Seminar

PART I
INTRODUCTION
This research assignment will highlight the law relating to talaq-e-biddat in India and the
position of women in this regard. The study of the work shall enable the reader to get an insight
about the law on this point and the evolution of law as per Supreme Court judgements from
Shah Bano to Shayara Bano case. The assignment will initially state about concept of Divorce
under Muslim law and forms of divorce and then will specifically deal with Talaq-e-biddat.
LITERATURE REVIEW
The present study is based on doctrinal and non-doctrinal research. Literature in connection with
the present study is reviewed from various sources. The primary material includes the relevant
national legal instruments, such as, The Protection of Rights of Muslim Women on Divorce Act,
etc. and their official and judicial interpretations as contained in the case laws decided by the
Supreme Court of India.
The existing legal and other relevant literature has been surveyed and scanned for the present
study. Legal literature on the topic has been collected from the Indian Law Institute (I.L.I)
Library, New Delhi; Access to internet (Website) has also been made to scan the latest
data/material on the subject. The Secondary sources i.e. law text books, commentaries, articles
etc. in the journals relating to legal aid are evaluated. The source of the relevant materials is
taken from the internet, the list of which is cited in the bibliography.
OBJECTIVE OF STUDY
The objective of the research is to give the reader an overview about the current divorce laws and
all the rights conferred on women by virtue of the judgements pronounced by the Supreme Court
and its relevance in the current time. The following are the major objectives of the research:
 The primary objective of the study is to make a critical analysis of

the current implementation of Divorce Law of Muslims.
 To study the concept of Talaq e biddat and its various
dimensions.
HYPOTHESIS
It is hypothesised that the existing law of divorce is not being implemented properly in
accordance with the current legislation and Judgement of the Hon’ble Apex Court of the
country.The research shall be used to prove the above laid hypothesis.
METHODOLOGY
The method employed shall be that of doctrinal research. The methodology shall be the analysis
of the principles of methods, rules, and postulates employed by law. It is a systematic study of
methods that are, can be, or have been applied within law and it is based upon the study or
description of methods.
Doctrinal Research is concerned with legal prepositions and doctrines. In case of doctrinal
research the sources of data are legal and appellate court decisions whereas in the other case the
sources of data are less and mostly new techniques have to be used. Doctrinal research is not
concerned with people but documents whereas in case of non doctrinal more importance is given
to the society and people.
The scope of doctrinal research is narrower as compared to non doctrinal since it studies about
what the doctrine or the authority says yet more encouragement is given to doctrinal type of
research than the non doctrinal. There is no requirement of imparting training for collection and
use of sources whereas training is needed to use new techniques in the non doctrinal research. In
case of doctrinal field work is not needed library is sufficient whereas in non doctrinal research
the field work is most important thing.
PART II
The most heated topic at present in India is the issue of triple Talaq in Islam, wherein the
Hon’ble Supreme Court of India has rendered its precious and valuable time to curb out this so
called social evil of Triple Talaq in order to protect the rights of Indian Muslim Women from
this social evil
WHAT IS TRIPLE TALAQ?
Triple Talaq is a form of marriage dissolution in Muslim Law, whereby a husband can give the
divorce to his wife by stating Talaq three times in one row. The presence of wife is not required,
she can be given Talaq without assigning valid reason. The term "Talaq" refers to the repudiation
of marriage by husband under Muslim law. The practice of triple Talaq has been prevailing since
ancient times in India.
HISTORICAL BACKGROUND
Triple Talaq is 1400 year old practice among Sunni Muslims. This is not mentioned in the Quran
and the Sharia law. As per Quran, marriage is intended to be unbounded in time the relationship
between the spouses should ideally be based on love and the important decision concerning both
spouses should be made by mutual consent. When the marital harmony cannot be attained, the
Quran allows and advises the spouse to bring the marriage to an end although this decision is not
to be taken lightly and the community is called upon to intervene by appointing arbiters from two
families to attempt a reconciliation. The Quran establishes further means to avoid hasty divorces,
it prescribes for waiting periods of three months before the divorce is final in order to give the
husband time to reconsider his decision.
The Quran modified the gender inequality of divorce practices that existed in pre-Islamic Arabia,
although some patriarchal elements and the others survived and flourished in later centuries.1
KINDS OF TALAQ(DIVORCE)
There are two major forms of Talaq:-
1)TALAQ-UL-SUNNAT
This form of Talaq is based on the Prophet’s tradition (Sunna) and as such is considered as most
approved form of Talaq. Talaq was in-fact considered as an evil and in case it became/becomes
impossible to avoid this evil then the best method is Talaq-ul-sunnat, wherein there is a
possibility of revoking the effects of this evil. It is also called as revocable Talaq for the reason
that Talaq does not become final at once and there always remain a possibility of compromise
between the husband and wife. Only this kind of Talaq was in practice during the life of the
Prophet. This mode of Talaq is recognized both by Sunnis as well as by the Shia’s.
