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Status of Triple Talaq
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Status of Triple Talaq

Talaq is an Islamic word which denotes divorce or dissolution of marriage. Under Islamic law, there are three types of Divorce. The first type of divorce is known as Talaq (which is at the instance of husband). The second type of divorce is known as Khula (which is at the instance of wife). The third type of divorce is known as Mubaraat (divorce by mutual consent). Talaq means liberty from the relationship of marriage immediately. Triple talaq is governed by the Muslim Personal Law (Shariat) Application Act 1937. Triple talaq takes place when the husband utters the word ‘talaq’ three times repeatedly in a row to his wife in order to end the relationship of marriage immediately. Triple talaq is also known as talaq-e-biddat. A triple talaq is a form of instant divorce.

Triple talaq is a customary practice which is prevalent among Muslims. Triple talaq is criticized for being unilateral and biased against Muslim women. Triple talaq is banned in 22 countries in the world, and it has also been challenged before the Supreme Court in many cases in India. The Muslim Personal Law gives the special privileges of triple talaq to the Muslim husband over their wife. On 30th July 2019, the Indian Parliament had passed a law known as Muslim Women (Protection of Rights on Marriage) Bill 2019 to make instant triple talaq a criminal offence in India.

Case Law

Shayara Bano Vs Union of India and Others.

Supreme Court - on 22nd August 2017

Writ Petition Civil No. 118/2016

On 10th October 2015, Rizwan Ahmad pronounced triple talaq to his wife, Shayara Bano. Shayara Bano approached the Court to declare the triple talaq as void ab initio. In the petition, it was submitted that the practice of talaq-e-biddat is violative of the fundamental right guaranteed to the citizens of India under Articles 14, 15 and 21 of the Constitution of India. Rizwan Ahmad stated that he had made many attempts to bring Shayara Bano back, but she refused to accompany him. Rizwan Ahmad had also approached the Family Court for restitution of conjugal rights. As Shayara Bano was not ready for reconciliation, he withdrew the suit for the restitution of conjugal rights. Rizwan Ahmad divorced Shayara Bano by serving talaq-nama dated 10th October 2015. Rizwan Ahmad also stated that the pronouncement of triple talaq (divorce) fulfils all the requirements of valid divorce under the Muslim Personal Law (Shariat) Application Act 1937. The main issue that arose from the petition was related to triple talaq.

On 22nd August 2017, the Supreme Court held that the triple talaq is manifestly arbitrary in the sense that the marital relationship can be broken capriciously and whimsically by a Muslim husband without making any attempts to reconciliation. Triple talaq is held to be violative of the fundamental rights mentioned under Article 14 of the Constitution of India. Section 2 of the Muslim Personal Law (Shariat) Application Act 1937 was declared void to the extent of the provision that is regarding the triple talaq. By a majority of 3:2, the practice of triple talaq was set aside. Hence, the Supreme Court held that the practice of triple talaq is unconstitutional, arbitrary and cannot be practised in future.

Muslim Women (Protection of Rights on Marriage) Bill 2019

The Muslim Women (Protection of Rights on Marriage) Bill was introduced and passed in the Lok Sabha in the month of December 2017 but was not passed in the Rajya Sabha. As the Muslim Women (Protection of Rights on Marriage) Bill was pending before the Rajya Sabha, the Muslim Women (Protection of Rights on Marriage) Ordinance was promulgated in September 2018. After the Muslim Women (Protection of Rights on Marriage) Ordinance lapsed, the Modi government re-promulgated the Muslim Women (Protection of Rights on Marriage) Ordinance in February 2019. On 30th July 2019, the Indian Parliament had passed a law known as Muslim Women (Protection of Rights on Marriage) Bill 2019. The Muslim Women (Protection of Rights on Marriage) Bill 2019 was passed by the Rajya Sabha with 99 votes in favour of the bill and 84 votes were against the bill.

The Muslim Women (Protection of Rights on Marriage) Bill 2019 is the outcome of a high-profile case named Shayara Bano Vs Union of India and Others. In this case, Shayara Bano was the victim of the triple talaq. In the Supreme Court’s landmark judgement on 22nd August 2017, it was held that the practice of triple talaq is unconstitutional, arbitrary and cannot be practised further. The Muslim Women (Protection of Rights on Marriage) Bill 2019 does not only make the triple talaq invalid, but also it criminalizes the practice of triple talaq. The Muslim Women (Protection of Rights on Marriage) Bill 2019 states that the triple talaq in any form- spoken, in writing or by electronic means (for instance email, SMS or WhatsApp) shall be void and illegal. It also states that the victim can seek the custody of a minor child in the cases of triple talaq. She can also seek for the maintenance from her husband.

A religious organization of Sunni Muslim scholars and clerics in Kerala named ‘Samastha Kerala Jamiathul Ulema’ moved to the Supreme Court seeking to declare the Muslim Women (Protection of Rights on Marriage) Bill 2019 as unconstitutional. The religious organization claimed that the Muslim Women (Protection of Rights on Marriage) Bill 2019 is violative of Articles 14, 15 and 21 of the Constitution of India and hence, it is liable to strike down. There has been no verdict on this matter yet.

Conclusion

After the bill has become an act, the triple talaq is considered as a criminal offence as per the Muslim Women (Protection of Rights on Marriage) Bill 2019. In case if any Muslim man (husband) commits the crime of triple talaq, then he can be punished with imprisonment for a period of 3 years and with a fine. Under the new law, the triple talaq is considered as a cognizable (a police officer has the power to arrest without a warrant and can also start an investigation with or without the permission of the Court) and non-bailable offence. Hence, the status of triple talaq as of today is void and illegal.

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