“Instant triple Talaq criminalized but, triple talaq survived the Shayara Bano case. The continued pleas from the Muslim section to criminalize talaq-ul-sunnat mark the failure of the Shayara Bano case.”

1.Shayara Bano v. Union of India (2007) SC:

On August 22, 2017, the Supreme Court’s five-judge bench delivered its eagerly anticipated verdict in the Triple Talaq Case, declaring the practice unconstitutional by a 3:2 majority. Of course, the Court’s heroism is somewhat debatable.

Majority:Rohinton Nariman J. and U.U. Lalit J. 

Concurring:Kurian Joseph J. 

Dissenting: CJI J.S. Khehar and Abdul Nazeer J.

1.1 Facts:

In the celebrated case of Shayara Bano vs. Union of India, Bano took a stand against certain Islamic practices including Talaq-e-Biddat (triple talaq), polygamy, and Nikah Halala. On February 16, 2017, the Supreme Court demanded written submissions from Bano, the Union of India, various women’s rights organizations, and the All India Muslim Personal Law Board (AIMPLB). The Union of India and women’s rights groups sided with Bano, asserting these practices were unconstitutional. AIMPLB, on the other hand, argued that these practices were protected under Article 25 of the Constitution as essential Islamic features, beyond judicial scrutiny per Article 13(2).

By March 30, 2017, a 5-judge constitutional bench was assembled. On August 22, 2017, the bench declared instantaneous triple talaq unconstitutional by a 3:2 majority.

1.2 Issues:

– Is talaq-e-biddat, specifically Instantaneous Triple Talaq, an essential Islamic practice?

– Does Instantaneous Triple Talaq violate any fundamental constitutional rights?

– Is Triple Talaq protected under Article 25 of the Constitution?

– Does the Shariat Act endorse Triple Talaq?

1.3 Judgment:

The Supreme Court, in its celebrated yet somewhat underwhelming judgment on August 22, 2017, declared only the practice of instantaneous triple talaq unconstitutional by a 3:2 majority. The bench included members from various faiths: Chief Justice JS Khehar (Sikh), Justices Kurian Joseph (Christian), RF Nariman (Parsi), UU Lalit (Hindu), and Abdul Nazeer (Muslim).

Justices Nariman and Lalit found talaq-e-bidat arbitrary and unconstitutional, while Justice Joseph deemed it contrary to the Quran and, hence, lacking legal sanction. They concluded that instantaneous triple talaq was invalid both theologically and legally.

In dissent, Chief Justice Khehar and Justice Nazeer argued that triple talaq is a fundamental religious practice of Islam, protected under Article 25 of the Constitution as it is widely practiced by Muslims.

The core issue was whether talaq-e-bidat was an essential religious practice. The majority decided it was not, thus permitting state regulation under Article 25 exceptions.

2. Talaq-e-Biddat: What Has Been Unconstitutionalized

India’s divorce laws are primarily governed by the Hindu Marriage Act and the Indian Divorce Act. Muslims, with their historical and traditional perspectives on marriage and divorce, view divorce as ‘Talaaq,’ categorized into various types. Here, we address the now-unconstitutional talaq-e-biddat, or instant triple talaq.

Instant triple talaq occurs when the husband pronounces ‘talaq’ (divorce) three times in a single instance—whether in person, by phone, email, or text. In short, instant triple talaq has been declared unconstitutional.

2.1 Key features include:

– Immediate effect upon pronouncement.

– Irrevocability: Once pronounced, it cannot be undone, even if regretted.

– No mandatory counseling or waiting period.

– Controversial legality and criticism for potential misuse.

3.  How impactful or delusional shayara bano judgement:

Shayara bano case as also famous among people with the name of triple talaq case is known for it’s very bold and needes step : the unconstitutionazation of triple talaq.

This is the image the case left in the mind of society, the judgement has been marked as a heroic move towards the muslim women. Whereas, the reality is that triple talaq is still valid and has not been declared unconstitutional, it is instant triple talaq tht is deemed unconstitutional by the judgment. There is mars distance difference between both statements , triple talaq continues to violate the fundamental rights of muslim women and traumatize the society .

4. Instant Triple Talaq vs. Triple Talaq:

Any Muslim of sound mind and maturity may divorce without needing a specific cause. Sunni law validates talaq under compulsion, intoxication, or fraud, thus questioning the necessity of sound judgment. Talaq can be oral or written (talaqnama).

Originally, “talaq” meant “dismissal” or “freedom,” specifically referring to divorce in Muslim law. Although “divorce” and “talaq” are often used interchangeably, “talaq” follows Muslim Personal Laws, while divorce proceedings under the Dissolution of Muslim Marriage Act, 1939, have different regulations.