 Talaq-ul-Sunnat may be pronounced either in Ahsan or in the Hasan form:-
A. Talaq-Ahsan:-
This is the most proper form of repudiation of marriage. The reason is twofold: First, there is
possibility of revoking the pronouncement before expiry of the Iddat period. Secondly, the evil
words of Talaq are to be uttered only once. Being an evil, it is preferred that these words are not
repeated. In the Ahsan Talaq there is a single declaration during the period of purity followed by
no revocation by husband for three successive period of purity.
B. Talaq Hasan (Proper):
This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there
is a provision for revocation. But it is not the best mode because evil words of Talaq are to be
pronounced three times in the successive Tuhrs. The formalities required under this form are as
under:
1
http://legalserviceindia.com/legal/article-26-triple-talaq.html
(a) The husband has to make a single declaration of Talaq in a period of ‘Tuhr.
(b) In the next Tuhr, there is another single pronouncement for the second time.
(c) But, if no revocation is made after the first or second declaration then lastly the husband is to
make the third pronouncement in the third period of purity (Tuhr). As soon as this third
declaration is made, the Talaq becomes irrevocable and the marriage dissolves and the wife has
to observe the required Iddat.
According to Ameer Ali, this mode of Talaq was introduced by the Omayad Kings because they
found the checks in the Prophet’s formula of Talaq inconvenient to them. Since then this mode
of Talaq has been in practice among the Sunni Muslims. Under the Shia Law, an irrevocable
Talaq is not recognised.
ackground
Triple talaq in all its three forms — talaq-e-biddat, talaq ahsan and talaq hasan — was
“recognised and enforced” under Section 2 of the Shariat Act of 1937. Ahsan and Hasan are
revocable. Biddat — pronouncing divorce in one go by the husband — is irrevocable. Biddat
is considered ‘sinful’ but permissible in Islamic law.
Thus, since Shariat Act had recognised triple talaq, it was no longer a personal law to remain
free of the fetters of the fundamental rights rigour but a statutory law which comes under the
ambit of Article 13(1) of the Constitution.
Article 13 defines ‘law’ and says that all laws, framed before or after the Constitution,
shall not be violative of the fundamental rights.
Three sets of judgment
1. Minority judgement of CJI and other justice which said believed that court had no right to
tinker with religious personal laws, which enjoy special protection in the constitution.
2. The majority judgement said that the practice was against the teachings of the Quran and,
therefore, violated Muslim personal law.
3. The final judgement talks about the state of abandoning the triple talaq pronounced in one
go.
The Muslim personal law board has welcomed the decision and said that it was not
supportive of the instant triple divorce. It had inserted a clause to curtail this right of men
long back while providing a model nikahnama. There was also an advisory that all the people
doing the triple divorce in one go will be boycotted socially. The maulvis and kazis were
advised that they must tell this at time of nikah. However, the enforcement have been not
strong enough.
It is true that there is lower incidence among the muslims. But the fact remains that a muslim
girl grows with the consciousness that the unrestrained right is available to the men and after
her marriage, the husband can turn her out of the marital home for any reason.
This feeling still persists among muslim women that they don’t have equal rights of divorce
and thus gender equality is still long battle to be won.
Implications of verdict
It is a progressive judgment. This judgement shouldn’t be politicised for regressive agendas
on either sides of political debate. All that the constitution says is that one form of divorce
available to muslim men is not permitted henceforth. So it is not that other forms of divorce
are not available. The repetition of talaq over three month period is valid and law will accept
it.
1. Rights under art 25 (1) as far as religious freedom is concerned are not available only to
minorities but all.
2. The state’s right to intervene in anybody’s rights or at least religious rights is equal across
the board when it comes to legislative mechanisms being used to user in social welfare.
3. The reason why triple talaq has been rendered unconstitutional atleast by majority
judgement say that triple talaq is not seen as an essential part of practice of islam and
therefore it is not an essential part of the faith. Thus it cannot seek the benediction of
article 25 (1) so far as religious freedoms are concerned. Therefore there is no need for a
separate law for it to be banned or forbidden.
The six months injunction is part of minority judgement. The majority judgement essentially
holds the practice of triple talaq to be unconstitutional.
Impact on Indian society

It will have a positive effect on Indian national life. The courts have intervened that this
particular practice and form of divorce which was otherwise protected under the shariat act
of 1937, to that extent and provision, the shariat act is unconstitutional and thus there will be
no more triple talaq.
There is a balance between being progressive and abiding by constitutionalism because the
biggest fear in these kind of judgements are severe complexities that creep in wherein justice
is tried to be done at expense of constitution and its interpretation. But it hasn’t happened in
this case. The court has abided by the constitution and come out with a categorical finding.
Conclusion
This judgement is important also for a general right of a citizen to approach the court and
strike down irrational law related to religious belief. However, it should be present as some
part of the religious act or law.
This would be useful in a second challenge to sec 377 of IPC because every law which is
arbitrary is liable to be struck down. This is true importance of the judgment.
