Islam, Women,Triple Talaq, and the Indian Judiciary

1. ISLAM AND THE INDIAN
JUDICIARY WITH REFERENCE TO
TALAQ-E-BIDDAT
PALLAVI DEVI
ASSISTANT PROFESSOR, PG DEPARTMENT OF LAW, GAUHATI
UNIVERSITY, ASSAM
PEN2PALLAVI@GMAIL.COM

2. THE PROBLEM
• the practices of talaq-e- biddat, nikah halala, polygamy.
• sec 2 of muslim personal law (shariat) application act, 1937:
• sec 2 of the shariat act, 1937 :notwithstanding any customs or usage to the contrary,
in all questions regarding intestate succession, special property of females, including
personal property inherited or obtained under contract or gift or any other provision
of personal law, marriage, dissolution of marriage, including talaq, ila, zihar, lian,
khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust
properties and wakfs (other than charities and charitable institutions and charitable
and religious endowments) the rule of decision in cases where the parties are
muslims shall be the muslim personal law (shariat).

3. CONCEPT OF MARRIAGE IN MUSLIM LAW
• Islamic marriage of three kinds:
a) Valid (Sahih).
b) Void (Batil).
c) Irregular or invalid (fasid).
• The idea of marriage as a pious civil contract.
• there should be a proposal of marriage, made by on behalf of one of the parties
to the marriage and accepted by or on behalf of the other at one and in or at the
same meeting.
• Islam treats man and woman as equal.
• Marriage is an act of ibadat, preserves mankind free from pollution.
• Kabin namah/nikahnama.

4. CONCEPT OF DIVORCE IN MUSLIM LAW
• Marriage is dissolved either by the death of a spouse or by divorce that has been
properly granted.
• Dissolution of marriage has been disapproved but made permissible because of
practical considerations.
• Divorce is restricted by the need of proper cause and must be in accordance with
sunnah.
• Should attempt to reconcile the differences and resolve disputes between the
parties.
• When complete separation takes place, party cannot remarry without the formality
of the woman marrying another man and being divorced from him (halala).
• A talaq may be effected by husband, and at times and by wife, in many forms. The
most known forms of divorce are:
a) Talaq-ul-Sunnat
b) Ila

5. CONCEPT OF TRIPLE TALAQ
• Triple talaq is a form of divorce of Muslim wife at the instance of her husband, which is
of three types:
1) Talaq-ul-sunnat
a. Talaq-e-ahasan(most proper)
b. alaq-e-hasan(proper)
2) Talaq-e-biddat:
a) Three pronouncements made during a single tuhr either in one sentence.
b) A single pronouncement made during a tuhr clearly indicating an intention
irrevocably to dissolve the marriage. (sinful)
Mere pronouncement of talaq by the husband or merely declaring his intentions or
his acts of having pronounced the talaq is not sufficient and doesnot meet the
requirements of law.
The impression that talaq or divorce in Shariah is unilateral is erroneous.

6. TRIPLE TALAQ V. DIVORCE AS PER TAFSIR
• Triple talaq is a form of talaq based on innovation introduced in the second
century of the Mohamedan era by the Omeyyade monarch.
• The essential feature of talaq-ul-biddat is its irrevocability.
• Giving irrevocable divorce at once or at one sitting or by pronouncing it in a
tuhr once in an irrevocable form, without allowing the period for reconciliation
runs counter to the mandate of holy Quran.
• Syed Ameer Ali quotes Radd-Ul-Muhtar, talaq is permitted only when the wife
by her conduct or words does injury to the husband or happens to be
impious…and it is obligatory to give divorce when the husband cannot fulfil his
duties, as when he is impotent or an eunuch. When there is no reasonable cause
for a talaq, it would render it invalid.

7. TRIPLE TALAQ V. DIVORCE AS PER
TAFSIR(CONTD..)
• Verse 229 in Quran says:
• A statement of intent to divorce is only permitted two times. After that, parties
should either stay together on just terms or separate with kindness.
• It further says:
• If he hath divorced her again (marratan) then she is not lawful unto him thereafter
until she hath wedded another husband, as mentioned in verse 230.
• The restriction was placed to ensure that talaq did not become a whimsical
mockery.
• There is a lack of clarity when moved from Quran to Hadith, Ijma and Qiyas for
answers.
• Imam Bukhari considers triple divorce as being valid from the verse 229 and
emphasises the word íf he divorces her’ which refer to the third time.
• Muslim husband mindset is dictated by the perception of divorce as a right.

8. REASONS FOR DISTORTION ON THE LAW OF
DIVORCE
• Judicial ignorance or irreverence
• Author’s of Muslim law like Mc Naughten and Mulla who decreed every Muslim
husband’s birth right to divorce his wife at whim.
• The ill educated maulvees of the village mosques who misguided their followers
by transmitting to them their own faulty understanding of divorce law.