4.1 Triple Talaq: Talaq-ul-Sunnat

Talaq-ul-Sunnat, or Talaq-ul-Raje, is a revocable type of divorce allowing time for reconciliation and arbitration. Unlike talaq-e-biddat, it is not immediate or irreversible. It provides a window for reconsideration, reflecting the Prophet Mohammed’s teachings. Talaq-ul-Sunnat is seen as the more acceptable form of talaq, although it remains a contentious practice

4.2 Talaq Ahsan (The Very Proper Form of Talaq):

In the illustrious realm of “appropriate” divorce methods, Talaq Ahsan stands out for its sheer elegance. The husband must pronounce “talaq” once during a period of purity (tuhr) when the wife is not menstruating. Following this pronouncement, a 90-day iddat period ensues—a time for the couple to work on reconciliation, as if that’s ever straightforward.[1]

During the iddat, the talaq remains revocable, provided the husband abstains from sexual intercourse. If the couple engages in intercourse during this period, the talaq is automatically nullified—because obviously, the most effective way to ensure reconciliation is to make the wife lure her husband back into bed. After the iddat period ends, the talaq becomes irrevocable. This form of talaq is touted as the “most proper” because it offers a chance for reversal, assuming the husband manages to follow the rules and avoids consummation.

Conditions:

1. The husband makes a single pronouncement of divorce.

2. The pronouncement is made during a period of purity.

3. The husband abstains from sexual intercourse for 90 days.

4. After iddat, the divorce becomes irrevocable.

4.3 Talaq Hasan (The Proper Form of Talaq):

Talaq hasan is said to be the proper form of talaq where the husband makes three consecutive pronouncements made during successive tuhr periods. There must be abstaining from sexual intercourse until third pronouncement is made. After third pronouncement the talaq is irrevocable.

Talaq Hasan, the so-called “acceptable” form of divorce, requires the husband to pronounce “talaq” three times over three consecutive periods of the wife’s purity (tuhr). If she’s not menstruating, these pronouncements are spaced a month apart. Each declaration must be made during a time of purity with absolutely no sexual activity in between, because why make it simple?

Here’s how it goes: During her first period of purity, the husband pompously declares “talaq.” No sex allowed after this. He then waits for the next tuhr and repeats the process.

Finally, in her third period of purity, before any sexual activity can possibly occur, he announces the third pronouncement is made of “talaq.” Will put a stamp of irrevocability after the third pronouncement of talaq.[2]

5. Talaq-e-Hasan: The Breathing Devil in Society

Talaq-e-Hasan is often criticized as arbitrary and irrational, contravening Articles 14, 15, 21, and 25 of the Constitution, along with international human rights conventions. It’s seen as neither compatible with modern human rights principles nor a core tenet of Islamic faith. The notion that a woman must somehow or the relatives convince the husband for the arbitrative way of talaq.

In the Shayara Bano case, while the focus was on criminalizing instant triple talaq, the issue of talaq-e-hasan wasn’t addressed. This practice, which forces women into a position where they must “lure” their husbands back to avoid divorce, is both discriminatory and absurd.

Critics argue that talaq-ul-sunnat, despite being better than talaq-e-biddat, still represents a flawed system. It’s troubling that the focus seems to be on just making a bad system slightly better, rather than overhauling it entirely. The law appears to serve a patriarchal society rather than ensuring justice and equality for women.

The heroic portrayal of the Shayara Bano judgment did not hold much significance in real life, as similar kinds of talaq practices still prevail in society. We are not addressing the problem but rather beating around the bush. Why are courts so hesitant to abolish such barbaric laws? For whom is the law made? For the patriarchal society where women do not exist?

There is no ground for divorce mentioned whatsoever, giving sole authority to the husband to manipulate the woman. How would it feel to live in such a marriage where every day you have to fear that even a saltless dish could be a reason for your divorce? How can a Muslim woman develop trust in such a legal system?

Historical cases, like Shamim Ara v. State of U.P. (2002), have demonstrated that such practices violate constitutional rights, but changes have been sluggish. The hope is that future legal challenges will address these issues more robustly, eventually leading to a fairer, more equitable legal system for Muslim women.

6. Talaq-ul-sunnat : unconstitutional, though not declared

Talaq Hasan, like its cousin triple talaq, allows a husband to unilaterally end a marriage without the wife’s consent. This arbitrary power undermines fundamental principles of equality, dignity, and individual rights, which are supposed to be cornerstones of the Indian Constitution. Criminalization of such blood sucking barbaric laws that places man as gods and women, well they are not talked about much.