Connecting the dots:

 Triple talaq verdict has been hailed as a progressive judgement. Analyse your opinion
regarding the same
LEGAL BACKGROUND ON LAW OF DIVORCE AMONG MUSLIMS IN INDIA
Muslim family affairs in India are governed by the Muslim Personal Law (Shariat) Application
Act, 1937 (often called the "Muslim Personal Law"). It was one of the first acts to be passed after
the Government of India Act, 1935 became operational, introducing provincial autonomy and a
form of dyarchy at the federal level. It replaced the so-called "Anglo-Mohammedan Law"
previously operating for Muslims, and became binding on all of India's Muslims.
The shariat is open to interpretation by the ulama (class of Muslim legal scholars). The ulama
of Hanafi Sunnis considered the bidat form of divorce binding, provided the pronouncement was
made in front of Muslim witnesses and later confirmed by a sharia court. However, the ulama
of Ahl-i Hadith, Twelver and Musta'li persuasions did not regard it as proper. Scholar Aparna
Rao states that, in 2003, there was an active debate among the ulama. In traditional Islamic
jurisprudence, triple talaq is considered to be particularly disapproved, but legally valid, form of
divorce.
The Changing social conditions around the world have led to increasing dissatisfaction with
traditional Islamic law of divorce since the early 20th century and various reforms have been
undertaken in different countries. Contrary to practices adopted in most Muslim-majority
countries, Muslim couples in India are not required to register their marriage with civil
authorities. Muslim marriages in India are considered to be a private matter, unless the couple
decided to register their marriage under the Special Marriage Act of 1954. Owing to these
historical factors, the checks that have been placed on the husband's unilateral right of divorce by
governments of other countries and the prohibition of triple talaq were not implemented in India.
Triple talaq is not mentioned in the Quran. It is also largely disapproved by Muslim legal
scholars. Many Islamic nations have barred the practice, including Pakistan and Bangladesh,
although it is technically legal in Sunni Islamic jurisprudence. Triple talaq, in Islamic law, is
based upon the belief that the husband has the right to reject or dismiss his wife with good
grounds.
Law related to Triple Talaq
Triple talaq became illegal in India on 1st August 2019, replacing the triple talaq ordinance
promulgated in February 2019.
The Muslim Women (Protection of Rights on Marriage) Bill, 2019 passed on 26th July 2019
after a very long discussion and opposition finally got the verdict to all women. It makes instant
triple talaq (talaq-e-biddah) in any form— spoken, written, or by electronic means such as email
or SMS, illegal and void, with up to three years in jail for the husband.
The Government first introduced the Act to Parliament in 2017. MPs from Rashtriya Janata
Dal, All India Majlis-e-Ittehadul Muslimeen, Biju Janata Dal, All India Anna Dravida Munnetra
Kazhagam, Indian National Congress and All India Muslim League opposed the bill. Several
Opposition lawmakers called for it to be sent to a select committee for scrutiny. It was passed on
28th December 2017 by the Lok Sabha, or lower house of the Indian Parliament, where the
ruling BJP held the majority of seats.
In a major political win for the Modi government, the Rajya Sabha, or upper house of
Parliament, where the ruling NDA did not have a majority, approved the bill (99-84) after a
lengthy debate.
The bill followed a 2017 Supreme Court ruling the practice of instant triple talaq is
unconstitutional and a divorce pronounced by uttering talaq three times in one sitting is void and
illegal.
Muslim Triple Talaq Petitioner Ishrat Jahan welcomed the Bill when it was presented.
The triple talaq bill proposed by the previous Modi government lapsed when an election was
called and the Lok Sabha was dissolved before the bill was sent to the Rajya Sabha for approval.
Judgement
The case was called Shayara Bano v. Union of India & Others (Click Here). The bench that
heard the controversial Triple talaq case in 2017 was made up of multifaith members. The five
judges from five different communities are Chief Justice JS Khehar (a Sikh), and Justices Kurian
Joseph (a Christian), RF Nariman (a Parsi), UU Lalit (a Hindu) and Abdul Nazeer (a Muslim).
The Supreme Court has to examine whether Triple talaq has the protection of the constitution—if
this practice is safeguarded by Article 25(1) in the constitution that guarantees all the
fundamental right to “profess, practice and propagate religion”. The Court wants to establish
whether or not Triple talaq is an essential feature of Islamic belief and practice.
In a 397-page ruling, though two judges upheld validity of Instant triple talaq (talaq-e-biddat),
the three other judges held that it was unconstitutional, thus barring the practice by 3–2
majority. One judge argued that instant triple talaq violated Islamic law. The bench asked the
central government to promulgate legislation within six months to govern marriage and divorce
in the Muslim community. The court said that until the government formulates a law regarding
instant triple talaq, there would be an injunction against husbands pronouncing Instant triple
talaq on their wives.
