A CRITICAL ANALYSIS

OF

TRIPLE TALAQ FROM SHAYARA BANO JUDGEMENT

TO ITS CRIMINALIZATION

SUBMITTED BY,
S.M. MARJINA SULTANA
L.L.M., ALIGARH MUSLIM UNIVERSITY
 TRIPLE TALAQ FROM SHAYARA BANO JUDGEMENT TO ITS
CRIMINALIZATION: A CRITICAL ANALYSIS

1. INTRODUCTION

The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant
divorce does not accord with Islamic injunctions. The statement that the wife can buy a
divorce only with the consent of or as delegated by the husband is also not wholly correct.
Indeed, a deeper study of the subject discloses a surprisingly rational, realistic and modern
law of divorce1 (Justice V.R. Krishna Iyer)

Talaq is a generic name for all kinds of divorce, but is particularly applied to the repudiation of
marriage by the husband. It is classified into three forms, namely; Talaq-e-Ahsan, Talaq-e-Hasan and
Talaq-e-Biddah. The first two are an approved mode of talaq while third one, i.e., talaq-e-biddah, also
popularly known as triple talaq is a disapproved but recognized mode of divorce by the Hanafi sect of
Islam. Triple talaq is controversial because of its instant and irrevocable effect which is not in
accordance with the guidance of the Qur’an and traditions of the Prophet. On 22nd August, 2017, the
5 Judge’s bench of the Supreme Court of India in the case of Shayara Bano versus Union of India2
set aside triple talaq by a majority of 3:2 to protect the rights of married Muslim women. After that,
the Modi Government enacted The Muslim Women (Protection of Rights on Marriage) Act, 2019,
to penalize triple talaq as a cognizable and non-bailable offence and imposes a punishment on the
Muslim man who pronounce triple talaq upon his wife with imprisonment of three years and also fine.

2. INSTANT TRIPLE TALAQ / TALAQ-UL-BIDDAH (DISAPPROVED MODE OF

TALAQ)

It is a sinful and irregular mode of talaq introduced by Omayyads in order to escape the restrictions of
law. It is a divorce where the husband repudiates wife by three divorces in one sentence, e.g., “I
divorce you thrice” or where he repeats the sentence, separately, thrice, e.g., “I divorce you, I divorce
you, I divorce You” during a single tuhr3. This talaq is known as talaq-ul-Bain as it becomes
irrevocable immediately when it is pronounced irrespective of iddah. It may also be in writing if he
shows his intention of irrevocable divorce.

1
A. Yousuf Rawther vs Sowramma, AIR 1971 Ker 261
2
(2017) 9 SCC 1
3
A period when a woman is free from her menstrual courses
 3. JUDGEMENT OF SHAYARA BANO V. UNION OF INDIA

On 22nd August, 2017, the 5 Judge’s bench of the Supreme Court of India in the landmark case of
Shayara Bano v. Union of India4 set aside the practice of an instantaneous triple talaq by a majority
of 3:2 but without a majority of their intellectual reasoning to arrive at the conclusion (2:1). The three
judges who set aside instant triple had separate reasoning for their conclusion. Judgement of Justices
Rohington Nariman and Justice Lalit held that triple talaq was unconstitutional on the grounds of
“arbitrariness” under Art.14 of the constitution and Judgement of Justice Kurien Joseph held that
Instant Triple Talaq was “not an integral part of Islam” under Art.25 of the constitution. While the
Minority Judgement of the then Chief Justice, J.S. Khehar (for himself and Justice Abdul Nazeer) held
that triple talaq, which is a part of personal law is protected by Art.25 of the constitution. The case
had three separate judgements with different reasoning splitting into 2:1:2. So there’s no clear
majority for consequential legal proposition in this case.

4. THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019

4.1. Loopholes In The Act

Following Shayara Bano, saying triple talaq can no longer break the marriage. The decision of
Supreme Court which declared triple talaq as void is a law as per Art 141 of the Constitution. So, a
legislation to reiteratively declare a settled position of law serves no purpose. Since pronouncement of
triple talaq is void and inconsequential, it can’t be construed as a criminal offence. It does not qualify
any of the tests of crime. Also, marriage in Islam is purely a civil contract.5 Thus triple talaq may be
considered nothing more than a civil contempt of Supreme Court. Muslim divorce is completed, if not
revoked expressly or impliedly after the 3 months of the pronouncement of talaq when iddah (waiting
period) expires. So penalizing the husband for 3 years beyond iddah period (3 months) will
automatically complete the divorce and end the marriage as it leaves no room for reconciliation
between the spouses. The Act revives the problems of triple talaq which was settled by the Supreme
Court by setting it aside in Shayara Bano for not providing a scope for mediation and reconciliation
between the spouses due to its immediate and irrevocable effect. Thus the Act will not save the
marriage rather, it will break the marriage.

Apparently, three years imprisonment for husband is excessive and disproportionate. The government
had ignored the fundamental principle of proportionality. It is evident from the kinds of crimes which
attract 3 years imprisonment under Indian Penal Code like, Sedition (S.124), Rioting and armed with

4
(2017) 9 SCC 1
5
Justice Mahmood observed in Abdul Kadir v. Salima, (1886) 8 All. 149.
deadly weapon (S.148), Promoting enmity between different groups (153.A), Sexual Harassment
(S.354.A). These crimes are far graver than the instantaneous talaq and imposition of same amount of
punishment for uttering three words instantly which doesn’t even have a legal effect is gross and
arbitrary, particularly when the same pronouncement can be lawfully made within a period of three
months without attracting any penal consequences whatsoever. The extreme disproportionality of the
punishment is further evident from the fact that many other crimes which are more serious than triple
talaq gets even lesser punishment under IPC like causing death by rash or negligent act (S.304A),
Rioting (S.147) are punishable by 2 years jail term or fine or both. And offence like Negligent act
likely to spread infection of disease dangerous to life (S.269 IPC), Causing hurt by act endangering
life or personal safety of others (S.337 IPC) are punishable by 6 months in jail or fine or both.

Such an excessive punishment of husband particularly due to the complaint of the wife or her relatives
merely for saying triple talaq will create enmity and irreconcilable differences between the husband
and wife that even if the husband is compelled to live with the wife after the expiration of the iddah,
there will be no cordiality in marriages which will lead to the abandonment of wife because of the fact
that desertion has not been criminalized yet. Further, putting the husband behind bars for 3 years will
adversely affect him in terms of losing jobs, opportunities, prospects of growth, his image and status
in the society, ruining his life completely which will be the another cause to increase the hostilities
between the husband and wife. How could one expect the husband to revoke his talaq and the wife to
go back to him after getting into such a hostile situation? Such an irrational & arbitrary law will not
empower the Muslim women as the object of the Act claim but it will trap them in the fog of
irreversible damage.

Moreover, to constitute a criminal offence, both the actus reus and mens rea is necessary. It can’t be
ignored that the onus of proof, both actus reus and mens rea is on the wife. When the instant triple
talaq is made orally and the man denies it, she will have a little evidence to prove it. Even if she can
prove the actus reus, proving mens rea will not be easy when the husband denies any intention. Wife
has to prove her case without a doubt otherwise man will get the benefit of doubt since criminal
statutes are to be strictly construed. Husband will get the benefit of doubt in most of the cases
therefore this section is not workable. If the husband will be sent to jail merely for uttering triple talaq
without any intention to divorce his wife, just in the heat of extreme anger during common husband-
wife fighting, then it will be an imposition of strict liability which will amount to a gross injustice to
the husband.

Section 5 of the Act allows the married Muslim married woman upon whom, triple talaq was
pronounced to seek allowance for herself and her dependent children from her husband. But it is
important to understand the problem that how he will provide her subsistence when he will remain in
jail without working or earning. It does not provide any means or measures to ensure her allowance
and financial security. Hence, the Act will not protect and benefit the women whose husband is a
daily wager or does not has have any estate or property from which allowance can be given. It will
also make it difficult for her to receive maintenance from him even for the period of iddah and
pregnancy which is her right granted by the Shariah. If the Modi government really wants to protect
the rights of Muslim married women, they should have enhance the benefits and protections granted
by The Muslim Women (Protection of Rights on Divorce) Act 1986, section 125 of CrPC, or they
could include triple talaq under domestic violence by amending PWDV Act, 2005 to enable Muslim
married women to claim additional maintenance under section 20(1) (d) of Domestic Violence Act,
2005, instead of making a law to penalize it. In fact triple talaq law of 2019 is much weaker as
compared to the already available laws in terms of protecting the rights of married women.