Right to Equality (Article 14):

Article 14 guarantees equality before the law. Talaq Hasan, which allows unilateral divorce, creates a significant gender imbalance by giving husbands unchecked power to end marriages. This violates the principle of equality enshrined in Article 14.

Right to Freedom of Expression (Article 19):

Article 19 ensures freedom of speech and expression. However, using verbal declarations for divorce in a way that harms the wife’s dignity and security infringes on her fundamental rights. This misuse of verbal rights undermines the spirit of free expression.

Right to Non-Discrimination (Article 15):

Article 15 prohibits discrimination based on sex. Talaq Hasan, which exclusively allows men to pronounce divorce, entrenches gender inequality and subjects women to unfair treatment, violating this provision.

Right to Protect the Dignity of Women (Article 15(3)):

Article 15(3) empowers the state to make provisions for protecting women. By declaring practices like Talaq Hasan unconstitutional, the Supreme Court aims to uphold women’s dignity and rights, addressing discriminatory practices and promoting gender justice.

7. Case analysis and pleas to held talaq-ul- sunnat as unconstitutional:

Shamim Ara v. State of U.P. & Anr. (2002)

In the landmark case of Shamim Ara v. State of U.P. & Anr. (2002), the Supreme Court of India made a dramatic declaration. Shamim Ara sued her husband, Abrar Ahmad, in 1979, claiming he abandoned her and stopped providing for her. Ahmad, in turn, asserted that his 1987 triple talaq had legally freed him from any responsibility, sparking a debate over the timing and validity of his talaq.

The Court had to decide if Ahmad’s talaq took effect when he first declared it in front of witnesses (but conveniently not his wife), when he notified Shamim Ara in writing in 1990, or if it was invalid because neither action counted as a proper legal divorce. The Court decided that a talaq, when issued in writing and away from the wife’s presence, is so unjust that it is unenforceable. This ruling effectively turned what was once a private matter into a public spectacle, requiring court approval to validate an Islamic divorce.[3]

According to Dixie Morrison, Judge R.C. Lahoti criticized instant divorce as favoring husbands unfairly and diverging from Islamic teachings. The judge asserted that divorce should be for a legitimate cause and should involve attempts at reconciliation. Morrison countered that this interpretation was a bit of a stretch and lacked historical backing. By involving courts in divorce decisions, the ruling moved Muslim family law from the realm of personal privacy to state scrutiny, transforming marital issues into public affairs.[4]

Delhi High Court Plea

In another intriguing turn, two women presented their cases in the Delhi High Court concerning Talaaq-ul-Sunnat. One woman argued that the husband’s power to divorce at whim was a blatant misuse and sought to abolish Talaaq-ul-Sunnat. Meanwhile, another woman defended it, claiming that Talaaq-ul-Sunnat is an “essential religious practice” that allowed her to escape a bad marriage under Islamic law.

Arguments against the abolition included claims that women had the power to manage matrimonial matters and that Talaaq-ul-Sunnat aimed to balance power dynamics by disempowering men. Plus, Khula was highlighted as a mechanism for women to assert their rights.[5]

Talaaq-ul-Sunnat Being Unlawful Plea

On October 8, 2021, the Delhi High Court was dragged into yet another saga, being asked to review the legality of Talaaq-ul-Sunnat. The petition argued that the husband’s ability to unilaterally and without notice divorce his wife was barbaric and discriminatory, especially when a pregnant woman was left in the lurch.[6]

The court dismissed this plea as meritless, citing Section 3 of the Muslim Women (Protection of Rights and Marriage) Act, 2019, which invalidates any form of talaq—whether spoken, written, or electronic. Because, of course, the idea that a husband can decide a marriage is over on a whim, without any formalities or consideration, is entirely consistent with contemporary views on justice and fairness.[7]

Conclusion:

The Shah Bano case 2017 (triple talaq case) had a spuriously impactful judgment that held instant triple talaq as unconstitutional, and later it was criminalized by the Muslim Women (Protection of Rights on Divorce) Act, 1986. The true impact of the ban was not understood by the population, as the Supreme Court had banned instant triple talaq, not triple talaq. There is a need to criminalize triple talaq, not just the spurious unconstitutionality of instant triple talaq. Various judgments by different high courts on the validity of talaq-ul-sunnat must come to an end through a ruling by the apex court, as the issue stands pending before the Supreme Court.

Triple talaq (talaq-ul-sunnat), a malevolent imposter, deceives Muslim women into believing it is the most proper form of talaq. Muslim women are still weeping and living in fear of being divorced through triple talaq, which gives a Muslim husband absolute discretion to divorce his wife at any time without any reason or notice in advance.

Muslim women rights are slowly being eaten by various malpractices under the guise of religion.

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Author: Kasis Rana

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