Legislations
· The Muslim Women (Protection of Rights on Marriage) Bill, 2017
· The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018
· The Muslim Women (Protection of Rights on Marriage) Bill, 2018
· The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019
· The Muslim Women (Protection of Rights on Marriage) Act, 20192
2
https://www.mylawman.co.in/2019/08/an-article-on-triple-talaq-by-harshit.html
Conclusion:
It took us a little more than 70 years to realize and declare that religious conservatism and
orthodoxy is not superior to women’s dignity. The Muslim husbands no longer have the power to
throw out their wives in one go. Way back in the 1950s the then Prime Minister of India Nehru
and the first Law Minister of India Ambedkar had shown great impatience to overhaul the
archaic Hindu laws and tilt them in favour of the Women and despite several protests and
insecurity among the Hindus the Hindu personal laws were overhauled by successive
legislations.
When confronted with the question of similar reforms in still more chauvinist Muslim Law, the
then Prime Minister cited minority insecurity and fears created by the events of Partition as a
reason of delay in transforming the Muslim laws. However, it was promised that when the
situation is ripe there will be similar reforms in the Muslim personal law. But the successive
governments which actively engaged in minority appeasement and vote bank politics failed to
deliver on this promise and the legislature of this country let down the Muslim women of India.
Finally, the Rajiv Gandhi led Government mercilessly broke this promise when it overruled a
Supreme Court judgment which had provided the right of maintenance to Muslim women
beyond the period of Iddat by bringing a law overruling the judgment.
We cannot expect the Hon’ble Supreme Court to single handedly transform the Muslim law the
baton now passes on to the Parliament to ensure that centuries of injustice to the Muslim women
is undone.
CHAPTER 1
CONSTITUTIONAL SENTIMENTS AND JUDICIARY – A STUDY ON FREEDOM OF RELIGION IN INDIA WITH
SPECIAL REFERENCE TO TRIPLE TALAQ (TALAQ-E-BIDDAT) RULING.
Amit Raj Agrawal
Abstract
In India there are many practices associated with religion, which are superstitious in nature, though the
apex court by inventing doctrine of essential religious practices placed those practices outside the scope
of part III of the Constitution of India, but nonetheless the scholars have always questioned the basis
and proprietary of the Court and accused the Court of having interfered with the matter of religion.
Recently, the five judges’ Constitution Bench with majority dictum in Sharya Bano case held the practice
of instant triple talaq (Talaq-e- Biddat) is invalid. The majority stand happens to be in direct conflict with
the minority opinion authored by Khehar , C.J., where he observed triple talaq (Talaq-e-Biddat) to be
the part of one’s religious faith and thus beyond the scope of judicial scrutiny. Though the majority have
succeeded in securing constitutional values to a greater extent, but still a question relating to inclusion
of personal law within the scope of judicial review has not been answered authoritatively. Undoubtedly,
the constitutional mandate enshrined under article 25(2)(b) and the legitimate judicial authority
empowered government and the judiciary to bring significant reforms in the matters concerning
atrocious application of personal law, but significant work is yet to be done. Through, this paper author
attempts to presents the constitutional position on freedom of religion in India with critical analysis of
ruling of the apex court in triple talaq (Talaq-e-Biddat) matter.
I. Introduction ........................................................................... II. Constitutional Mandate over freedom

of Religion............. III. Personal Law and the Judicial Acumen................................ IV. Supreme Court of
India on practice of Talaq-e-Biddat...... V. Summary of discussion............................................................
Freedom of religion means that the individual is free to consider and to discuss with others the relative
claims of differing religions, and to come to his decision without any interference from the state. He is
free to reject them all. If he decides to embrace one religion, he has freedom to follow its teachings,
participate in its worship and other activities, propagate its doctrines, and hold office in its
organisations. If the individual later decides to renounce his religion or to embrace another, he is at
liberty to do so.
Smith in unequivocal terms emphasises upon the magnitude of religious freedom guaranteed by the
Constitution of India. However, it is important to note that unlike other articles of the Part III of the
Constitution, articles 25 and 26 of the Constitution of India starts with limitation first and then
articulates the rights. Perhaps the reasons may be - A citizen of India is a citizen of India first and a
Hindu, Muslim, Christian, Sikh, Parsi, Jain or Buddha thereafter. Further, P.K Tripathi3 writes that
the scheme of precedence adopted by the articles only indicate unmistakably the salutary principle of
our constitutional philosophy in this regard, namely, the principle of giving primacy to the individual,
placing him before and above religion, and recognizing freedom of religion only as incidental to his well
being and liberty.
1 The Constitution of India, art. 25 reads as - (1) Subject to public order, morality and health and to the
other provisions of this Part, all persons are equally entitled to freedom of conscience and the right
freely to profess, practice and propagate religion. (2) Nothing in this article shall affect the operation of
any existing law or prevent the State from making any law— (a) regulating or restricting any economic,
financial, political or other secular activity which may be associated with religious practice; (b) Providing
for social welfare and reform or the throwing open of Hindu religious institutions of a public character to
all classes and sections of Hindus. Explanation I.—The wearing and carrying of kirpans shall be deemed
to be included in the profession of the Sikh religion. Explanation II.—In sub-clause (b) of clause (2), the
reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or
Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. 2
Donald Eugen Smith, India as a Secular State 4 (Oxford University Press, Bombay, 1stedn., 1963). 3
Dr.V. M Bachal, Freedom of Religion and Indian judiciary (Sangam Press Ltd, Allahabad,1st edn., 1975).
