Legal Articles


Instant triple talaq (talaq-e-biddat) is viewed as sinful by a large section of Muslim Community. It is taken as improper and considered as a tool by husband to treat women as a commodity. The practice is used many a times as a threat and mean to keep women subjugated and subordinated to man. Women is in no position to retain her individual identity.

Gradually and with the spread of education including amongst a section though not very huge in recent years many voices including voices of Muslim women has been raised against undue practices especially of instant triple talaq . It has been pointed out by various studies that in the recent times instant triple talaq were given including in some cases even through the telephone, Sms or e-mail services. It is argued significantly by many that it is not only violation of spirit but also the letter of the law contained in Shariat Act, 1937 or even the Quranic tenets.

Significantly Muslim women in Shayara Bano v. Union of India ( 2017) 9 SCC 1) raised the issue before the apex court that practice of triple talaq may be declared ill-legal and unconstitutional. What is more important that the PIL that was filed unlike in other instances raised the issue of unconstitutionality of this practice by invoking fundamental rights especially the right to equality. More significantly the court entertained the petition and the issue it framed was in terms of violation of fundamental rights of women involved. In a majority of 3:2 judgement dated 22.8.17 the court thus set aside the practice of instant triple talaq as a ‘manifestly arbitrary’ practice. One of the judges who was party to the decision in determining the unconstitutionality disagreed with the view that because of longitivity of the period of the practice of instant triple talaq cannot make it a part of religious belief and thus any argument that is protected under Article 25 of the Constitution was also dismissed. The judgement was hailed all around including large section of Muslim women. The then CJI in this case barred the practice of instant triple talaq for six months and suggested that the legislature in the mean-time bring a law on the subject. Outlawed in Muslim majority nations, instant triple talaq has no legal force in India.

Despite banning triple talaq by the verdict of 2017 within four months nearly 100 cases were reported. The ban has been observed in breach as there is no harsh penalty on violators. Thus, the Muslim Women (Protection of Rights on Marriage) Bill, 2017 was proposed to give effect to the judicial invalidation of instant triple talaq by criminalizing it ensuring further legal protection to Muslim women. The Bill was a landmark step ensuring gender equality and was introduced in Rajya Sabha on 28.12.17.The salient features of the Bill : that instant triple talaq pronounced by a Muslim is void; Clause 4 of the Bill states that any pronouncement of Triple Talaq shall be punished for a term which may extend up to 3 years and a fine; Clause 7 says that the offence is cognizable and non-bailable; Clauses 5 and 6 provide to a Muslim woman upon whom talaq is pronounced a Subsistence Allowance for her and her dependent children from her husband and also custody of her minor children.

The proposed Bill was passed in the Lok Sabha on the same day it was introduced thus raising serious questions about the manner of Parliamentary deliberations, but got stuck in Rajya Sabha demanding that the Bill be referred to a parliamentary committee for review. The Bill has been opposed by various women groups and All India Muslim Personal Law Board, pointing out that criminalising instant triple talaq may defeat the purpose of discouraging the practice and make it counter- productive making a woman reluctant to report pronouncement of triple talaq. One of the main objection raised is that marital cases are of civil nature but Bill seeks to criminalise it. The other criticism is that imprisonment of the husband would deprive the family of the income then who will pay the maintenance to wife and her children. Again, the Bill providing for subsistence allowance is not clear as to whether an interim relief with allowance can be provided only after the conviction of the husband. Further whether this allowance is in addition to one already provided under sections 3 and 4 Muslim Women (Protection of Rights on Divorce) Act, 1986

Supporters of the Bill find the criticism of activists as farce and misplaced and invites attention saying that the penal provisions in the proposed Bill have parallels which are in sync with the past ones on social evils. For example despite of the Dowry Prohibition Act, 1961 instances of dowry deaths continued to mount, and then section 498A was enacted, creating a new offence under the Indian Penal which punishes the husband and his relative with imprisonment for a term which may extend to three years and also fine on a complaint either by wife or relative or any public servant. So is the case with child marriage when special Act on Prohibition of child Marriage Act,2006 was enacted and adultery laws which are linked to marriage but invited criminal action under Indian Penal Code. Similarly, Article 17 of the Constitution declaring untouchability as unconstitutional and designating practices supporting untouchability an offence punishable in accordance with law. But the practice continued forcing parliament to enact a special law namely the Untouchability (Offences)Act,1955 renamed as Protection of Civil Rights Act, 1976 punishing those practicing untouchability with six months jail.

As far maintenance under the proposed Bill is concerned the supporters point out to provision available under the Bill where Magistrate has the discretion to give the allowance and to various remedies already available to a Muslim women like section 4 of the Muslim Women (Protection of Rights on Divorce) Act,1986 to meet out the criticism that who shall pay the maintenance to the women if husband is put in jail for 3 years and remains unemployed .The said provision makes the relatives of the wife as would be entitled to her property on her death or her parents and if they fail the State Waqf Board to pay her and her dependent children the requisite maintenance . It is also argued that in case a Muslim woman does not wish to take recourse to the provisions of this Act she has the option to claim maintenance under section 125 of the Cr.PC. Another, available option is under section 20 of the Protection of Women from Domestic Violence Act, 2005 where the Magistrate may direct the respondent to pay monetary relief in terms of maintenance which may be lumpsum or monthly, as the case may be.

The current Bill presents a very paradoxical debate, while the opponents of the Bill consider that if enacted into law it is going to be more unjust and would encourage greater violence in the hands of the husband. One the other side the supporters of the Bill give arguments of the fear that would discourage the Muslim man to give triple talaq. It is significant that the opponents of the Bill also include the All Muslim Personal Law Board whose main contention is lack of consensus and need of wider consultation before enacting the present Bill. While there are significant number of Muslim women including not only young and educated but also those living in far flung areas who welcome the Bill and consider it to be a great step in the direction of gender justice.

To conclude, we would only say that the present deadlock in the Parliament instead of taking a political turn should help the country moving forward in enacting a progressive law ensuring justice to Muslim women remaining under the fear of talaq-e-biddat. It would help the project better if wider consultation is held and some of the anomalies like the need to modify the Bill by making the new offence from cognizable to non-cognizable.

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