Edited By – Kartikey Raja
This article is written by Anisha Sinha pursuing BBA.LLB(H) at Amity University Kolkata.
Triple Talaq also known as Talaq-e-Biddatorinstant divorce is a form of divorce where the husband instantly pronouncesTalaqthree times, as a result the marriage gets dissolved or invalid. In this form of Talaq, the parties get no time to mutually discuss or to settle down their marriage. Talaq-e-Biddat, which was later brought into practice is considered to be the most disapproved form of Talaq. Well, India is not the only country to define Talaq-e-Biddat as bad form of Talaq but many other predominant Muslim countries considered Talaq-e-Biddat or Intant Triple Talaq as bad Talaq i.e. no worth or value is given to such Talaqs. Quran itself does not encourages the practice of Triple Talaq.
The Triple Talaqjudgment is widely appreciated amongst various jurisdiction as a protection shield against the social evil such as this practice.Many criticized the government for not making relevant laws to prohibit such a regressive practice which made the life of Muslim women ‘hell’. The Muslim women since many years have been demanding to prohibit such regressive and bad practice of this form of talaq i.e. Triple Talaq, instant divorce. Finally, the Supreme Court provided an appropriate remedy to such bad practice of divorce.
Divorce is a dissolution of marriage through legal process by filing a petition in a court of law. When a court passes a divorce decree, the matrimonial alliance comes to an end. In India, the divorce procedure varies with each religion. This articlewill further focus upon the Muslim Personal Law.
In Muslim law, the husband can pronounce divorce in the following two ways: –
- Talaq-E-Sunnat (Triple Talaq)
- Talaq-E-Biddat (Instant Triple Talaq)
- TRIPLE TALAQ
Here the word “Sunnat” is derived from the Arabic word meaning traditional customs and practices i.e. these customs and practices are to be followed by the Muslim community. Talaq-e-Sunnat, is a revocable divorce that can be pronounced in Hasan or Ahsan forms. If a man willing to divorce his wife and spells Talaq once, he cannot spell again until the next three months. During this period, the man has the right to change his mind or reconcile with his wife as a result their marriage will remain valid and Talaq can be revoked. In both the forms of Talaq i.e. Hasan and Ahsan, both the parties get an ample scope to discuss and settle down their marriages.
Here the term “Biddat” is derived from the Arabic word meaning innovation in religious matters. Talaq-e-Biddat was later brought into practice. This is also known as Instant Triple Talaq. Here, the husband instantly pronounces Talaq straight three times as a result their marriage gets dissolved or invalid. In this form of Talaq, the parties get no time to mutually discuss or to settle down their marriage.
Talaq-e-Biddat, which was later brought into practice is considered to be disapproved form of Talaq because arbitration and reconciliation in prerequisite is absent.Talaq-e-Sunnat is considered as approved form of Talaq because arbitration and reconciliation are present in prerequisite. Well, India is not the only country to define Talaq-E-Biddat as bad form of Talaq but many other predominant Muslim countries considered Talaq-E-Biddat or Intant Triple Talaq as bad Talaq i.e. no worth or value is given to such Talaqs.
- JUDICIAL STAND
In the landmark case of ShayaraBano v. Union of IndiaTalaq-e-Biddat form of Talaq was challenged. In this case, ShayaraBano was married to Rizwan Ahmed for 15 years. In 2016, Rizwan Ahmed pronounced Instant Triple Talaq i.e. Talaq-e-Biddat to his wife ShayaraBano.
ShayaraBano filed a writ petition against the same, in the Supreme Court in which she challenged three Muslim Law practices: –
- Instant Triple Talaq i.e. Talaq-E-Biddat
- Nikah Halala – It is a practice where a divorced woman who wants to remarry her husband would first have to marry and obtain divorce from the second husband before she gets back to her first husband.
- Polygamy – It is a practice which allows Muslim man to have more than one wife.
In February 2017, the Supreme Court formed a five-judge constitutional bench. ShayaraBano was the main petitioner along with; Rizwan Ahmed, Union of India, Ministry of Law and Justice, Ministry of Women and Child Development, Ministry of Minority Affairs, National Commission for Women, All India Muslim Personal Law Board as respondents.
All India Muslim Personal Law Board stated that all the above three practices were a part of Muslim Religion and Supreme Court should not interfere with the religious matter. All these matters are outside the Jurisdiction of Supreme Court.
Hon’ble Chief Justice Jagdish Kehar and Hon’ble Justice Abdul Nazeer stated that Instant Triple Talaq is a part of Muslim Personal Law, which is protected under Article 25. So, Judiciary should not interfere and suggested that the parliament should make a call.
Hon’ble Justice Nariman and Justice Lalit stated that the Instant Triple Talaq practice is arbitrary in nature because it violates the women’s fundamental rights and for this reason the Supreme Court has the power to declare Instant Triple Talaq as unconstitutional through Article 14.
Hon’ble Justice Kurian Joseph stated that Instant Triple Talaq practice was considered as UN-ISLAMIC. i.e. it is not the essential Muslim Law Practice.
On 22nd August 2017, the five Judge Bench declared its decision in regards to Instant Triple Talaq case that its practice was considered as unconstitutional by a majority of a 3:2.Talaq-e-Biddat was declared illegal in spoken, written or through SMS/WhatsApp or any other electronic chat.
Later, a Bill was passed by Lok Sabha and Rajya Sabha where Instant Triple Talaq was made a punishable offence for which three-year imprisonment was prescribed.
- IMPORTANT ELEMENTS/PROVISIONS OF THE BILL
- OFFENCE AND PENALTY: -\
- The Act declares Instant Triple Talaq, whether in written or in electronic form to be void and illegal.
- The Act makes the Instant Triple Talaq a cognizable (without warrant can be arrested) offence with imprisonment up to three years plus fine.
- WHO CAN FILE A COMPLAINT?
- The wife against whom the Talaq has been declare; or any person related to her blood or marriage can file on her behalf.
- The magistrate has the power to provide bail. But he cannot provide bail without listening or hearing the woman.
- ALLOWANCE AND CUSTODY:
- The woman is entitled to seek allowance for herself and her dependent children.
- Also, the woman is entitled to seek custody of her minor children.
To conclude with, the Hon’ble Supreme Court declared the Instant Triple Talaq as unconstitutional and invalid where the parliament formulated a bill and declared Instant Triple Talaq as a cognizable offence.
 Shayara Bano v Union of India, (2017) 9 SCC 1
Author Name: Anisha Sinha
Published on: 18/07/2020