ILI Law Review Summer Issue 2018
73
Under the constitutional scheme, in between citizen and religion, for state citizen matter and religion
comes thereafter. State is primarily concerned with the well being of its citizens; therefore, subjecting
the freedom of religion to some well identified limitation is the manifestation of the constitutional
commitment of the state. Judiciary, as an important limb of the state and having entrusted with the
duty of protecting the rights of the citizens4, from time to time has involved in rigours interpretations of
the constitutional provisions of freedom of religion enshrined under part III of the Constitution.5 On this
one of the renowned scholars of constitutional law of this country has identified the constitutional duty
of higher judiciary.6 However, judicial approach over religious freedom attracts severe criticism from
the scholars.7 The Constitution looked to the future with a commitment to social reform and
change.8 Therefore, the judicial role becomes vocal and important. Nonetheless, the fundamental
question always remains unanswered as to permissible limit of judicial hands in bringing social reform
and change. Touching upon this aspect, Kerala high court has made a pertinent observation:9
Courts interpret law and evolve justice on such interpretation of law. It is in the domain of the
legislature to make law. Justice has become elusive for
4In discharging the duties assigned to it, this court has to play the role of a ‘sentinel on the qui vive,
State of Madras v. V.G Row, AIR 1952 SC 196. 5Ofrit Liviatan, “Judicial Activism and Religion– Based
tension in India and Isarael” 26 AJICL 589(2009). - Faced with the dual challenge of harmonizing
constitutional protections to religious freedom with the quest of effectuating gradual social change, the
Indian Supreme Court has walked a thin line, acknowledging that it is often searching for the “common
sense view . . . [to] be actuated by considerations of practical necessity.”, the Court did not shy away
from innovative judicial constructions that often produced controversial and conflicting legal results,
generating ample applause along with harsh criticism. 6 H.M Seervai, Constitutional Law of India (N.M
Tripathi Pvt. Ltd, Bombay, 4thedn., 1993). blatant violation of religious freedom by the arbitrary action
of religious heads has to be dealt with firmly by our highest Court. This duty has resolutely discharged by
our high courts and the Privy Council before our Constitution. No greater service can be done to our
country than by the Supreme Court and the High Courts discharging that duty resolutely, disregarding
popular clamour and disregarding personal predilections. 7B.N Kirpal, Ashok H Desai, et.al. (eds.),
Supreme But Not Infallible Essays in Honour of the Supreme Court of India 263 (Oxford University Press,
New Delhi, 2000). The Supreme Court needs to review its jurisprudence on religious freedom. The
Court must take religion as it finds them, even if the claims made are unusual. Obvious cases of fraud
can be easily detected. It does not lie with the judiciary to tell people what constitutes the faith, or
whether they are Hindus or which particular tenet or practice is an ‘essential practices’ exclusively
entitled to constitutional protection. The ‘essential practices’ test was originally designed to enhance
those aspects of faith which called for rigorous scrutiny and not to deprive non-essential practices of
constitutional protection altogether. If any particular practice is found to be invidious, it can always be
restrained by way of the extensive range of permissible restrictions rather than be controversially
rejected by judges playing high priests of each and every faith.See also J.Duncan M. Derret, Religion Law
and the State in India 447(Oxford University Press , New Delhi, 1st edn.,1999). 8Ibid. 92017 (1) KLT 300.

74
Muslim women in India not because of the religion they profess, but on account of lack of legal
formalism resulting in immunity from law.
Observ ations of the court raise a very important discussion upon the subject, does legislative vacuum
on the subject permits the court to shirk its responsibility by remaining mute spectator of the malady
suffered by Muslim women in the name of religion? And further when the matter happens to be one
which involves the alleged violation of fundamental right, how far it is justified to seek legislative action
when judicial remedy in itself is the fundamental right.10
Convincingly, majority in Shayara Bano v. Union of India11 by 3:2 expressly held that triple – talaq. i.e
talaq-e- biddat is invalid relying upon the decision of this court in Shamim Ara v. State of UP12 and
earlier decisions of Guwahati high court.13 However, it is important to note the none of the decisions
mentioned above have expressly rendered triple-talaq, i.e. talaq-e- biddat invalid, rather the decisions
provided for certain guidelines pertaining the exercise of right of divorce by Muslim men in accordance
with Islamic injunction. On the other hand, the minority opinion authored by Chief Justice is also
important to note as he observed that, talaq-e-biddat, though bad in theology, is good in law, is a matter
of personal law of Sunni Muslim belonging to Hanafi School and therefore the same is given the
protection of article 25 of the Constitution of India. He further advocated for appropriate legislative
measures. Certainly, majority and minority opinions of the court present a peculiar notion of Islamic
jurisprudence on the issue of personal law of the Muslim community. Aforesaid Constitution Bench
decision of the apex court on the subject is of immense relevance on account of the fact that other
issues touching upon the personal laws of the Muslim
10Supra note 4. Also see, Obergefell v. Hodges, 135 S. Ct. 2584 at 2605 - “The dynamic of our
constitutional system is that individuals need not await legislative action before asserting a fundamental
right. The Nation’s courts are open to injured individuals who come to them to vindicate their own
direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection
when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.
