 12:27PM by PIB Delhi By - Mukhtar Abbas Naqvi, Union Minister of Minority Affairs; Weblink: https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1640352
11. Application of Personal law to Muslims – Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including Talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).