Triple Talaq And The Indian Constitution- Applicability, Releveance And Scope

Triple talaq or Talaq-ul biddat is one of the various forms of divorce in Islam, where the husband can dissolve the marriage. Hedaya define it as a divorce where the husband repudiates his wife by three divorce in one sentence or where he repeats the sentence thrice within tuhr[1].‘Talaq-e-biddat’ is effective, the very moment it is pronounced and and it is irrevocable when it is pronounced.[2]. Such a divorce is lawful, although sinful, in Hanafi law and in shia law it is not permissible.[3] It is considered as good in law though bad in theology and is most commonly practised in India.[4]

The Muslim Personal Law (Shariat) Application Act, 1937 allows muslims to follow their personal laws in respect of certain subjects. Section 2 of the Act says “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 properly 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 mubarat, 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.” Clearly muslims are allowed to follow their personal laws in respect of marriage and divorce, among other things. However, the question was always open to determine whether the practice of Triple Talaq is recognized in the act of 1937 and even if it is recognized then whether it forms an essential part of Hanafi School of Sunnis Jurisprudence under Article 25 of the Indian Constitution?

Read – All About Triple Talaq

These issues have been discussed in the landmark judgement of Shayara Bano v. Union of India[5] in which the Supreme by majority of 3:2 have set aside the practice of Triple Talaq. The verdict receive huge applause, particularly from women rights groups on account it being perceived as a decisive step towards attaining a gender just society.[6] However, the majority judgement itself constituted two separate opinions. As per justice Nariman and Justice Lalit the question is to be decided whether the Muslim Personal Law (Shariat) Application Act, 1937 could be said to recognize and enforce triple talaq as a rule of law to be followed by the courts in India and if not, whether the precedent that personal laws are outside the scope of Article 13(1) of the Indian Constitution is correct in law.[7] For the first part the answer came in affirmative that the act not only recognizes all forms of talaq, including triple talaq, but also enforce them.[8] Considering the second part of their question, they treated the act of 1937 as pre-constitutional legislative enactment and concluded that the act was well within the purview of Article 13(1) of the Indian constitution and can be declared void to the extent to which it is inconsistent with Part III of the indian constitution[9]. Thus they held that the 1937 Act in so far as it seeks to recognize and enforce triple talaq is violative of Article 14 and therefore void to that extent[10].

Considering the same sets of questions, Chief Justice Khehar and Justice Nazeer in their dissenting judgement held that since triple talaq had been in practice for more than 1400 years, it has become an essential part of the faith of Sunni Muslims of Hanafi sect and thereby protected under Article 25 of the Indian Constitution.[11] However, Justice Kurien Joseph was concerned about the question of legal sanctity of Triple Talaq under Muslim Law. Relying on the quranic verses and the two judge bench decision of the Supreme court in Shamin Ara v. State of Uttar Pradesh[12] Justice Joseph held that Triple Talaq has no legal sanctity[13] and it is not an integral part of hanafis.[14] Hence, the supreme court of India have set aside the practice of Triple Talaq with a majority jugement of 3:2.

But even after these detailed observations, the question that remained unanswered as to what would happen if a husband pronounces triple talaq and refuses to recognize his wife? Would he be compel to maintain her and live with her? This task was undertaken by the the parliament of India and for that purpose The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on June 21, 2019. A point be noted here is that this bill was preceded by the unsuccessful bills of 2017 and 2018 and the The Muslim Women (Protection of Rights on Marriage) ordinances of 2018 and 2019 ( 2nd ordinance).

The bill of 2019 defines talaq in section 2 (c) as talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband. Section 4 of the bill states that “Any Muslim husband who pronounces talaq shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.” The bill allowed a muslim woman to claim the subsistence allowance from her husband (section 5) as well as custody of the minor child (section 6). Section 7 of the act also held the offence to be compoundable (clause b), cognizable, only when complain has been made by the woman or her blood relative (clause b) and non-bailable (clause c). The government succeeded to pass the bill in both house of the parliament on 30th of July 2019 and it became a law after receiving the assent of the President. Now one may say that criminalisation of this practice is a great achievement as it seeks to ban a social evil that continues to exist for a very long time. However, with close examination and research it is not very difficult to see the flaws of this act. In Islamic law, the marriage is a civil contract and it may be terminated under certain circumstances.[15] However, the government by criminalizing a form of divorce in Islamic Law have criminalises a civil act which is a private matter between a husband and his wife. The rule of criminal law states one of its basic principle as ultima ratio, which means that criminal liability, being the most restricting measure in terms of rights and freedoms of persons, must be applied in exceptional cases only, when other legal or non-legal means are not sufficient in order to stop criminality.[16] However, in this case since the practice was already set side by the Supreme Court[17] and the uttering of the words talaq-talaq-talaq will have no legal effect on the marriage then for what reason it has been made a criminal act?