The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials and to establish them as legal
principles to be applied by the courts. “West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943).
This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no
elections.” 11 2017 (9) SCALE 178 : Writ Petition (C) No 118 of 2016 ( Decided on August 22, 2017). 12
(2002) 7 SCC 518. 13Rukia Khatton v. Abdul Khalique Laskar, (1981) 1 Gau LR 375, Also see, Jiauddin
Ahmend v. Anwara Begum, (1981) 1 Gau LR 358.
75
community is pending before the apex court.14 Therefore, the present study is undertaken to examine
the scope of freedom of religion enshrined under the constitution of India and the critical examination
of the ratio of the higher court on the subject.
II. Constitutional Mandate over Freedom of Religion During the Constituent Assembly Debates, Dr. B.R
Ambedkar, the Chairperson of drafting Committee on the proposal of saving of the personal law within
the ambit of religious freedom remarked:15 The religious conception in this country
is so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion
and if personal law is to be saved, I am sure about it that in social matters we will come to a
standstill...... There is nothing extraordinary in saying that we ought to strive hereafter to limit the
definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may
be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws,
for instance , laws relating to tenancy or laws relating to succession , should be governed by religion....I
personally do not understand why religion should be given this vast expensive jurisdiction so as to cover
the whole of life and to prevent the legislature from encroaching upon the field. (Emphasis added)
An observation of Dr. Ambedkar clearly shows that he was not in favour of extending the scope of
religion as to include personal law within its ambit.
It has been observed that, during initial days of the Indian Constitution, the Bombay High Court was
not in favour of broadening the scope of religion and accordingly, the scope of
14After Triple Talaq, Petition in SC For Declaring Polygamy, Nikah-Halala Unconstitutional, available at:
http://www.livelaw.in/triple-talaq-petition-sc-declaring-polygamy-nikah-halala-unconstitutional/ (last
visited on May 28, 2018). Also see, Delhi Woman Moves SC For Criminalising Polygamy, Nikah-Halala,
available at:http://www.livelaw.in/delhi-woman-moves-sc-criminalising-polygamy-nikah-halala-read-
petition/ ( last visited on May 28, 2018). 15 Constituent Assembly Debates, Vol VII, at 781.
76
religion was given narrow interpretation.16 However, the apex court didn’t accept this narrow
interpretation of religion suggested by Bombay high court and broadened the scope of religion in
Commr., Hindu Religious Endowments v. Sri Lakshmindra Thritha Swamiar of Sri Shirur Mutt17 as
under:17A
Religion is a matter of faith with individual or communities and it is not necessary

theistic. There are well known religions in India like Buddhism or Jainism which does not believe in God
or in any intelligent first cause. A religion undoubtedly has its basis in a system of beliefs or doctrines
which are regarded by those who profess that religion as conducive to their spiritual well being, but it
will not be correct to say that religion is nothing else but a doctrine of belief. A religion may not only lay
down a code of ethical rules for its followers to accept, it might prescribe rituals and observances,
ceremonies and modes of worship which are regarded as integral part of religion, and these forms and
observances might extend even to matters of food and dress. (emphasis added)
In the above mentioned case, the Court has further bifurcated the religion into essential and non
essential practices and accorded the protection of article 25(1) only to essential religious practices. On
this, Smith in his work rightly pointed out while commenting on the apex court’s ruling- “what
constitutes the essential part of religion is primarily to be ascertained with reference to the doctrines of
that religion itself. If the tenets of any religious sect of the Hindus prescribe that offering of food should
be given to idol at particular hours of the day , that periodical ceremonies should be performed in a
certain way at a certain periods of the year or that there should be daily recital of sacred texts or
oblation to the sacred fire, all these would be regarded as parts of religion and mere fact that they
involve expenditure of money, or employment of priests and servants or the use of marketable
commodities would not make them secular activities partaking of a commercial or economic character.”,
the court in a way has broadened the scope of religion to include more in its ambit.
16 Ratilal v. State of Bombay, AIR 1953 Bombay 242. The Bombay high court confined the scope of
religion only to ethical and moral percepts and didn’t even include the ritual and ceremonies as referred
to by Dr. Ambedkar. Therefore, whatever binds a man to his own conscience and whatever moral and
ethical principles regulate the lives of men that alone can constitute religion as understood in the
Constitution. See Also, supra note 2 at 105, 106. 17 AIR 1954 SC 282. 17A Ibid at 290.
