{"id":4175,"date":"2024-08-11T05:54:43","date_gmt":"2024-08-11T05:54:43","guid":{"rendered":"https:\/\/lawging.com\/?p=4175"},"modified":"2025-04-03T04:16:29","modified_gmt":"2025-04-03T04:16:29","slug":"socio-legal-impact-of-the-ban-on-triple-talaaq","status":"publish","type":"post","link":"https:\/\/lawging.com\/index.php\/2024\/08\/11\/socio-legal-impact-of-the-ban-on-triple-talaaq\/","title":{"rendered":"SOCIO-LEGAL IMPACT OF THE BAN ON TRIPLE TALAAQ"},"content":{"rendered":"\t\t
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ABSTRACT <\/b><\/span><\/p>\n

The Sharia, or body of Islamic law, has a divorce procedure known as the triple talaq. By saying “Talaq<\/i>” thrice, a husband can formally divorce his wife. This is the most commonly practiced procedure for divorce despite complaints from Muslim women and campaigners around the world.<\/p>\n

In the case of Shayara Bano v. Union of India (2017), the Supreme Court invalidated the practice and in 2019, the Muslim Women (Protection of Rights on Marriage) Act was passed accordingly. However, neither the judgement nor the legislation clarified the status of the marriage if such pronouncement was done nevertheless. This led to our current issue.<\/p>\n

The women are currently living as half-divorcees. Although legally married, the women are virtually divorced and have no rights to any spousal support from their separated husbands. In the absence of a legal divorce, the women cannot get married again. After the verdict, nary one of the men received a visit from law enforcement officials ordering them to give their wives back, and no husbands were arrested. Additionally, since the Muslim Women (Protection of Rights on Marriage) Act, 2019 was passed after the instant talaq was announced, no charges could be made for triple talaq.<\/p>\n

As the women are unsure of their eligibility for a new marriage, confusion hangs in the air. The women had gone to court to demand compensation as quick talaq victims. However, the petitioners’ husbands refused to take them back into marriage when the court overturned the Talaaq-e-Biddat or quick triple talaq. In the interim, many of the men have remarried and had children. None of the women have chosen to exercise their inherent right to divorce, known as khula, even as they struggle through life.<\/p>\n

The researcher aims to explore the legal status of these half-divorcees and possible redressal options available to these women along with the impact it has on the socio-legal structure of the Muslim marriage in India.<\/p>\n


<\/p>\n

INTRODUCTION <\/b><\/span><\/p>\n

Talaaq-e-Biddat (instant divorce) and Talaaq-e-Mughallazah (irrevocable divorce) are the two divorce procedures that are no longer available to Muslims in India, especially those who adhere to Hanafi Sunni schools of law.<\/p>\n


<\/p>\n

What is up with Triple Talaq? <\/i><\/p>\n

In the Islamic tradition, a Muslim man could formally divorce his wife by saying the word \u201ctalaq<\/i>\u201d three times. The announcement may be made orally, in writing, electronically\u2014via phone, SMS, email, or social media\u2014in recent years, or all three. The husband did not have to give a reason for the divorce, and she did not need to be present when it was announced.<\/p>\n

The divorce became final after a time of iddat<\/i>, during which it was determined whether the wife was pregnant. Prior to each proclamation of talaq, in the prescribed practise, a waiting period was necessary, during which reconciliation was sought. However, it had become customary to make all three declarations at once. Although the practise was despised, it was not against the law. If a divorced woman wanted to remarry her ex-husband, she had to wed another man first, a procedure known as nikah halala<\/i>. <\/p>\n

The Quran makes no mention of triple talaq. Muslim legal scholars also mainly disapprove of it. Although it is formally permitted by Sunni Islamic law, many Islamic countries, like Pakistan and Bangladesh, have outlawed the practise. According to Islamic law, the husband has the legal authority to divorce or separate from his wife provided there are sufficient grounds.<\/p>\n

