TRIPLE TALAQ

Triple talaq 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 sittings. It can be given in
written, oral or as in the recent times by the electronic modes as well. If it is
pronounced in three different sittings, 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 The Muslim Personal Law (Shariat) Application
Act, 1937 which mandates triple talaq in India. It is a 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 3. 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 judgment4, the Supreme Court held it to be unconstitutional. In
Shamim Ara v. State of U.P. & Anr.5, Court invalidated the triple talaq and held that
the mention of date of talaq cannot constitute triple talaq. Facts which led to the
divorce must be mentioned 6. Also, the High Court of Delhi in Masroor Ahmed v.
State (NCT of Delhi) & Anr.7 held that talaq pronounced in the gist of anger is invalid
and there must be an attempt of reconciliation between the parties before pronouncing
talaq. It also held that triple talaq is valid only when reconciliation is not possible
between the parties8. Bombay High Court in Dagdu Latur v. Rahimbi Dagdu Pathan,

1
ILR (1906) 30 Bombay 537 (539)
2
The Muslim Personal Law (Shariat) Application Act, 1937
3
Id.
4
Shayara Bano v. Union of India, (2017) 9 SCC 1
5
AIR 2002 SC 3551
6
Id.
7
 2008 (103) DRJ 137 (Del.)
8
Id.
Ashabi9 held that a Muslim man cannot pronounce a talaq at his will. The
circumstances which led to talaq must be proved in the Court.

The most important verdict that was passed by the Supreme Court is Shayara Bano v.
Union of India10. The five judge bench of Supreme Court held the triple talaq
unconstitutional by a majority of 3:2. The majority opinion was delivered by Justice
Nariman, Justice Lalit and Justice Kurian Joseph while the minority opinion was
delivered by Justice Khehar and Justice Nazeer. Justice Nariman 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)11. It can be held void to the extent of the inconsistency with the
1937 act12. 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 act13 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"14. 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 15 cannot be read
independently, it must be read with article 2516and that this is a 1400 year old practice
and an essential part of their religion.

9
 2003 (1) BomCR 740
10
(2017) 9 SCC 1
11
Indian constitution
12
The Muslim Personal Law (Shariat) Application Act, 1937
13
Id.
14
(2017) 9 SCC 1
15
Indian constitution
16
Id.
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.

Even after the passing of this judgment17, triple talaq is still prevalent in Indian
society. There are as many as 100 cases of instant talaq since this judgment 18. 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 act19. This bill proposed to make triple talaq a void 20 and an illegal practice and
also make it punishable with imprisonment upto 3 years 21. It also sought to impose
fine22 on the perpetrators. This bill also carves out provisions for the maintenance of
the wife and her dependent children23. The wife herself or her close relatives can file
the complaint under this act. It also makes the act cognizable 24 and non bailable25. 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 bill26.

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

17
(2017) 9 SCC 1

100 cases of instant triple talaq in the country since the S .. Read more at:
18

http://timesofindia.indiatimes.com/articleshow/62279519.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst, TOI, Dec 28, 2017 
19
Muslim Women(Protection of Rights on Marriage) Bill
20
Sec 3 Muslim Women(Protection of Rights on Marriage) Bill
21
Sec 4 Muslim Women(Protection of Rights on Marriage) Bill
22
Id.
23
Sec 5 of Muslim Women(Protection of Rights on Marriage) Bill
24
Sec 7(a) of Muslim Women(Protection of Rights on Marriage) Bill
25
Sec 7(c) of Muslim Women(Protection of Rights on Marriage) Bill
26
Sec 7(b) of Muslim Women(Protection of Rights on Marriage) Bill
women to whom triple talaq is pronounced and her close relative can complain about
the talaq27.

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”.

27
Sec 7(a) of Muslim Women(Protection of Rights on Marriage) Bill