Section 7 of the Act made instant triple talaq a cognisable and non-bailable offence, enabling the
police to arrest a Muslim man and lodge an FIR against him on the information of his wife or her
relatives that he has pronounced triple talaq without any preliminary investigation like in the serious
crime of Murder, dacoity etc. Making the pronouncement of instantaneous Talaq non-bailable is
excessive when graver offences like, causing death by negligence under S.304A of IPC, Kidnapping
under S.363 of IPC, and others6 are bailable. The Bill made triple talaq a non-bailable offence except
after hearing the wife. Such a provision may be rampantly misused, even if not, there may be cases
where the Muslim woman is unable to appear before the Magistrate. In such cases, the detained
husband will suffer for no fault even when reasonable grounds for grant of bail exist. Such a
procedure is not just, fair and reasonable to withstand the test of Article 21.

Most importantly, what must be noted is the confusing title of the Act i.e., The Muslim Women
(Protection of Rights on Marriage) Act rather than The Muslim Women (Protection of Rights on
Divorce) Act, The issue of triple talaq is related to the modes of divorce of Muslim Women not the
marriage. The Bill neither deals to protect the married women from the sufferings or the problems
faced by married women which are assault, cruelty, domestic violence, physical and mental abuse,
etc. nor the Act seems to be interested to acknowledge the institution of divorce.

5. CONCLUSION AND SUGGESSTIONS

After evaluation of the Act, it can be concluded that it does not empower married Muslim women but
it definitely harass the Muslim community alone for the procedural infirmity in effecting a divorce. It
can be easily misused and has the power to victimize the generations of Muslim families. There are
neither any appropriate measures in the Act to empower, protect the rights of married Muslim women
nor any safeguards against its misused to prevent the harassment of innocent Muslim men. In short,

6
Concealment of birth by Secret Disposal of Body (Section 318 of IPC), rash driving or riding on a public way
(Section 279 of IPC), Bigamy (Section 494 of IPC), Marriage ceremony fraudulently gone through without
lawful marriage (Section 496 of IPC).
the Act is irrational, arbitrary, unjust, unreasonable, discriminatory and excessive and thus violates
Article 14, 15 and 21 of the constitution.

Women are to be empowered, not to be regulated by law. It is the change in mind-set towards women
which is needed not an excessively discriminatory law. So, the first step to women empowerment,
whether for Muslim women or other, is to acknowledge and respect her rights by putting an end to the
culture of suppression and subduing her in the society; and that can be achieved only by transforming
and improving the society through education, discussion and creating awareness in the society.
Similarly, to empower Muslim women, Muslim Communities need to be educated and aware about
her rights, status and protections granted by Islam, the Constitution and the law of this Country. The
govt. should launch a program to educate and aware the Muslim Community and married couples
about the best form of talaq i.e., talaq-e-ahsan and approved form of talaq i.e., talaq-e-hasan to
provide fair, reasonable protection and justice to the married Muslim women than penalizing their
husband excessively to her disadvantage.

Another important tools available to Muslim women to protect their rights is the creation of woman-
friendly nikah-namah wherein she can add various clauses like her right to put an end to the
marriage, the rights to custody of children if the couple separated, monetary decisions ranging from
the right to have a career, to have kids and raising them a particular way, to where couple choose to
reside, among other things. These are some of the Islamic rights she can claim while getting the
marriage contact drafted.

The Govt. should take special steps to empower Muslim women by providing various skill
development courses and training at free of costs and by securing them jobs related to such skills so
that she can support herself to enable her to live a dignified life and instil her confidence to no longer
live at the mercy of her husband or anyone else. Considering the worst condition in terms of literacy,
education etc. of the Muslim women in India, a reservation quota at least for education in schools,
colleges, professional courses should be made soon if the Modi govt. are genuinely concerned about
the empowerment and welfare of the Muslim Women in the country.