The Supreme Court was informed by the non-governmental All India Muslim Personal Law Board (AIMPLB) that women could also pronounce triple talaq and may carry out nikahnamas<\/i> and specified criteria under which the husbands could not pronounce triple talaq. The AIMPLB claims that because Islam gives men a greater degree of decision-making authority but also gives wives the right to divorce.<\/p>\n

In India, Muslim spouses are not compelled to register their marriage with civil authorities, in contrast to the norms implemented by the majority of Muslim-dominated nations. Unless the couple decides to register their marriage under the Special Marriage Act of 1954, Muslim marriages in India are regarded as a private matter. Due to these circumstances, the limitations that the other nations\u2019 governments have imposed on the husband\u2019s unilateral power to divorce and the prohibition of triple talaq could not implemented in India.<\/p>\n


<\/p>\n

SUPPORT AND CRITICISM <\/b><\/span><\/p>\n

The topic of Triple Talaq became highly controversial with many people coming out to vehemently support and oppose it.<\/p>\n


<\/p>\n

Opposition<\/i><\/b><\/span><\/p>\n

Muslim women opposed the practise. Some of them even brought public interest litigation against it to the Supreme Court, calling it \u201cregressive.\u201d Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, was requested to be repealed by the petitioners because they believed it violated Article 14 of the Constitution (Equality before law).<\/p>\n

Muslim Rastriya Manch\u2019s petition to halt immediate triple talaq garnered the signatures of over 1 million Indian Muslims, the bulk of which were women, in March 2017. The petitioners who are opposed to quick triple talaq have provided proof that the practise is merely novel and has little to do with Quranic teachings.<\/p>\n

This is supported by historical data, legal precedent, and the interpretation of the Quranic text by numerous Islamic experts.<\/p>\n


<\/p>\n

Support<\/i><\/b><\/span><\/p>\n

The Board for All India Muslim Personal Law endorsed triple talaq. It holds that the State does not have the authority to involve itself with questions of religion. Kapil Sibal, the attorney for the AIMPLB, invoked Article 371A to claim that even the Constitution intends to protect community practises, traditions, and customs.<\/p>\n

The practise is also supported by the All India Muslim Personal Law Board (AIMPLB). They asserted that Muslims have a lower divorce rate than other religious groups, refuting the claim that Muslims have the highest number of divorces in the nation as a result of the practise of triple talaq. The report was produced by the Muslim Mahila Research Kendra in coordination with the Shariah Committee for Women. Additionally, it stated that it obtained documents supporting triple talaq and shariat from 35 million Muslim women across the nation.<\/p>\n


<\/p>\n

BAN IN INDIA <\/b><\/span><\/p>\n

There are two steps involved in India\u2019s ban on triple talaq. Firstly, the Supreme Court of India ruled it unlawful in Shayara Bano v. Union of India and ors, 2017 and the Muslim Women (Protection of Rights on Marraige) Act, 2019, which was passed by the Union Government, in accordance to the SC judgement.<\/p>\n


<\/p>\n

Judgement<\/i><\/b><\/span><\/p>\n

The bench that heard the contentious triple talaq case in Shayara Bano v. Union of India & Others in 2017 was composed of members of several faiths. Chief Justice J. S. Khehar, a Sikh, headed the bench which comprised of Justices Kurian Joseph, a Christian; R. F. Nariman, a Parsi; U. U. Lalit, a Hindu and S. Abdul Nazeer, a Muslim.<\/p>\n

The Supreme Court considered whether Article 25(1) of the constitution, which ensures that everyone has the fundamental right to \u201cprofess, practise, and promote religion,\u201d protects triple talaq. The Court sought to determine whether triple talaq is a fundamental aspect of Islamic doctrine and practise.<\/p>\n

Although two justices affirmed the legality of instantaneous triple talaq (talaq-e-biddat), the remaining three judges ruled that the practise was illegal, thus outlawing it by a 3-2 margin. The court ordered the central government to pass legislation regulating marriage and divorce in the Muslim community within six months. The court ruled that there will be an injunction prohibiting husbands from ordering instant triple talaq on their wives until the government develops a law governing the practise.<\/p>\n


