TRIPLE TALAQ- UNCONSTITUTIONAL

Triple Talaq:- Unconstitutional

Talak-ul-Biddat which is commonly known as “Triple Talaq” is one of the form of customary practice of giving divorce to Muslim women by their husband under the Muslim law in which divorce can be given by way of pronouncement/orally in one sentence “I divorce you thrice” or “I divorce you, I divorce you, I divorce you,” in a single tuhr. As per their customs it is considered to be the valid form of giving divorce and to dissolve the marriage. The Prophet never approved it. It is considered to be the most sinful or irregular form of giving divorce as it becomes effective and irrevocable as soon as the words are pronounced and there is no possibility of reconciliation between the parties. The remarriage between the parties is only possible only if certain course is adopted by the parties. The Shias do not recognize this form of giving divorce but however contrary to it Sunnis recognize it. This kind of practice is prevailing in India since ancient times. In Muslims families the rules of divorce are generally govern by the Sharia Law or by the holly Quran. In the era of modernization, personal laws are also codified as per the need and demand by the society, but as contrary to other forms of personal laws, it generally remained within the sphere and control within the traditional jurists. However in this historical moment state with its all might stepped in and took this historical step to deliver justice and equality to the Muslim women.

The Hon’ble Supreme Court of India on August 22, 2017 In the landmark judgment of “Shayara Bano vs. Union of India & Ors”, Writ Petition (C) No. 118 of 2016 the Hon’ble Supreme Court has held triple talaq or “talaq-ul-biddat” to be unconstitutional and in violation of Articles 14 and 13(1) of the Constitution of India. The court found this practice to be arbitrary as it permitted the termination of the marital relationship without any effort of reconciliation. With this judgment, the Supreme Court has rendered instant triple talaq by a Muslim man null and void. Therefore, despite such pronouncement by a husband, the wife will continue to enjoy the status of a wife and will be entitled to all the rights and claims of a wife under the Muslim Personal Law and declared the practice of Triple Talaq as unconstitutional by majority in 3:2 by Hon’ble Justice Kurian Joseph, Hon’ble Justice Uday Umesh Lalit and Hon’ble Justice Rohinton Fali Nariman delivered the majority Judgment. Hon’ble Chief Justice Khehar and Hon’ble Justice Abdul Nazeer dissented.

In view of the above said decision made by the multi-religion Constitutional Bench of the Hon’ble Supreme Court and expressing its concern about the current situation, Court exercise its discretion to issue appropriate directions under Article 142 of the Indian Constitution and directed, the Union of India to consider appropriate legislation to look over the issue and to come up with the appropriate law in order to provide justice to the Muslim women against the arbitrary practice of pronouncing talaq by their husband and for the matters connected with it.

As a result of it in December, 2017 during the winter session of Indian parliament, Government in Lok Sabha introduced and cleared the Muslim Women (Protection of Rights on Marriage) Bill, 2017, to make the practice of triple talaq a criminal offence. As per the proposed law, the talaq given by Muslim husband to his wife by way of pronouncement shall be void and illegal. It furthers provides the provision of punishment which may be extended to 3 years and shall also liable to fine. The aggrieved married Muslim woman upon whom Talaq is pronounced shall be entitled to receive from her husband subsistence allowance for her as well as dependent children. However, the offence under it is the cognizable. On 19th September, 2018 the union government approved this bill in the form of Ordinance which is promulgated by the President of India on 20th September 2018 and on 12th January 2019 it was again re-promulgated by the President of India.

Dhruv Khanna

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