9. CONSTITUTION, CONSTITUTIONAL MORALITY
AND TRIPLE TALAQ
• Art 13 makes pre and post constitutional law void in so far they violate the fundamental rights
under part iii of the constitution.
• Art 14: to include women of different denominations.
• Art 15: discrimination on ground of sex is prohibited.
• Art 21: the right of a woman to human dignity, social esteem and self worth are vital facets.
• Art 51A(E): to renounce the practice which are derogatory of the dignity of the woman.
• Art 51 A (F):
• Art 51 A(h): to develop scientific temper, humanism and the spirit of inquiry and reform.
• Triple talaq promotes gender inequality.

10. THE ALL INDIA MUSLIM PERSONAL LAW BOARD
(AIMPLB) ON TRIPLE TALAQ
• The AIMPLB argues that triple talaq is a matter of culture and Islamic beliefs and
maintains that fundamental rights donot apply to the personal law of Muslims in
India.
• Triple talaq via wats app is valid.
• Article 26 of the Constitution grants freedom to every religious denomination or
any section thereof to manage its own affairs in matters of religion.
• Presence of Art 44 in the constitution recognises the existence of separate
personal laws.
• State of Bombay v. Narasu Appa Mali, Art 13 of the Constitution of India does
not provide for personal laws. This is further supported by the fact that entry 5
in List iii expressly mentions the phrase ‘personal law’ which implies:
a. The omission in Article 13(3)(a) was conscious.
b. The intention of the framers was to leave it to the legislature to reform

11. THE QURAN AND SUPREME COURT ON
POLYGAMY
• Verse 3, Surah Nisa:
if you fear that you might not treat the orphans justly, then marry the
women that seem good to you: two, or three, or four. if you
fear that you will not be able to treat them justly, then marry (only) one,
or marry from among those whom your right hands possess. This
will make it more likely that you will avoid injustice.
• Verse 129, Surah Nisa:
you will not be able to treat your wives with absolute justice, not even
when you keenly desire to do so. it suffices (in order to follow the law of
allah that) you incline not wholly to one, leaving the other in suspense. if
you act rightly and remain god-fearing, surely allah is all forgiving, all
compassionate.

12. MEDIA ON TRIPLE TALAQ
• The Times of India screamed, Instant Talaq: unlawful, unlawful, unlawful.
• Hindustan Times with headline: No, No, No: Triple talaq is declared illegal by
SC.
• Indian Express has its headline Talaq, Talaq Talaq with a red line cutting across
it.
• The Hindu: No, No, No: Supreme Court on Instant Triple Talaq.
• Tribune restricted to instant triple talaq banned.
• No newspaper talked in detail about Khula or talaq –e-tafweez, talaq-Surah
Baqaah, Surah Nisa, Surah Talaq and Surah Azhab.
• These are all selective ignorance.

13. JUDICIAL RESPONSES ON TRIPLE TALAQ
• UPHOLDING THE PRACTICE (1833-1947) the judicial trend towards triple talaq
under muslim law was in favour of recognizing it and it was considered as
irrevocable divorce
• CRITICISMS AND REFORMS (1947-2005) the court raised a few important
questions regarding this practice of triple talaq, should muslim wives suffer this
tyranny for all time?
• TRIPLE TALAQ AND THE CONSTITUTIONAL IDEAS (2005-2015) that talaq must
be communicated to wife else it is ineffective and that talaq pronounced in
extreme anger is ineffective.

14. THE CASE OF SHARAYA BANO
• After this judgement: the AIMPLB issued an advisory through its website,
publications and social media platforms and advised the persons who perform
nikah to do the following:
• at the time of performing the nikah, the person performing the nikah will advise
the bridegroom that in case of differences leading to talaq, the bridegroom shall
not pronounce three divorces in one sitting since it is an undesirable practice in
shariat;
• that at the time of performing nikah, the person performing the nikah will
advise both the bridegroom and the bride to incorporate a condition in the
nikahnama to exclude resorting to pronouncements of three divorces by her
husband in one sitting

15. THE UNANSWERED QUESTIONS IN SHARAYA
BANO
• whether these marriage subsisted, or whether these women could go back to
their husbands.
• if their talaq is held invalid, will the women concerned be given maintenance for
the period past?
• and if they go back to their marital homes, would they run the risk of being
given a fresh divorce by their husbands by following the step by step method.
• this judgement also didn’t ask the husband to take them back. further if these
women want to marry somebody again, and their talaq is held invalid by the
court, how do they go about it is unclear. legally, they remain married to the
husbands who pronounced instant triple talaq.
• in each case the iddat period of three months after the pronouncements is over
and in case the estranged spouses are now willing to live together, could they
conduct a fresh nikah?
• but if the husband is unwilling to undergo a fresh nikah, or take the wife back,

16. CONCLUSION
• the essential attributes of a religion is protected under article 25 and not every
religious practice which is not integral to the religion.
• personal laws relating to marriage and divorce, infants and minors, adoption,
wills intestacy and succession, joint family and partition pertains to activities
which may be associated with religious practice, and may even have religious
origins in their form and content, but does not make them essential parts of
religion. such activities should be regulated by the state.
• art 25 should therefore be not allowed to trump the rights under articles 14 and
15. they must be harmoniously construed so as to give effect to both. Any
derogation from art 14 cannot be justified with reference to article 25.

17. .
THANK YOU