Authored By – Akanksha Kumari, Amity University Haryana

A) Introduction

Triple Talaq or Talaq-e-biddat is a form of Islamic divorce that enables a Muslim man to divorce his wife by simply saying the word ‘talaq’ thrice in a single sitting. In India, this has been a long-standing social, legal, and gender discourse extending to the contours of Islamic family law within the Indian subcontinent. Such a practice is a concerning issue for women’s rights and gender equality.

Triple Talaq, which has a long tradition in Islamic law, authorizes Muslim men to divorce their wives without their consent. The unilateral and arbitrary nature of this practice has been controversial for decades. The Supreme Court, in the landmark judgment of Shayara Bano v. Union of India (2017), held that the practice of Triple Talaq is unconstitutional as it violates the fundamental rights of Muslim women and is not in consonance with the principles of gender equality and justice as embodied in the Constitution of India.

Furthermore, this decision empowered Muslim women by safeguarding their rights. The Supreme Court’s judgment ultimately led to the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019. The enactment of this law signifies the importance of upholding constitutional values of equality and non-discrimination, regardless of religious beliefs.

Keywords:

Triple Talaq, Unconstitutional, Equality, Justice, Rights of Women, Protection

B) Meaning & Definition

Triple Talaq is a form of divorce, also known as instant divorce, in Islamic law, where a husband pronounces ‘talaq’ three times in one sitting—either verbally, in writing, or through electronic means. This practice is unilateral, allowing the husband to divorce his wife without her consent, leading to the immediate and irrevocable dissolution of marriage. The term biddat itself signifies a deviation from accepted religious practices, making this form of divorce a controversial issue within Islamic jurisprudence.

C) Historical Background

Triple Talaq has its origins in the teachings and revelations of Prophet Mohammad, which were recorded in the Hadith. During the early Islamic era, with the advent of Prophet Mohammad’s teachings and the revelation of the Quran, guidance for marriage and divorce within the Muslim community was established.

The Quran, the holy scripture of Islam, provides guidance related to marriages and divorce in several verses. One such verse, Chapter 65 (Surah At-Talaq), discusses the waiting period (iddah) of a Muslim woman. This allowed Islamic scholars to elucidate the principles of divorce, including Triple Talaq.

Triple Talaq has been influenced by various schools of thought, social and cultural factors, and the evolving role of women in Muslim society. Different Islamic scholars have held different views on the interpretation of Triple Talaq due to the diverse nature of Islamic jurisprudence.

Islamic jurisprudence is not monolithic; it comprises various schools of thought, each with different interpretations. The Hanafi school of thought, one of the major Sunni schools, believes that if a husband pronounces ‘talaq’ three times in one sitting, it leads to an irrevocable divorce (Talaq-e-Biddat). This practice allows a man to unilaterally divorce his wife.

However, the Maliki school of thought follows a stricter approach. According to this school, if a husband pronounces talaq three times in a single sitting, it is considered a single revocable divorce (Talaq Raj’i), meaning the wife enters the iddah period, during which reconciliation is encouraged. If the iddah period expires without reconciliation and the husband still intends to divorce, a new divorce pronouncement is required.

The Shafi’i and Hanbali schools of thought adopt even more restrictive approaches, providing opportunities for reconciliation through the iddah period. Thus, interpretations of Triple Talaq vary across Muslim communities. In regions where the Hanafi school predominates, instant Triple Talaq is widely practiced, leading to the vulnerability of women. However, in areas influenced by the Maliki, Shafi’i, or Hanbali schools, a more deliberative process of divorce is followed, offering opportunities for reconciliation.

D) Forms of Triple Talaq

Marriage in Islam can be dissolved either through divorce or by the death of one spouse. Significantly, Islamic law recognizes various types of divorce. A Muslim husband can give talaq to his wife anytime during the marriage with the intention of dissolving it. However, certain conditions must be met by the husband during the pronouncement of talaq.

1. Talaq (Divorce by Husband)

This form of divorce is given unilaterally by the husband. It is further divided into two types:

• Talaq-ul-Sunnat:

This form of divorce allows for reconciliation and compromise. Both Shia and Sunni sects recognize Talaq-ul-Sunnat as a valid form of divorce. It is further divided into:

• Ahsan: The husband pronounces talaq once when the wife is not on her menstrual cycle and does not cohabit with her during the iddah period. If he does so, the divorce is revoked.
• Hasan: The husband pronounces talaq three times in three successive menstrual cycles when the wife is pure. There must be no sexual intercourse between the couple during these periods. If they engage in intercourse, the divorce is revoked.

