Triple Talaq is a form of marriage dissolution in Muslim Law, whereby a husband
can give the divorce to his wife by stating Talaq three times in one row. The
presence of wife is not required, she can be given Talaq without assigning valid
reason. The term "Talaq" refers to the repudiation of marriage by husband under
Muslim law. The practice of triple Talaq has been prevailing since ancient times
Historically, the rules of divorce were governed by the Sharia, as interpreted
by traditional Islamic jurisprudence, although they varied depending on the
legal school. In Modern Times, as personal status (family) law were codified.
They generally remained within the orbit of Islamic Law, but control over the
norms of divorce shifted from traditional jurists to the state.
Triple Talaq is 1400 year old practice among Sunni Muslim. This is not
mentioned in the Quran and the Sharia law. As per Quran, marriage is intended to
be unbounded in time the relationship between the spouses should ideally be
based on love and the important decision concerning both spouses should be made
by mutual consent.
When the marital harmony cannot be attained, the Quran allows
and advises the spouse to bring the marriage to an end although this decision is
not to be taken lightly and the community is called upon to intervene by
appointing arbiters from two families to attempt a reconciliation. The Quran
establishes two further means to avoid hasty divorces, it prescribes two waiting
periods of three months before the divorce is final in order to give the husband
time to reconsider his decision, and a man who takes an oath not to have sexual
intercourse with his wife, which would lead to automatic divorce, is allowed a
four month period to break his oath.
The Quran modified the gender inequality of divorce practices that existed in
pre-Islamic Arabia, although some patriarchal elements and the others survived
and flourished in later centuries. Before Islam, divorce among the Arabs was
governed by unwritten customary law, which varied according to region and tribe
its observance depended on the authority of the individual and groups involved.
In the opinion of classical jurist variously classified pronouncement of Talaq
as forbidden and reprehensible unless it was motivated by a compelling cause
such as impossibility of cohabitation due to irreconcilable conflict, though
they did not require the husband to obtain court approval or provide a
justification. The jurist imposed certain restrictions on valid repudiation for
example the declaration must be of sound mind and not coerced. Upon Talaq, the
wife is entitled to the full payment of Mahr if it had not already been paid.
he husband is obligated to financially support her until the end of the waiting
period or the delivery of her child, if she is pregnant. In addition she has a
right to child support and any past due maintenance, which Islamic law requires
to be paid regularly in the course of marriage. It may involve "Triple Talaq"
i.e. the declaration of Talaq repeated three times or a different formula "you
are Haram for me".
In the legal school view is that a triple Talaq performed in
a single meeting constituted a "major" divorce , while other classified it as a
"minor" it reflects pre-Islamic divorce customs rather than Quranic Principles,
though legally valid form of divorce in traditional Sunni jurisprudence,
Muhammad denounced the practice of triple Talaq, and the second Caliph Umar
punished husbands who made use of it.
In the light of above, triple Talaq should be banned. It is Un-Quaranic, goes
against the spirit of the constitution and most importantly it is unjust and
unhuman. After being divorced the woman becomes homeless overnight, left
destitute with no help for children or most women are traumatised for life and
find it difficult to recover from the shock. Hence, the Indian Government took
steps against the practice of triple talaq when in October 2016, Justice Anil R
Dave and Justice Adarsh Kumar Goel while delivering a judgement onPrakash and
Others v. Phulavati and Others, observed that Muslim women are subjected to
There is no safeguard against arbitrary divorce and second
marriage by her husband during currency of the first marriage, resulting in
denial of dignity and security to her. They pointed out that the matter needs
consideration by the supreme court, as the issue relates not merely to a policy
matter but to fundamental rights of women under Articles 14, 15 and 21 and
international conventions and covenants.
Hence, they directed the court to register a suo motu PIL and put up before the
appropriate Bench as per orders of Hon’ble the Chief Justice of India to look at
the matter of Triple Talaq, Nikah Halala and polygamy. Thereafter, Mrs. Shayara
Bano of Allahabad, who was divorced from her husband through Triple Talaq filed
a writ petition under article 32. In her submission, she wrote"
of Talaq-E-Biddat (unilateral Triple-Talaq) which practically treats women like
chattel is neither harmonious with the modern principles of human rights and
gender equality, nor an integral part of Islamic faith, according to various
noted scholars. Muslim women have been given Talaq over Skype, Facebook and even
text messages. There is no protection against such arbitrary divorce.
women have their hands tied while the guillotine of divorce dangles, perpetually
ready to drop at the whims of their husbands who enjoy undisputed power."She
also mentioned that the legislature has failed to ensure the dignity and
equality of women in general and Muslim women in particular especially when it
concerns matters of marriage, divorce and succession.
In the same case, AG Mukul Rohatgi observed that"Gender equality, gender
equity and a life of dignity and status is an overreaching constitutional goal."Adding
that the practices which are under challenge, namely, triple Talaq, Nikah Halala
and polygamy are practices which impact the social status and dignity of Muslim
women and render them unequal and vulnerable qua men belonging to their own
community women belonging to other communities and also Muslim women outside
Article 25 of the Constitution which confer the right to practice, preach
and propagate religion are "subject to the provisions of Part III", which means
that it is subject to Articles 14 and 15 which guarantee equality and
non-discrimination. In other words, under our secular Constitution, the right to
the freedom of religion is subject to and in that sense, subservient to other
fundamental rights such as the right to equality, the right to
non-discrimination and the right to a life with dignity.
Consequently, the court
after daily hearings came to the conclusion with majority of 3:2 that the triple Talaq is unconstitutional and directed the central government to make
legislation within 6 months i.e. by 22nd Feb 2018. Complying with the orders of
the apex court the central government drafted the bill "Muslim Women Protection
of Rights on Divorce) Bill 2017 states that the Muslim husband will be punished
with 3 years of imprisonment if he gives the instant divorce. The bill is yet
to be passed by Parliament.