Vidur Thanawala & Vijayant Goel, Students, School of Law, Bennett University
[NOTE: The expressions are author's personal opinion and Nyayshastram does not endorse them]
Talaq means divorce in Arabic. Islamic Law has been derived from the teachings of the Quran and the traditions of the prophet. There are three types of divorce law under Islamic Law, namely, talaq-i-Sunnat, talaq-i-Hasan and talaq-i-Biddat. Triple Talaq or talaq-i-biddat is a customary practice in which the husband can dissolve a marriage by saying the word ‘talaq’ thrice to his wife. Under Islam, Biddat is an innovation that has no roots in a traditional practice. The Hanbali school of Islam rejected biddat stating that Muslim should follow the example set by Prophet (Sunnah) and try to improve it. It is banned in 22 countries across the world, including neighbouring countries of India like Pakistan and Bangladesh.
The practice gave men an advantage to get divorced without stating a valid reason. In the era of technology, the practice can be performed on electronic media like call, email and skype. According to the Census issued in 2011, 13.5% of the Muslim women get married below the age of 15 by their parents. 49% of the same get married between the age of 14-19. Bharatiya Muslim Mahila Andolan conducted a survey which revealed that 95% of the Muslim divorced women do not receive maintenance from their husbands.
Triple Talaq violates the contract of marriage under Muslim personnel law. The women do not get an equal share in the property nor the custody of the child after the end of the marriage. In a legal opinion, it is considered against the idea of natural justice. The practice is considered against certain constitutional principles like secularism, gender equality and the right to live with dignity. Abolition of triple Talaq was necessary to provide gender justice and gender equality among Muslim women. It will also end violation abuse within Muslim families.
Critical Analysis of the Judgement
The issue has been making news since a Muslim association, Bharatiya Muslim Mahila Andolan (BMMA), propelled a battle to boycott Triple Talaq and "Nikah Halala".
In 2015, Shayara Bano, an inhabitant of Uttarakhand, documented an appeal in the Supreme Court looking for a prohibition on the training after her significant other finished 15-year marriage by sending a letter articulating the word Talaq threefold. Her request before the Supreme Court was to proclaim talaq-e-biddat, polygamy and nikah Halala illicit and unlawful because they abuse the rights ensured by the Constitution under Articles 14, 15, 21 and 25. In 2015 in particular, the SC enlisted a suo motu to open intrigue case (PIL) appeal titled 'In Re: Muslim Women's Quest for Equality' to look at if self-assertive separation, polygamy and nikah Halala damage ladies' poise.
Muslim Personal Law (Shariat) Application Act of 1937 has just perceived triple Talaq as a legal right. In this manner, Instant Talaq was not, at this point, a specific law to stay liberated from the rigours of the central rights as it goes under the ambit of Article 13 of the Constitution.
Judges Nariman and Lalit struck down Triple Talaq as unlawful, making it the more considerable part sentiment. Before striking it down, Justices Nariman and Lalit analyzed whether Triple Talaq can be tried under Article 13(1) of the Constitution. A current point of reference, “Narasu Appa Mali”, had set out that specific law falls outside the domain of Article 13(1). As indicated by Narasu Appa, just systematized specific law can be examined for infringement of Part III of the Constitution. Applying this rule, Triple Talaq would fall under Article 13(1) just on the off chance that it is systematized personal law (under Section 2 of the Shariat Act).
As per Justices Nariman and Lalit, Triple Talaq is implemented and perceived by the Shariat Act. Therefore, it would fall solidly inside the articulation of laws in power' in Article 13(1)(b) and would be hit by Article 13(1) whenever there is a conflicting idea the arrangements of Part III of the Constitution, to the degree of such irregularity. Judges Nariman and Lalit then tried the legality of Section 2 of the Shariat Act (regarding Triple Talaq) under Article 14 of the Constitution. According to them, manifest arbitrariness of the Legislature done “capriciously, unreasonably as well as without adequate determining principle”, it is moreover something which is excessive and unbalanced.
Thus, Justices Nariman and Lalit held that:
"Obviously this type of Talaq [Triple Talaq] is clearly self-assertive as in the conjugal tie can be broken eccentrically and unconventionally by a Muslim man with no endeavour at a compromise to spare it”.
The majority bench comes to a decision that Triple Talaq is not an essential practice. However, the minority bench was the opinion that the practice of Triple Talaq was an essential practice to the Sharia Law, and thus was protected under Article 25 of the Constitution.
The Supreme Court, in the instant case, had to adjudicate on the issue of whether Talaq-i-biddat was protected under the ambit of Article 25 of the Indian Constitution. The Court believed the Practice of Talaq-i-biddat was not an essential practice to the Islamic Law and thus would not be protected under the ambit of Article 25 of the Indian Constitution.
The Court legitimized its perspective although the fact that the Hanafi School of Law practises it, but at the same time, the school also see it as a sin. The practise of Triple Talaq is against the essential principles of the Quran, and whatever is against the Quran is opposed to Sharia Law along these lines.
The majority judgement also relied on the expression
“what is bad in theology cannot be good in law”
Just because a large section of the society follows it, the practice cannot be held as an essential practice thus its verdict was to invalid the practice.