<\/p>\n

Legislation<\/i><\/b><\/span><\/p>\n

The Lok Sabha voted to approve the 2017 law on December 27, 2018. The opposition, though, pushed for its referral to the Standing Committee in the Rajya Sabha. An ordinance making the measure effective expired on January 22, 2019, as it was not passed in the parliamentary session. On January 10, 2019, the government issued a new version of the same bill. Even if the Rajya Sabha blocked this bill once more after it cleared the Lok Sabha. When the legislative session ended sine die in April 2019, the bill again became ineffective.<\/p>\n

After the 2019 Indian general elections, the Muslim Women (Protection of Rights on Marriage) Ordinance, 2019 was set to expire on August 29, 2019, six weeks after the start of the parliamentary session. On June 21, 2019, the government filed a fresh bill in the Lok Sabha. Both the Lok Sabha and the Rajya Sabha approved it on July 25, and July 30, respectively. On July 31, 2019, President Ram Nath Kovind gave his approval to the legislation. The following day, it was announced in the gazette. The law goes into force retroactively on September 19, 2018.<\/p>\n

The Muslim Women (Protection of Rights on Marriage) Bill, 2017, was approved by the Lok Sabha on December 28, 2017. In accordance with the proposed legislation, instant triple talaq (talaq-e-biddah) in any form\u2014spoken, written, or transmitted electronically through email, SMS, or WhatsApp\u2014would be void and illegal, subjecting the husband to a maximum sentence of three years in prison.<\/p>\n

The Muslim Women (Protection of Rights on Marriage) Act, which replaced all previous ordinances, was passed by the Government of India on July 31, 2019, following the introduction of numerous ordinances and several bills.<\/p>\n


<\/p>\n

THE CASE OF HALF-DIVORCEES<\/b><\/span><\/p>\n

Activists claim those three years after the law making instant talaq unlawful, men are choosing other unilateral forms of divorce or simply abandoning their wives. As a result, these women lose their ability to support themselves financially and socially, along with their entitlement to maintenance and joint custody of their children in the event of a divorce. Another strategy is to force their wives to give them khula in order to stay out of legal problems.<\/p>\n

The spouses use a variety of techniques, including \u201ctalaq-e-hasan,\u201d which calls for a 3-month separation. Nazreen Nisha, who is located in Mumbai, launched a Public Interest Litigation to oppose all types of unilateral divorce. The case for women has also been weakened by the absence of pressure from community elders and religious leaders.<\/p>\n

The Shaheen Women\u2019s Resource and Welfare Association has conducted a survey in Hyderabad that provides insight into the scope of the desertion issue. Of the 579 families questioned in July\u2013August 2019, four incidents of women who had been dumped by their spouses were reported. In 2022, there were 236 instances for every 800 households examined. According to them, desertion incidents have substantially grown. Desertations entail that the woman stays married and forfeits the support and freedom she would have otherwise received. The majority of women prefer to stay married. It has been observed that the husband forces the lady to begin the khula procedure of divorce in such circumstances.<\/p>\n

In a case earlier this month, the SC noted that while Muslim men and women have access to unilateral forms of divorce, talaq-e-hasan is \u201cnot so improper.\u201d However, women contend that while males have been exploiting personal laws to their advantage, women rarely file for divorce.<\/p>\n


<\/p>\n

THE WAY FORWARD <\/b><\/span><\/p>\n

One very straight forward way to go about is for the women to opt for khula and seek regular maintenance from her former husband until she remarries. This is the simplest means of resolution and the men won\u2019t and can\u2019t oppose. The law protects a Muslim woman\u2019s right to divorce and seek maintenance. Why should women live with the men who don\u2019t want them? <\/p>\n

Another thing that the law enforcement agencies and NGOs could do is visit their houses and convince them for counselling and reconciliation. This is a remedy against the old cases of triple talaaq.<\/p>\n

Bharatiya Muslim Mahila Andolan founder Zakia Soman says that piecemeal change cannot make a difference in empowering Muslim women. \u201cWe need a codified Muslim family law that will include laws related to marriage, divorce, succession, guardianship and inheritance just as has been done for Hindu women. Muslim women should also get constitutional rights,\u201d she says. Her suggestion maybe a harder one to implement but it is a great suggestion.<\/p>\n

