Introduction

Tripple talaq means instant divorce and talaq-e-mughallazah (irrevocable divorce). It was a form of Islamic divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence. It allowed any Muslim man to legally divorce his wife by uttering the word talaq (the Arabic word for “divorce”) three times in oral, written or, more recently, electronic form.

Triple Talaq, also known as Muslim Women (Protection of Rights on Marriage) Bill, 2019, was passed by the Indian Parliament as a law on July 30, 2019, to make instant Triple Talaq a criminal offence. 

The Rajya Sabha passed the Bill, with 99 votes in its favour and 84 against it. The Triple Talaq law makes the instant triple talaq a criminal offence and provides for a jail term of three years for a Muslim man who commits the crime.

The law also makes Triple Talaq a cognisable and non-bailable offence. Introduced in the Lok Sabha by Minister of Law and Justice Ravi Shankar Prasad on June 21, 2019, the Bill replaced an Ordinance promulgated on February 21, 2019.

As the Bill was pending for consideration in the Rajya Sabha and the practice of Triple Talaq divorce system was continuing, there was an urgent need to take immediate action to prevent such a practice by making strict provisions in law.

Triple Talaq void and illegal

According to Clause 3 in Chapter 2 of the Bill, “any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”.

Mohd. Ahmed Khan v. Shah Bano Begum

• The verdict was given by C.J, Y.C Chandrachud, and the appeal of Mohd. Ahmed Khan was dismissed.
• Supreme Court said Section of the code applies to all citizens independent of their religion and consequently Section 125(3) of Code of Criminal Procedure is pertinent to Muslims as well, without any sort of discrimination. The court further stated that Section 125 overrides the personal law if there is any conflict between the two It makes clear that there’s no strife between the provisions of Section 125 and those of the Muslim Personal Law on the address of the Muslim husband’s obligation to provide maintenance for a divorced wife who is incapable to maintain herself.
• Supreme Court in this case duly held that since the obligation of Muslim husband towards her divorced wife is restricted to the degree of ” Iddat” period, indeed though this circumstance does not contemplate the rule of law that’s said in Section 125 of CrPc., 1973 and subsequently the obligation of the husband to pay maintenance to the wife extends beyond the iddat period in the event that the wife does not have sufficient means to maintain herself. It was further stated by the court that this rule according to Muslim Law was against humanity or was wrong because here a divorced wife was not in a condition to maintain herself.
• The payment of Mehar by the husband on divorce is not sufficient to exempt him from the duty to pay maintenance to the wife.
• After a long court procedure, the Supreme Court finally concluded that the husbands’ legal liability will come to an end if a divorced wife is competent to maintain herself. But this situation will be switched in the case when the wife isn’t able in a condition to maintain herself after the Iddat period, she will be entitled to get maintenance or alimony under Section 125 of CrPC.

Punishment for pronouncing Triple Talaq

The Clause 3 also states that, “whoever pronounces Triple Talaq upon his wife shall be punished with imprisonment for a term which may extend to three years and fine”. 

According to Clause 7 (c) in Chapter 3, “No person accused of an offence punishable under Triple Talaq law shall be released on bail after the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq was pronounced, is convinced that there are reasonable grounds for granting bail to the accused”.

Conclusion    

Having laid out the differences in the three opinions above, we find very few points on which a clear majority position emerges. Even when the judges agree on the outcome, they do so for different reasons. Justices Nariman and Lalit find ITT to be un-Islamic and unconstitutional. Justice Joseph does not go into the question of constitutionality but finds IIT to be un-Islamic and hence, invalid. Thus, by no means can it be concluded that in Shayara Bano case, the Court has declared ITT to be unconstitutional.

On the issue of the constitutional status of personal law, we find an utterly confusing judgment. Two judges hold at one point that uncodified personal law is beyond the scope of the Fundamental Rights, but following rather dubious logic, hold at a later point that the entire domain of personal law is protected as a matter of religious freedom, and they affirm Narasu. Two other judges hold personal law to be subject to the Fundamental Rights, but they do not explicitly set aside Narasu. One judge rejects the proposition that uncodified Muslim personal law can be tested against Fundamental Rights, rejects that it is protected by religious freedom, acknowledges the ghost of Narasu, but avoids the issue altogether. Arguably, Justice Joseph’s approach to the problem shows that it could have been tackled even without a constitutional challenge. But since the petitioners had raised the issue of constitutionality, the judges could have addressed the issue more thoughtfully.

In the final analysis, the judgment in Shayara Bano does not change the legal position of ITT that existed before, but creates confusion on the constitutional status of personal law and misses a great opportunity to elaborate on the constitutional vision of justice for women from minority religious groups.

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