• Talaq-e-Biddat:

Also referred to as Triple Talaq, this form of divorce is considered sinful and is not an approved method. It involves the husband pronouncing talaq three times in a single sitting, making the divorce immediate and irrevocable. Only Sunni Muslims recognize this type of divorce, while Shia and Maliki schools reject it.

2. Khula (Divorce by Wife)

In this form, the wife seeks divorce by returning the mehr (dower) or other compensation to the husband. However, the husband must consent to the divorce for it to be valid.

3. Talaq-e-Tafweez (Delegated Divorce)

This form of divorce is recognized by both Shia and Sunni sects. Here, the husband delegates the right of divorce to his wife, allowing her to initiate the divorce under certain conditions specified in the Nikahnama (marriage contract).

E) Comparison with Other Countries

The debate over Triple Talaq has global significance. Many Muslim-majority countries have evolved their legal frameworks to address this issue according to their cultural, legal, and religious dynamics.

Initially, in India, the Islamic community followed the Hanafi school of thought, permitting the practice of Triple Talaq. However, significant legal developments led to its prohibition. The Supreme Court’s decision in Shayara Bano v. Union of India marked a legal victory for Muslim women’s rights. The judgment led to the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalized Triple Talaq and safeguarded the rights of Muslim women.

In contrast, countries such as Indonesia, the world’s largest Muslim-majority nation, do not recognize Triple Talaq. Indonesia follows the Shafi’i school of thought, which mandates that talaq must be performed in court and reviewed by the judiciary. The Marriage Law of 1974 requires husbands to file for divorce in a religious court, which then reviews the reasons for separation and provides opportunities for reconciliation. While bypassing this legal process is not penalized, this system prioritizes justice over arbitrary divorce, ensuring that women’s legal rights are protected and that they have access to financial support and legal remedies.

Through this comparative analysis, it is evident that Triple Talaq has been widely condemned or reformed through legal measures. Across jurisdictions, the underlying principle remains the same: Triple Talaq fundamentally violates the rights and dignity of Muslim women, making its recognition incompatible with justice and equality.

F) Judicial Pronouncements on Triple Talaq

The practice of a Muslim husband instantly divorcing his wife through Triple Talaq has been declared unconstitutional, void, and illegal after decades of campaigning by Muslim women. This issue came into the limelight when the Supreme Court took up the matter following petitions filed by seven victims and women’s rights groups against Triple Talaq.

Mst. Zohara Khatoon v. Mohd. Ibrahim

In the case of Mst. Zohara Khatoon v. Mohd. Ibrahim, the court held that Talaq-ul-Biddat or Triple Talaq is the most sinful and immoral form of divorce, as it grants the husband unilateral power to divorce. This case was a turning point, raising fundamental questions about the legality of Triple Talaq in India. Moreover, the court ruled that Triple Talaq was not a fundamental component of Islamic law and, therefore, was not protected under Article 25 of the Constitution of India, which guarantees freedom of religion.

Over the decades, the practice of instant Triple Talaq was challenged in the Supreme Court, culminating in a historic victory for women in the Muslim community.

Shayara Bano v. Union of India (2017)

The landmark judgment in Shayara Bano v. Union of India (2017) declared Triple Talaq unconstitutional, marking a turning point in Islamic law. In this case, Shayara Bano challenged the constitutionality of instant Triple Talaq after her husband divorced her using this practice. Many women’s rights activists supported her petition.

The primary issue in the case was that Triple Talaq violated fundamental rights under the Constitution of India, particularly:

• Right to Equality (Article 14)
• Right to Life and Personal Liberty (Article 21)

The judgment was delivered by a five-judge bench, resulting in a split decision of 3:2 ratio. Three judges declared Triple Talaq unconstitutional, while two judges favored a legislative solution to address the issue.

The court emphasized that while the practice of Triple Talaq was primarily followed by the Hanafi school, it was sinful. To curb this practice, the Parliament of India enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, following the Supreme Court judgment in 2017.