Lastly, the most effective means to deals with such outdated laws would be to get rid of personal laws altogether. The implementation of the Uniform Civil Code would ensure that all the forms of instant divorce are done away with.<\/p>\n


<\/p>\n

BIBLIOGRAPHY<\/b><\/span><\/p>\n

Newspaper Articles <\/span><\/p>\n

    \n
  1.  \u201cRavi Shankar Prasad: \u2018100 cases of instant triple talaq in the country since the SC judgement\u2019\u201d<\/span><\/a> The Times of India. 28 December 2017. <\/i><\/span><\/li>\n
  2. Ziya Us Salam, <\/span>\u2018<\/span>Five years after Supreme Court\u2019s triple talaq verdict, petitioners living life as \u2018half-divorcees\u2019.  <\/span><\/span>The Hindu, 13 August 2022. <\/span><\/i><\/li>\n<\/ol>\n


    <\/span><\/p>\n

    Legislations <\/span><\/p>\n

      \n
    1. The Muslim Women (Protection of Rights on Marriage) Bill, 2017<\/i><\/span><\/li>\n
    2. The Muslim Women (Protection of Rights on Marriage) Bill, 2018<\/i><\/span><\/li>\n
    3. The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019<\/i><\/span><\/li>\n
    4. The Muslim Women (Protection of Rights on Marriage) Act, 2019<\/i><\/span><\/li>\n<\/ol>\n


      <\/span><\/p>\n

      Judgments <\/span><\/p>\n

        \n
      1. Shayara Bano v. Union of India (2017) 9 SCC 1<\/i><\/li>\n<\/ol>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t
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        -By Shanmitha Bhogadi (11\/08\/2024)<\/em><\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t

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        <\/div>\n\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t
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        \n\t\t\t\n\t\t\t\t\t\t\t\n\t\t\t\tLawGING\t\t\t\t<\/span>\n\t\t\t\t\t\t<\/span>\n\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t<\/div>\n\t\t","protected":false},"excerpt":{"rendered":"