Again, Section of the Act 5 says that “a married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for her and dependent children, as may be determined by the Magistrate.” Now let’s suppose a person was arrested and denied bail by the magistrate, consequently he will not be able to do any sort of economic activity. And if this happened then how could he be able to maintain his wife from inside the jail? Another point about which there is great deal of controversy is the punishment of 3 years imprisonment. If we look at our criminal justice system, then we will find out that three years imprisonment is provided for the commission of very serious offences like rioting armed with deadly weapons (Section 148), making or selling instrument for counterfeiting Indian coins (Section 233), Sedition (Section 124A) etc. that could have very serious effect for our country. Here the triple divorce which have absolutely no effect on any individual have been punished with imprisonment for a period of three years. Thus, the act is providing excessive, arbitrary and irrational punishment which is incompatible with our criminal justice system.

Section 7 (b) of the act says an offence punishable under this Act shall be compoundable, at the instance of the married Muslim woman upon whom talaq is pronounced with the permission of the Magistrate, on such terms and conditions as he may determine. Now if we look at section 320 of the Criminal Procedure Code, 1973 then we will find out that compromise is allowed in private matters like defamation, adultery, private trespass etc. On the contrary, in case of triple divorce which is obviously a private matter between a husband and his wife, the offence could only be compromised on such terms and condition as the magistrate may determine. So in this respect also it has been treated as a more serious offence than what it should be considered in the normal course of our criminal justice system.

Read – Transformative Constitutionalism – The Saga Of Social Change

JS Mill in the first chapter of ‘On Liberty’ have argued “That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”[18] But after the judgment of the Supreme Court there was absolutely no harm to the wife or anyone else, so on what basis this act is providing punishment of three years imprisonment. This entire episode have created controversy as the act met with criticism[19] and its constitutionality was challenged in the Supreme Court on ground of violation of Article 13,14,15, 21and 25 of the Indian Constitution.[20] The matter is currently sub-judice in Supreme Court. It will be interesting to note as what will come out at the end of the proceedings.

  • Written by Syed Mohd Mehndi from Faculty Of Law, Aligarh Muslim University

  • 2nd Runner-up of Justice Shah Muhammad Sulaiman National Essay Writing Competition organized by Unity P.G. and Law College, Lucknow

[1]1 Syed Khalid Rashid, Muslim Law 109 (5th ed. 2009)

[2]2 Shayara bano v. Union of India, (2017) 9 SCC 1

[3]3 Rashid, supra, 109

[4]4 Sarabhai v. Ralia Bai, 1906 (8) BOMLR 35

[5]5 Shayara Bano v. Union of India, (2017) 9 SCC 1

[6]6 See The Express News Service, Triple Talaq verdict: Activist welcome Supreme Court Decision, The Indian Express (Aug 23, 2017, 4:17 am),

[7]7 Shayara Bano v. Union Of India, (2017) 9 SCC 1, at 331

[8]8 Id., at 347.

[9]9 Id., at 342, 348 & 396.

[10]10 Id., at 392, 395 & 396.

[11]11 Id., at 288 .

[12]12 Shamim Ara v. State of Uttar Pradesh, (2002) 7 SCC 518

[13]13 Shayara Bano v. Union of India, (2017) 9 SCC 1, at 301

[14]14 Id., at 324

[15] Abdul Qadir v. Salima, (1886) 8 All 149.

[16]16 Husak, Douglas. “The Criminal Law as Last Resort.” Oxford Journal of Legal Studies, vol. 24, no. 2, 2004, pp. 207–235.

[17]17 Shayara Bano v. Union Of India, (2017) 9 SCC 1

[18]18 JS Mill, John Stuart. On Liberty. London: Longman, Roberts & Green, 1869;

[19]19 Faizan Mustafa, Power, not justice, The Indian Express (Aug 1, 2019 11:40:50 am)

[20]20 Writ petition (civil) number 993 of 2019.

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