The Muslim Women (Protection of Rights on Marriage) Act, 2019

This Act criminalizes the pronouncement of Triple Talaq and imposes a jail term of up to three years on offenders. Additionally, it makes the practice of Triple Talaq a cognizable and non-bailable offense, meaning that the police can arrest the accused without a warrant.

The Act also ensures that:

• The aggrieved woman and her dependent children receive financial allowance.
• The custody of minor children is granted to the wife.

This Act represents a significant step in protecting the rights of Muslim women and abolishing the practice of Triple Talaq.

G) Legal Framework of Triple Talaq in India

The legal framework of Triple Talaq is rooted in Islamic Personal Law, which governs family matters among the Muslim community. Triple Talaq refers to the practice where a husband unilaterally pronounces “talaq” three times in one sitting, leading to the immediate termination of the marriage.

In India, the legal framework is multifaceted, encompassing:

• Islamic Personal Law
• Constitutional Provisions
• Legislative Reforms

The interplay between religious practices, constitutional rights, and societal expectations highlights the ongoing debates about balancing religious freedom and individual rights, particularly gender justice.

H) Legislative Response

Following the Shayara Bano case, the Parliament of India enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019. This Act:

• Criminalized the practice of Triple Talaq.
• Made it a cognizable and non-bailable offense.
• Imposed a punishment of up to three years imprisonment along with a fine.

Key Provisions of the Act

• Section 3: Triple Talaq, when given by a Muslim husband, is void and illegal, irrespective of its form (oral, written, or electronic).
• Section 4: Provides punishment—imprisonment up to three years and a fine for any husband practicing Triple Talaq.
• Section 5: Entitles the aggrieved wife and dependent children to financial allowances.
• Section 6: Grants custody of minor children to the wife.

I) Social Implications of Triple Talaq

1. Influence on Women’s Social Standing and Empowerment

• Vulnerability and Marginalization: Triple Talaq left many Muslim women in precarious situations, with husbands able to divorce them unilaterally without notice or justification.
• Empowerment through Legal Protections: The abolition of Triple Talaq has empowered women, enabling them to seek justice and security under the 2019 Act.
• Gender Equality: The elimination of Triple Talaq strengthens gender equality, helping women challenge patriarchal norms within marriage and society.

2. Family Dynamics and Marital Relationships

• Disruption of Family Structures: Arbitrary Triple Talaq led to abrupt marital breakdowns, leaving many women and children without financial or emotional support.
• Increased Divorce Rates: The practice led to high divorce rates within the Muslim community, often without accountability from the husband.
• Psychological Impact: Many women experienced emotional trauma, isolation, and financial hardship due to sudden divorce.

3. Social Stigma and Economic Consequences

• Stigma of Divorce: Divorced Muslim women often face social exclusion, especially in conservative communities.
• Economic Hardship: Many women found themselves without income or financial security post-divorce.
• Increased Legal Support: The 2019 Act ensures that divorced women have access to financial support, alimony, and child maintenance.

4. Religious and Cultural Implications

• Challenges to Traditional Islamic Law: The prohibition of Triple Talaq has prompted reinterpretation and reform within the Muslim community.
• Potential for Broader Reforms: This reform has fueled debates on gender equality in Islamic personal laws.
• Community Division: Some conservative factions argue that the ban infringes upon religious freedom, while progressive groups welcome the reform.

5. Social Justice and the Role of the State

• State Intervention for Gender Justice: The ban on Triple Talaq demonstrates the state’s commitment to social justice and gender equality.
• Addressing Gender Discrimination: The prohibition is part of a larger movement toward gender justice in India.
• Public Awareness and Social Change: The legal shift has sparked public discussions on women’s rights and religious laws.

J) Conclusion & Comments

The issue of Triple Talaq has garnered significant attention across legal, social, and political spheres, reflecting the shifting landscape of personal laws and gender justice in India.

A landmark moment was the Shayara Bano judgment in 2017, where the Supreme Court declared instant Triple Talaq unconstitutional. This judgment emphasized the need for personal laws to align with constitutional values of justice, equality, and gender rights.

In response, Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, criminalizing Triple Talaq. While this law aims to protect Muslim women’s rights, it has also sparked debates on the criminalization of religious customs.

The legal reforms surrounding Triple Talaq reflect broader challenges in balancing religious traditions with gender justice. Moving forward, inclusive discussions, public awareness, and legislative clarity will be crucial in fostering a society that upholds equality, dignity, and justice for all.