Unconstitutionality of Triple Talaq

Talaq! Talaq! Talaq! You must have heard and watched in the movies how Muslim men divorced their wives saying Talaq thrice and leaving their wives right away. And the wife is left helpless having no other recourse to save her marriage. Well, in this blog we will read what is Triple Talaq and how it is constitutional with case laws briefly. You will also get to know how the passing of the Triple Talaq bill has helped Muslim women. 

What is Triple Talaq?

Dissolution of marriages in Muslim can be done two ways by the husband. Firstly, Talaq-e-Sunnat is a traditional form of dissolution of marriage and is further categorized into Talaq-e- Ahsan and Talaq-e- Hasan. Secondly, Talaq-E- Biddat is also known as Triple Talaq. Triple Talaq is a process where a husband can divorce his wife by pronouncing ‘Talaq’ thrice. The effect of this type of Talaq is immediate and irrevocable. Triple Talaq cannot be used by the wives for divorcing their husbands.

The Triple Talaq bill is also known as the Muslim Women (Protection of Rights on Marriage) Bill was passed by the Indian Parliament on 30^th July 2019. The law was enforced by the Indian government on 1^st August 2019 where Triple Talaq by Muslim men is regarded as a criminal offence.

Scenario before enforcement of Triple Talaq law

Even though Triple Talaq has been practiced over years in Islamic law, however, there is no mention of it in the Quran. It is considered a bad or sinful form of divorce as compared to other forms of divorce in Muslim law.

As I have mentioned earlier, this form of divorce is used by the husbands only and gives no right to the wife for questioning the reason behind Talaq. The husband is not bound to give any form of explanation for pronouncing Talaq thrice.

Triple Talaq was misused by the husbands as there were no such constraints to prohibit such forms of divorce. Even a text message stating Talaq thrice amounts dissolution of marriage. Triple Talaq is effective immediately after it has been pronounced. Thus it is advantageous for the husband to pronounce without giving any reason or explanation. Hence it violates the rights of women and is considered to be against the equality and justice of the wife. This form of Talaq leaves no scope for maintenance.

Constitutional validity of Triple Talaq

In Shayara Bano v Union of India, the Supreme Court declared the Triple Talaq to be unconstitutional in 2017. The petitioner Shayara Bano in this case challenged three things in her petition, which included Triple Talaq, Nikah halala, and polygamy. Nikah halala is where the parties are divorced and want to remarry, the woman has to marry another individual and get a divorce from them, and then she can remarry her previously divorced husband. Polygamy is practiced in Muslim law where Muslim husbands are allowed to have more than 1 wife.

The Supreme Court before declaring the unconstitutionality of Triple Talaq took several points into consideration which include, that Talaq is a form of divorce that is governed under Muslim personal law, and the Supreme Court has no jurisdiction to challenge any such essential provision of personal law concerning religious matters. However, Triple Talaq violated the fundamental right of women and is arbitrary.  Article 14 states that any such provision which is arbitrary and violates the fundamental rights, the Supreme Court has the power to declare the provision to be unconstitutional. 

The constitutional validity of this sinful practice of Triple Talaq was challenged on Articles 14, 15, and 21 of the Constitution of India. Allahabad High Court held the pronouncement of Talaq as wrongful and violative of Article 14 of ItheIndiann Constitution in Smt. Sumaila vs. Aaqil Jamil where the husband divorced his wife by pronouncing Talaq thrice. 

Legal Development

Even though the Supreme declared Triple Talaq to be unconstitutional and illegal, several cases of Triple Talaq were still registered. Thus the central government was asked to make a law on Triple Talaq. In December 2017 Lok Sabha passed a bill known as the Muslim (Protection of Rights on Marriage) Bill, however, the bill was not passed in Rajya Sabha and it lapsed.

In September 2018, an ordinance was passed by the Cabinet where Triple Talaq was held to be a criminal offence and punishable with 3 years of imprisonment. 

Finally, in July 2019, this bill was passed in both Lok Sabha and Rajya Sabha along with the assent of the President. The enactment of the Muslim (Protection of Rights on Marriage) Bill made Triple Talaq a cognizable offence and provided punishment of 3 years of imprisonment.

Conclusion

Society has always and possibly even today is discriminating against women. A woman’s opinion, beliefs, rights, choices were never given importance and instant Triple Talaq is an example of one such practice. Divorce, in the author’s opinion, is amongst the most important decision of a person’s life and it affects the lives of both spouses equally, then also, the so-called inferior gender has no say in it. Thus bringing a historic change in the Muslim personal law was important. With criminalizing the pronouncement of Triple Talaq a step towards the empowerment of the minority community seemed to be taken by the government. 

Despite of the enforcement of the law, Triple Talaq is still practiced. If such an act is practiced against you, then you can take the help of the best lawyers on Lead India, who aim to deliver you proper justice against such criminal practice. We offer a wide range of lawyers having their expertise in several spheres of legal matters such as marriage, divorce, criminal matters, bail, etc. The well-experienced lawyers at Lead India also provide online legal advice.