India: Triple Talaq, Judgment Of Hon'ble Supreme Court And The Most Anticipated Triple Talaq Bill

What is Triple Talaq?

Instant Talaq or "Triple Talaq" or "Talaq-e-Biddat" is an Islamic practice that allows men to divorce their wives immediately by uttering the word "talaq" (divorce) three times. The pronouncement can be oral or written, or as in recent times, delivered by electronic means - telephone, SMS, email or social media.

Different types of talaq in Islam: (Don't misunderstand all other types of talaq with Triple Talaq)

Muslim Personal Law says that a talaq can either be given by the husband or by the wife. It can also be a mutual divorce.

Talaq given by husband are of following types:

As per the shariat there are 3 ways in which a husband can divorce his wife/wives - Talaq-e-Ahsan, Talaq-e-Hasan and Talaq-e-Biddat. It is claimed that Talaq-e-Ahsan and Talaq-e-Hasan are recognized by the Holy Quran but Talaq-e-Biddat is a creation of the Ummayad Kings for their ill-intentions.

"Talaq-e-Sunnat" or "Talaq-ul-Raje" is a revocable divorce that can be pronounced in Hasan or Ahsan forms.

"Talaq-e-Ahsan" is the 'most proper' form of talaq in which the husband expresses divorce in single sentence - "I have divorced thee" - during the period of tuhr (when the wife is not menstruating) and then has to wait till the iddat period is over. Iddat period for a woman who has been divorced by her husband is usually three menstrual cycles. During this time, she cannot marry another man. If before the completion of iddat, the husband resumes co-habitation with his wife or says that "I have retained thee", the divorce is revoked.

In case the woman is pregnant, the iddat period lasts until she gives birth. The waiting period for a woman after menopause is three months.

"Talaq-e-Hasan" is the 'proper' form of talaq. In this form, three successive pronouncements of talaq are made by the husband in three successive tuhrs (when the woman is not menstruating). In case of a nonmenstruating woman, its pronouncement may be made after the interval of a month or thirty days between the successive pronouncements. This form of talaq can be revoked any time before the third pronouncement.

"Talaq-e-Biddat" or "Talaq-ul-Bain" (Irrevocable divorce) is instant Triple Talaq and is effective as soon as the word "Talaq" has been pronounced thrice. In this form of talaq, three pronouncements can be made during a single tuhr (when the woman is not menstruating) by saying "I divorce thee" thrice at the same instant i.e. there need not be any waiting period between two successive pronouncements.

The Hon'ble Supreme Court of India, in its recent landmark judgment of Sayara bano Vs. Union of India pronounced on August 22, 2017, has set aside the practice of Talaq-e-Biddat or "Triple Talaq" with the majority Ration of 3:2. The Judgment by the minority bench further directed the Government of Union Of India to lay a proper legislation in order to regularize the proceedings of divorce as per shariat law.

What is the landmark Judgment passed by The Hon'ble Supreme Court in Sayara Bano Vs UOI.

The Hon'ble Supreme Court heard the Petition for ban of practice of Triple Talaq through a Constitution bench comprising of 5 Judges from different religions - Justice Kurian Joseph, a catholic, Justice UU Lalit, a Hindu and Justice RF Nariman, a Parsi, Chief Justice Khehar, a Sikh and Justice Abdul Nazeer, a Muslim. On August 22, 2017, this bench declared Triple Talaq or Talaq-e-Biddat as unconstitutional by a 3:2 majority. Justices Kurian, Lalit and Nariman delivered the majority judgement while Chief Justice Khehar and Justice Nazeer dissented with the majority.

Chief Justice Khehar And Justice Abdul Nazeer [Minority Judgment- written By Chief Justice Khehar]

The minority bench observed that:

"we are satisfied, that this is a case which presents a situation where this Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to 'Talaq-e-Biddat'. We hope and expect that the contemplated legislation will also take into consideration advances in Muslim 'personal law' – 'Shariat', as have been corrected by legislation the world over, even by theocratic Islamic States. When the British rulers in India provided succor to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind".

While dissenting the majority view the Minority bench observed as following

"Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing 'talaq-e-biddat' as a means for severing their matrimonial relationship.

The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining 'talaq-e-biddat' (three pronouncements of 'talaq', at one and the same time) – as one, or alternatively, if it is decided that the practice of 'talaq-e-biddat' be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate".

Justice Kurian Jospeh [Part of Majority]

Justice Kurian Jospeh has boldly shown his disagreement on the Minority view of CJI by stating that:

"I find it extremely difficult to agree with the learned Chief Justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law." Majority view of Justices R.F Nariman and U.U Lalit [Majority- Judgment written by RF Nariman] The bench held that the practice of Triple talaq is arbitrary in nature by observing the following:

"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 393 fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act (Muslim Personal Law Shariat Application 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 Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him."

Taking into consideration the arguments of various religious groups and aggrieved petitioners, the Hon'ble Supreme Court with the majority ration of 3:2 set aside the practice of Triple Talaq or Talaq-e- Biddat by holding it unconstitutional and arbitrary in nature; the Hon'ble Court further directed the Government of Union of India to consider the views taken by the court in the Judgment and lay down a proper legislature to regulate the practice of divorce in Muslim community.

The Muslim Women (Protection of Rights on Marriage) Bill, 2017 (Triple Talaq Bill)

Taking into consideration the views of the Hon'ble Supreme Court in the Judgment of Shayara bano Vs. Union of India, the Hon'ble Law Minister Shri Ravi Shankar Prasad took an initiative to present the Triple Talaq Bill before the Lower House, Lok Sabha, which was passed by majority by the Lower house on December 28, 2017. The Statement of Objects and Reasons of the Bill notes that the judgment has not worked as a deterrent in bringing down the number of instances of triple talaq. It explains, "It is, therefore, felt that there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce. In order to prevent the continued harassment being meted out to the hapless married Muslim women due to talaq-ebiddat, urgent suitable legislation is necessary to give some relief to them.

The Union Government claims that the legislation would help in ensuring the larger Constitutional goals of gender justice and gender equality of married Muslim women and help sub-serve their fundamental rights of non-discrimination and empowerment.

Highlights of Bill

The preamble of the Bill reads as "To protect the rights of the Married Muslim Women and prohibit divorce by pronouncing Talaq by their Husbands and provide for matters connected therewith or incidental thereto"

The main highlights of the said bill are Sections 3 and 4 which criminalize the practice of Triple Talaq. Section 3 of the Bill states that "talaq-e-biddat" shall be 'void' and 'illegal'. This is followed by consequence of such void action in terms of Section 4 thereof, stating, whoever pronounces talaq-e-biddat shall be punished with imprisonment which may extend to three years and fine. Further Section 7 of the Act makes the offence cognizable and non-bailable offence.

The said Bill has gained appreciations at the same time the Bill has been heavily criticized by many.

The Bill will now be placed before the Upper House i.e. before Hon'ble Rajya Sabha on January 2, 2018, and if the said Bill is passed with Majority the same will be sent for approval to the Hon'ble President of India and if the Hon'ble President assents to the said Bill then the new act will come in force as The Muslim Women (Protection of Rights on Marriage) Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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