77
The effect of the ratio decidendi was that the court in a number of cases has analysed the scope of
religion as to construe whether the same be given the fundamental protection under the Constitution or
not? In Mohd. Hanif Quareshi v. State of Bihar,18 the apex court held that sacrifice of cow could not be
considered to be an obligatory overt act for a Muslims to exhibit his religious beliefs and accordingly
construed the subject of cow slaughter not an essential religious practice as to qualify for fundamental
constitutional protection. Interestingly, the court in order to arrive the decision has given its own
interpretation of Quran, Hamilton’s translation of Hedaya and the testimony of a Hindu Pandit in the
absence of an ‘affidavit’ by a [Muslim] Maulana explaining the implications of these verses. This is
certainly a matter of concern as it has been rightly pointed out by senior advocates, Rajeev Dhawan and
Fali S Nariman that “this is an undesirably unsafe way of examining and pronouncing on faith. Judges
become theologians and are forced to make roving inquiries about all or any religious texts, beliefs or
practices. Once the door is opened, there is no limit to which the Court cannot go.”19 Interestingly,
on the issue of faith, the Calcutta high court bravely told the Supreme Court that the latter was wrong
and had not examined all the facts.20 Further controversy crops in with the decision of apex court on
religious distinctness of some sects.21 On perusal of the above decisions, the observation of court
raises an important question about the propriety of court in deciding the meaning of the term religion
for the purpose of construing the scope of it within the ambit of part III of the Constitution. However, it
is to be noted that as observed in earlier paragraphs, Dr. Ambedkar while commenting upon the state of
religious affairs in the country raised the concern about its scope and ambit and therefore, it becomes
important to understand the role of constitutional courts of the country. Further, under the
constitutional scheme, mandate of article 25 is not absolute as it is subject to public order, health,
18 AIR 1958 SC 731. 19 Supra note 7 at 260. 20 In the matter of Jagdiswarananda v. Police
Commissioner, Calcutta (1984)1 SCR 447, apex court observed that the tandava dance was not a part of
faith of Anand Margis. However, in Commissioner v. Jagdishwarananda, AIR 1991 Cal 263. Calcutta high
court observed contrary. 21 Supra note 7 at 261. - the disciples of sage Ramakrishna who had created
separate maths (religious endowments) and “missions” throughout the world were denied their
legitimate status of being recognized as a separate sect within Hinduism Brahamchari Sidheshwar v.
State of West Bengal,(1995)4 SCC 646. The Swaminarayans were told that on a true interpretation of
Hinduism. they were Hindus, even if they were protested they were not. Swami Yagnapurushdasji v.
Muldas (1966) 3 SCR 242.
78
morality and other provisions of part III of the Constitution. Furthermore, state reserves power to
restrict and regulate the secular, financial, economic and political activities associated with religious
practice. The constitutional limitation on freedom of religion necessarily requires pragmatic and
balanced judicial approach. Therefore, it is humbly submitted that, while the court has a constitutional
duty, but the same should be discharged with utmost caution and care and consistent with aims and
objects of the Constitution. On this, the recent decision of the Bombay High Court on Haji Ali Dargah
Trust case and its subsequent approval by the apex court needs loud applauds.22 III. Personal law and
the judicial acumen In India, those who advocate for reforms in personal laws as well as those who are
against the reform, aligned their arguments in the provisions of the Constitution itself. As it has been
rightly observed23 that the State claims the right to reform these laws in order to bring them into
conformity with the Constitution by giving women equality. Further, the opposition to reform is based
on the Constitutional right to freedom of religion, guaranteed as a fundamental Right by Articles 25-28,
which is claimed to encompass the right to be governed by religious personal laws. Accordingly the
Constitution itself present a difficult scenario and resultantly the question which still requires convincing
answer as to the permissible limit of state interference in the matter of personal law in a secular setup.
The argument becomes critical with further
22 The issue pertains to denial of entry of women in the sanctum sanctorum of Haji Ali Dargah at
Bombay. A public interest Litigation was filed alleging gender discrimination and arbitrary denial of
access to women. The division bench of Bombay high court in Dr. Noorjehan Safia Niaz v. State of
Maharastra, (2016) 5 AIR Bom R 660 , held that neither the objects nor the Scheme vest any power in
the trustees to determine matters of religion, on the basis of which entry of women is being restricted.
