Triple Talaq: End of an Era

1. Introduction:

This article will take you through various facets of Triple Talaq, its significance under Muslim Personal Law as well as its judicial history in India. There had been a long ongoing debate on this issues before the Hon’ble Supreme Court of India in Shayara Bano & Ors. Vs Union of India & Ors.[1] held the practice as violative of fundamental right under Article 14 of the Constitution and struck down the system as void.

2. What is Triple Talaq?

Triple Talaq a.k.a Talaq-E-Biddat is a form of divorce that was practised in Islam, whereby a Muslim man could divorce his wife with the blink of an eye by pronouncing “talaq” (the Arabic word for divorce) three times. The pronouncement could be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or even social media.  It is one of the several types of divorce prescribed by the Shariat Law. The man did not need to cite any cause for the divorce and the wife need not have been present at the time of pronouncement. After a period of ‘iddat’ (In Islam, a period of waiting is the period a woman must observe after the death of her husband or after a divorce, during which she may not marry another man in order to ascertain the paternity of the child born after divorce or death) during which it was ascertained whether the wife is pregnant, the divorce became irrevocable.

3. How was it practiced?

Originally, as the recommended practice, a waiting period was required before each pronouncement of ‘talaq’. During such a period, reconciliation was attempted/considered by the husband & wife. However, it later became common to make all three pronouncements in one sitting. While such a practice of instant pronouncement was frowned upon, it was not prohibited. The Quran lays down a three-tiered calibrated divorce, keeping in mind the human frailties. It has to be pronounced before witnesses and over three sittings over a period of three months. These months are to allow the couple to reflect on their relationship and not come to a hasty conclusion. As a first step, when there is marital discord, the Quran advises the husband to reason (fa’izu hunna) with his wife through discussions. If differences persist, they should refrain from any conjugal acts till they settle their dispute (wahjuru hunna); if even this fails, the husband is instructed, as a third step, to once again explain (wazribu hunna) to his wife, the gravity of the situation and to caution her that it can become common knowledge and may not be in the interest of both parties. As a fourth step, the Quran advises that if even the third step fails, the fourth step of “arbitration” must be followed. In this step, a member from each of the spouse’s family is present and the parties try to make amends in the strained relationship.

It is only after all four steps have failed that a husband pronounces the first talaq. The husband has to compulsorily wait for a wife’s iddah (menses) to get over to pronounce talaq. During the three-month cycles, a man cannot give his third talaq.

4. How/Why did it become a problem in India?

In the traditional Islamic jurisprudence, triple talaq was considered to be particularly disapproved, but legally valid, form of divorce. However, changing social conditions around the world led to increasing dissatisfaction with traditional Islamic law of divorce since the early 20th century and various reforms had been undertaken in different countries other than India.

Unlike most Muslim-majority countries, Muslim couples in India are not required to register their marriage. Muslim marriages in India are considered to be a private matter, unless the couple decided to register their marriage under the Special Marriage Act of 1954. Owing to these historical factors, the checks that have been placed on the husband's unilateral right of divorce in other countries and the prohibition of triple talaq were not implemented in India. That is where the problem of triple talaq was rooted.

5. Legal Contest/Judicial Background:

The Islamic concept of Triple Talaq has been considered by various courts of the country including the Supreme Court of India in various cases before finally striking it down in Shayara Bano (Supra). We will have a look at some of the important cases in this realm.

• Rashid Ahmad and Anr. vs. Anisa Khatun and Ors.[2]:

In this case, the Privy Council had decided in favour of the practice of triple talaq upholding it as completely valid under law. The facts and circumstances under the said case were set in a completely different era involving various other issues as well. Hence the same need not be discussed in detail.

• Mohd. Ahmad Khan vs. Shah Bano Begum & Ors. [3]:

This concept was first considered by the Hon’ble Supreme Court in this landmark case which is seen as one of the legal milestones in the battle for protection of rights of Muslim women. Though the crux of this case was maintenance of a Muslim woman and her children by her divorced husband, the concept of Triple Talaq was roped in because of the manner in which Shah Bano was divorced viz. by Triple Talaq.

In April 1978, a 62-year-old Muslim woman, Shah Bano, filed a petition in court demanding maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer in Indore, Madhya Pradesh. Khan had granted her irrevocable talaq. Shah Bano went to court and filed a claim for maintenance for herself and her five children under Section 125 of the Code of Criminal Procedure, 1973. However, Khan contested the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the iddat period after divorce. However, the apex court upheld the decision of the high court awarding maintenance to Shah Bano under S. 125 Cr. P.C. and also increased the quantum of maintenance however, no conclusion was made on the system of Triple Talaq.

• Masoor Ahmed vs State (NCT of Delhi)[4]:

In this case after considering the legal recognition of this system under various schools of Islam the High Court of Delhi came to the conclusion that triple talaq pronounced at the same time, is to be treated as a single pronouncement of divorce. One of the issues before the court was also the legality of Talaq-e-Biddat or Triple Talaq. The Court held that for severing matrimonial ties finally, the husband would have to complete the prescribed procedure, and thereafter, the parties would be treated as divorced. However, the legality of the concept itself was not upheld or stuck down.

• Nazeer vs Shemeema[5]:

Even though the legality of Talaq-e-Biddat or Triple Talaq was not directly in question, the Kerala High Court, deprecated the practice of Talaq-e-Biddat and also called upon the legislature, to codify the law on the issue, as would result in the advancement of justice, as a matter of institutional form.

• Shayara Bano & Ors. Vs Union of India & Ors.[6]:

Finally, came along the case which would be the most historical when it comes to Triple Talaq. A constitutional bench of the Hon’ble Supreme Court of India struck down the practice of Triple Talaq as illegal and violative of fundamental right guaranteed under Article 14 of the constitution. The court positively observed that in the case of Shamim Ara vs State of UP & Anr.[7], it was held that ‘triple talaq’ lacks legal sanctity and is the law applicable in India by operation of Article 141 of the Constitution of India. The court also said that “Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place.”

The Court observed that it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained Under Article 14 of the Constitution of India. The Hon’ble Supreme Court observed that “In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.”

6. Abrogation of this practice in other Muslim Nations:

This practice of “Triple Talaq” has been abrogated by way of legislation in the following countries, a lot of which are Muslim Nations or consist a large chunk of Muslims in their population:

1. UAE
2. Algeria
3. Egypt
4. Iraq
5. Jordan
6. Kuwait
7. Lebanon
8. Libya
9. Morocco
10. Sudan
11. Syria
12. Tunisia
13. Yemen
14. Indonesia
15. Malaysia
16. Sri-Lanka