This brings us to a crucial question, what is essential practices as stated under Article 25 of the Indian Constitution. The essential practices rely upon the foundation, history and fundamentals of the religion; essential practices are those who are significant to the calling and proliferation of the religion, if a particular practice is found not to be prohibited under a religion, does not mean that it is an essential practice. Also, the fact that almost all Islamic nations have discarded on the ground that the same is not an essential practice.
The majority bench in its finding said that the practice was violative of Article 14 and could not be protected by Article 25(1) and thus struck down the backward practice.
The bench referred this practice to Sati Paratha in Hinduism wherein the practice was found regressive in nature and was removed from the religion. Adapting this ideology, the court invalidated the practise of Triple Talaq.
Justice Khehar, while delivering the minority judgement, held that the practice in hand is an essential practice under Islam Law. The Minority bench of the court defended this position on the ground that this was practised by a large part of the society. Since this practice has the assent of essential practices and is followed by a dominant part of Muslim populace, the said practice is pronounced to be an essential practice.
The minority bench disregarded the fact that this practice was misused by the husbands. The courts should administer equity, and the courts ought not to be dissuaded by simple details in apportion equity. In the end, the court finally invalidated the practice of Talaq-i-biddat, with a majority of 3:2.
The Muslim Women (Protection of Rights on Marriage) was introduced by Mr Ravi Shankar Prasad, Minister of Law and Justice in Lok Sabha. The Act was passed on 31st July 2019 with the assent of the President. As per the Act, if the Muslim man pronounces ‘talaq’ three times to divorce their wives in the form of spoken, written or electronic mode of communication; the same will be an offence under an Act.
The punishment for the same is fine and imprisonment for up to three years. The offence is cognizable and non-bailable. The offence is compoundable, i.e. if the husband and wife enter into a settlement or a compromise, the matter can be disposed of by the Magistrate on appropriate terms and conditions.
The Act has brought the practice under criminal liability; however, the matters related to divorce are generally dealt with the civil courts in India. Secondly, the Supreme Court declared the practice as unconstitutional stating that if the practice of triple Talaq is performed then the marriage will not be considered as ended. However, the Parliamentary Act consider the marriage has ended and provide punishment to Muslim men.
Even after the Supreme Court judgement, there were many cases of triple Talaq reported. Therefore, after two years of judgement, the Act was passed to criminalize the practice in order to cease it altogether. For example, the Constitution of India abolishes the practice of untouchability in India. Nevertheless, to protect the interest of people a legislation Untouchability (Offences) Act in 1955 which was passed and later it was renamed as Protection of Civil Rights Act, 1976.
Impact vis-a-vis Conclusion
Finally, 1400 years old practice has come to an end in India. Muslim women have suffered a lot and lived in fear of getting divorced anytime due to any sort of reason. Even the Holy Quran allows Talaq when an attempt of conciliation has been made between the couple in the presence of two witnesses.
Ever since the law which has been passed by the Parliament, triple Talaq has been a criminal offence thereby setting a punishment for the accused and hence Supreme Court judgement stating it unconstitutional has no meaning. The Muslim community believes that the government should not interfere with the practice of ‘Triple Talaq’, but the leader of the Muslim community should have all the right. The contentions raised by the community is that BJP wants to establish a Hindu Society in India and hence all this done is to target the Muslim minority.
All India Muslim Personal Law Board (AIMPLB) called the implementation of Act as
‘a black day in Indian democracy’.
They contended that triple Talaq is valid as per Sharia. For a Muslim citizen, it will be difficult to stop a practice of something which is allowed in Islam.
Beebak Collective, a women campaign alliance which is led by Hasina Khan, welcomed the decision which was given by the Supreme Court and they disagreed with the criminalization of triple Talaq. The contention raised stated that if the husband is in jail, then the women and children cannot claim post-divorce maintenance, ultimately leaving them in a more vulnerable state.
Bharatiya Muslim Mahila Andolan (BMMA), a Muslim lead organization, on the other hand, welcomed the implementation of Bill. They claimed that only criminalization of the act could reduce or cease the practise of talaq-i-biddat. For two years, i.e. before the implementation of the bill and after the Supreme Court Judgement; the husband performs the talaq-i-biddat and many of the women have not approached the court.
Under the broad term of social reform, legal reform is a necessary aspect and plays an important role. Most of the Muslim community comprises of poor and educationally deprived people in India. The new law will empower Muslim women and protect them from their husband. It will create awareness among Muslim men and women. The organization and community which deals in social justice and empowerment will gain a lot from this Act while spreading awareness among the Muslim people.
After the historic judgement, a significant step towards forming a Uniform Civil Code in India concerning Article 44 and the purview to bring the family law under the Fundamental Rights can be established. The Preamble of the Constitution of India lays down India as a Secular and Democratic state. A Secular state does not discriminate on the grounds of religion. A Secular state is focused on
a relation between man to man and not with the relation of man with God.
 Available at https://www.britannica.com/topic/bidah, last seen on 17/05/2020. Available at https://www.indiatoday.in/fyi/story/triple-talaq-muslim-women-supreme-court-sharia-law-islam-968630-2017-03-30, last seen on 17/05/2020.  The State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84 (India).  Shamim Ara v. State of Uttar Pradesh and another, AIR 2002 SC 3551 (India).  Ibid.  Available at https://qz.com/india/1709560/will-criminalising-triple-talaq-help-indias-muslim-women/, last seen on 16/05/2020.  Available at https://bmmaindia.com/, last seen on 16/05/2020.