        ABSTRACT The Sharia, or body of Islamic law, has a divorce procedure known as the triple talaq. By saying “Talaq” thrice, a husband can formally divorce his wife. This is the most commonly practiced procedure for divorce despite complaints from Muslim women and campaigners around the world. In the case of Shayara Bano v. Union of India (2017), the Supreme Court invalidated the practice and in 2019, the Muslim Women (Protection of Rights on Marriage) Act was passed accordingly. However, neither the judgement nor the legislation clarified the status of the marriage if such pronouncement was done nevertheless. This led to our current issue. The women are currently living as half-divorcees. Although legally married, the women are virtually divorced and have no rights to any spousal support from their separated husbands. In the absence of a legal divorce, the women cannot get married again. After the verdict, nary one of the men received a visit from law enforcement officials ordering them to give their wives back, and no husbands were arrested. Additionally, since the Muslim Women (Protection of Rights on Marriage) Act, 2019 was passed after the instant talaq was announced, no charges could be made for triple talaq. As the women are unsure of their eligibility for a new marriage, confusion hangs in the air. The women had gone to court to demand compensation as quick talaq victims. However, the petitioners’ husbands refused to take them back into marriage when the court overturned the Talaaq-e-Biddat or quick triple talaq. In the interim, many of the men have remarried and had children. None of the women have chosen to exercise their inherent right to divorce, known as khula, even as they struggle through life. The researcher aims to explore the legal status of these half-divorcees and possible redressal options available to these women along with the impact it has on the socio-legal structure of the Muslim marriage in India. INTRODUCTION Talaaq-e-Biddat (instant divorce) and Talaaq-e-Mughallazah (irrevocable divorce) are the two divorce procedures that are no longer available to Muslims in India, especially those who adhere to Hanafi Sunni schools of law. What is up with Triple Talaq? In the Islamic tradition, a Muslim man could formally divorce his wife by saying the word \u201ctalaq\u201d three times. The announcement may be made orally, in writing, electronically\u2014via phone, SMS, email, or social media\u2014in recent years, or all three. The husband did not have to give a reason for the divorce, and she did not need to be present when it was announced. The divorce became final after a time of iddat, during which it was determined whether the wife was pregnant. Prior to each proclamation of talaq, in the prescribed practise, a waiting period was necessary, during which reconciliation was sought. However, it had become customary to make all three declarations at once. Although the practise was despised, it was not against the law. If a divorced woman wanted to remarry her ex-husband, she had to wed another man first, a procedure known as nikah halala.  The Quran makes no mention of triple talaq. Muslim legal scholars also mainly disapprove of it. Although it is formally permitted by Sunni Islamic law, many Islamic countries, like Pakistan and Bangladesh, have outlawed the practise. According to Islamic law, the husband has the legal authority to divorce or separate from his wife provided there are sufficient grounds. The Supreme Court was informed by the non-governmental All India Muslim Personal Law Board (AIMPLB) that women could also pronounce triple talaq and may carry out nikahnamas and specified criteria under which the husbands could not pronounce triple talaq. The AIMPLB claims that because Islam gives men a greater degree of decision-making authority but also gives wives the right to divorce. In India, Muslim spouses are not compelled to register their marriage with civil authorities, in contrast to the norms implemented by the majority of Muslim-dominated nations. Unless the couple decides to register their marriage under the Special Marriage Act of 1954, Muslim marriages in India are regarded as a private matter. Due to these circumstances, the limitations that the other nations\u2019 governments have imposed on the husband\u2019s unilateral power to divorce and the prohibition of triple talaq could not implemented in India. SUPPORT AND CRITICISM The topic of Triple Talaq became highly controversial with many people coming out to vehemently support and oppose it. Opposition Muslim women opposed the practise. Some of them even brought public interest litigation against it to the Supreme Court, calling it \u201cregressive.\u201d Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, was requested to be repealed by the petitioners because they believed it violated Article 14 of the Constitution (Equality before law). Muslim Rastriya Manch\u2019s petition to halt immediate triple talaq garnered the signatures of over 1 million Indian Muslims, the bulk of which were women, in March 2017. The petitioners who are opposed to quick triple talaq have provided proof that the practise is merely novel and has little to do with Quranic teachings. This is supported by historical data, legal precedent, and the interpretation of the Quranic text by numerous Islamic experts. Support The Board for All India Muslim Personal Law endorsed triple talaq. It holds that the State does not have the authority to involve itself with questions of religion. Kapil Sibal, the attorney for the AIMPLB, invoked Article 371A to claim that even the Constitution intends to protect community practises, traditions, and customs. The practise is also supported by the All India Muslim Personal Law Board (AIMPLB). They asserted that Muslims have a lower divorce rate than other religious groups, refuting the claim that Muslims have the highest number of divorces in the nation as a result of the practise of triple talaq. The report was produced by the Muslim Mahila Research Kendra in coordination with the Shariah Committee for Women. Additionally, it stated that it obtained documents supporting triple talaq and shariat from 35 million Muslim women across the nation. BAN IN INDIA There are<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-4175","post","type-post","status-publish","format-standard","hentry","category-blog"],"_links":{"self":[{"href":"https:\/\/lawging.com\/index.php\/wp-json\/wp\/v2\/posts\/4175","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lawging.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lawging.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lawging.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lawging.com\/index.php\/wp-json\/wp\/v2\/comments?post=4175"}],"version-history":[{"count":22,"href":"https:\/\/lawging.com\/index.php\/wp-json\/wp\/v2\/posts\/4175\/revisions"}],"predecessor-version":[{"id":4434,"href":"https:\/\/lawging.com\/index.php\/wp-json\/wp\/v2\/posts\/4175\/revisions\/4434"}],"wp:attachment":[{"href":"https:\/\/lawging.com\/index.php\/wp-json\/wp\/v2\/media?parent=4175"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lawging.com\/index.php\/wp-json\/wp\/v2\/categories?post=4175"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lawging.com\/index.php\/wp-json\/wp\/v2\/tags?post=4175"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}