Jus Rerum 2021-01-21: 9 Min

Triple Talaq: An Analytical Study

Author: Ritik Goyal

Student of IMS Law College, Noida

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INTRODUCTION:

TALAQ is a practice in which there is the dissolution of the marriage and terminating marriage ones for all (separation of husband from his wife or vice versa)  and leaves behind the distribution of property, child custody, alimony, division of debt, and much more and among all this most unhappy is associated with the psychological well-being of the children and adult offspring of the divorced parents they are the one who falls under greater unhappiness, depression, anxiety and a weaker sense of personal control. Divorce is a practice not so good as it impacts not only society but also the children who are at their developing stage have a great impact on their mental health.

WHAT IS TRIPLE TALAQ?

Triple talaq is an Islamic practice in which husband can get a divorce by pronouncing the word ‘talaq’ (divorce) three times it can be oral (telephone, voice note etc.) or written (WhatsApp chat, email, social media etc. )

Triple talaq can be initiated by the husband only except in two cases:

TYPES OF TALAQ IN MUSLIM CULTURE :

There are two methods in which the husband and wife can get a divorce (talaq):

  1. Talaq-e-Sunnat; These types of divorce are revocable. this is subdivided into two types:

  1. Talaq-e-Biddat; or Talaq-ul-bain: It is also called instant triple talaq and this divorce is irrevocable. This divorce is complete as soon as the husband pronounces the word talaq thrice at the same time and this practice was challenged in Shayara Bano vs Union of India case along with nikah halala and polygamy.

CASE RELATED TO TRIPLE TALAQ :

Sayara Bano vs Union of India[1]: On 22 august 2017 case come at the supreme court in which the petitioner Shayara Bano asked in the petition to hold three practice talaq-e-biddat, nikah halala[2] and polygamy[3] as unconstitutional as they violate article 14, 15, 21 and 25 of the constitution of India.

In this case, a 5 judge bench was set up under the then chief justice of India Jagdish Singh Khehar and a judgment was passed by a majority of 3:2 in which they declared the practice of instant triple talaq or talaq-e-biddat as unconstitutional under Article 14 read with Article 13(1) and said that such practice is impermissible under Islamic law.

After the judgment of Shayara Bano case government introduced the bill in the parliament Muslim women (protection of the right of marriage) 2019 to criminalize the triple talaq. In July 2019 bill was passed and became an act as such in which clause 3 of chapter 2 states any pronouncement of Talaq by a person upon his wife, by words either spoken as written or in electronic form or any manner, shall be void and illegal and also provide the punishment with the can extent up 3 years and fine.

AFTER EFFECTS OF TRIPLE TALAQ :

After triple talaq woman has to face many problems of maintenance, alimony, custody of the children :

For maintenance after the divorce, we have a landmark judgment of Mohammed Ahmed Khan vs Shah Bano Begum[4] and others also called as Shah Bano maintenance case. In this, a muslin women of 62 years old named Shah Bano filed a petition for seeking maintenance/alimony from her husband Mohd Ahmed Khan under section  125 of the code of criminal procedure 1973. After detailed arguments, the decision was passed by the Supreme Court of India in 1985. On the question whether CRPC, 1973, which applies to all Indian citizens regardless of their religion, could apply in this case and the then chief justice of India Y.V.Chandrachud gave their decision that section 125  of CRPC provides for the provision of maintenance of wife during the marriage or after divorce if she is not able to sustain herself. However, Khan argued that the Muslim personal Law of India requires the husband to provide maintenance only till the Iddat period after divorce.

And this lead to enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 in this law overturned the verdict in the Shah Bano case and said the maintenance period must be made obligated for the iddat period. The new law said that if a woman couldn't accommodate herself, the magistrate had the capacity to direct the Wakf Board for giving the oppressed woman means for livelihood and her needy children as well.[5]

For the custody of the children, we have clause 6 in chapter 3 of Muslim women (Protection of Rights of Marriage) act 2019 in which it states that “a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the magistrate” and normally magistrate looks into the best interest of the children by examining the ability of the mother or the father to be a parent of the child.

PRESENT SCENARIO: 

There are the different rule for divorce among religion for Hindus we have Hindu marriage act, 1955, for Muslim is the Dissolution of Muslim marriage act, 1939, for Parsi we have Parsi marriage and divorce act, 1936 and for Christians is Indian divorce act, 1869. In today’s time divorce rate in India is still very low as compared to other countries all this because in India arranged marriage has been a tradition for centuries and marriage is thought to be for life. Latest notice by the Supreme Court on a petition seeking direction to centre to implement gender and religion-neutral grounds in matters of awarding maintenance, alimony and uniform ground for divorce for all citizen.

CONCLUSION:

There are still many more things that can be done for the women empowerment and for decreasing the dependence for their livelihood on others as in case of husband and wife there are many women in the country who are totally dependent on their husband for their daily needs. As we saw above it impacts not only husband and wife but society as humans are the social animal of the society in which healthy marriage is good for not only for couples mental and physical health but also for the children, growing up in a happy home protects them from mental, physical, educational and social problems.


End Notes

1. (2017) 9 SCC 1 Writ Petition (C) No. 118 of 2016

2. Nikkah Halala: is a practice in which if the wife wishes to get married to his divorced husband again she has to first get married to another man and give divorce to him and then he can marry again to her previous husband. 

3. Polygamy: is a practice in which the husband marries to more than one woman at the same time.

4. 1985 AIR 945, 1985 SCR (3) 844

5. What is Shah Bano case?, The Indian Express (2021), https://indianexpress.com/article/what-is/what-is-shah-bano-case-4809632/ (last visited Jan 20, 2021).


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