The court further held that the Haji Ali Dargah Trust is a public charitable trust. It is open to people all
over the world, irrespective of their caste, creed or sex, etc. Once a public character is attached to a
place of worship, all the rigors of Articles 14, 15 and 25 would come into play. Therefore, Trust has no
right to discriminate entry of women into a public place of worship under the guise of ‘managing the
affairs of religion’ under article 26 and as such, the state will have to ensure protection of rights of all its
citizens guaranteed under Part III of the Constitution, including articles 14 and 15 , to protect against
discrimination based on gender. Against the above order of the High Court, special leave petition was
filled before the Supreme Court, but the court upheld the order and directed the trust to remove all the
obstructions to facilitate women pilgrims to enter the sanctum sanctorum of the Haji Ali Dargah at par
with men. Haji Ali Dargah Trust v. Dr. Noorjehan Safia Niaz, (2016) 16 SCC 788. 23 Archana Prasshar,
Women and Family Law Reform in India 19 (Sage Publication India Pvt. Ltd., New Delhi, 1992).
79
observations24 that the state has not adopted a consistent policy with regard to the reform of religious
personal laws. Further, in the Constituent Assembly, the scope of religious freedom vis-a-vis personal
law was extensively dealt with. Some of the member25 of the Constituent Assembly suggested that the
personal law should be given immunity from state regulation on account of sanctity of religion attached
to it. However, the majority of the members of the Assembly rejected the argument and has held that
personal laws shall not be given protection from state regulation on account of religion.26 Thus the
members of the Constituent Assembly were clear in their approach as far as personal laws are
concerned, they didn’t intend to immunise the personal law from state regulation on account of
religious sanctity attached to it. Soon after the enforcement of the Constitution, the issue
concerning the application of personal law vis-a- vis the constitutional mandate concerning religious
freedom was called in question before the division bench of Bombay high court.27 Though the court
held that personal law doesn’t come within the meaning of the term “laws in force” within article
13(3)(b) of the Constitution and thereby explicitly accorded protection to personal law from operation
of part III28 of the Constitution. But nonetheless while adopting the narrow interpretation of term
religion29, court emphatically observed the regulatory role of state on account of social reform and
accordingly refused to accept the argument of respondent as to include the practice of
24 Id at 18. Hindu Personal law has been extensively reformed in order to give equal legal rights to
Hindu women. The personal laws of other (minority) communities have been left virtually untouched,
ostensibly because the leaders of these communities claim that their religious laws are inviolate and also
because there is said to be no demand for change from within their communities. 25 Constituent
Assembly Debates, Vol VII, at540-541, Mr. Mohammad Ismail Sahib has of the view that a secular state
should not interfere with personal law of the people, which was part of their faith, their culture, and
their way of life. Further, Mr. Naziruddin Ahmad advocated for personal law as a matter of faith, he also
argued that even British who enacted uniform civil and criminal codes, never tried to scrap the personal
law . 26 Supra note 15. Also see observation of K.M Munshi at 548. “that Religion must be restricted to
spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and
modified in such a manner that we may evolve, as early as possible , a strong and consolidated nation”.
27 The State of Bombay v. Narasu Appa mali, AIR 1952 Bom 84. Bombay Prevention of Hindu Bigamous
Marriages Act 1946 , has been called in question on account of violation of fundamental right enshrined
under art 14, 15 and 25. The court has upheld its constitutional validity. See detailed reasons at page no-
85-94. 28 Fundamental Rights. 29 Ibid. A sharp distinction must be drawn between religious faith and
belief and religious practices. What the state protects is religious faith and belief.
80
polygamy as an integral part of Hindu religion. Madras high court30 on similar line upheld the
constitutionality of Madras Hindu (Bigamy Prevention and Divorce) Act 1949.. Even Allahabad high
court31 advocated for the regulatory role of state for social welfare and reform. On the issue of
divorce among the Christians, the observations of Kerala32 and Bombay high courts33 necessarily
strengthen the constitutional values in a multi-religious society.34 Declaring the provisions contained
under section 10 of the Divorce Act, 1869 violative of constitutional imperative enshrined under articles
14, 15, 21, the high courts in themselves assumed the reformist attitude to bridge the gap between the
personal laws and in particular Kerala high court observed:35 “Inevitable, the role of the reformer has to
be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be
suffered when it is palpable.
30 Srinivas Aiyar v. Saraswathi Ammal, AIR 1952 Mad 193. “The freedom to practice religion is not an
absolute right but as article 25 itself states it is subject to public order, morality and health and subject
to other provisions of this part. Art 25(2) further empowers the legislature to enact a law providing for
social welfare and reform or the throwing open of Hindu religious institutions of public character to all
classes and sections of Hindus. The religious practice may be controlled by legislation if the state thinks
that in the interest of social welfare and reform it is necessary to do so” 31 Ram Prasad Seth v. State of
U.P, AIR 1957 All 411. Rule 27, U.P Governmnet Servant conduct rules, which provides that a
Governmnet servant cannot marry a second wife during the presence of the first wife without the
permission of the State Governmnet does not infringe the fundamental right guaranteed under Art 25.
Marriage is a social institution and it may be for the welfare of the State to control such an institution
and to bring about measures of reforms, which the legislature’s wisdom thinks proper to do in the
interest of the State. 32 Ammini E.J v. Union of India, AIR 1995 Ker 252(FB). 33 Pragati Varghese v. Cyril
George Verghese, AIR 1997 Bom 349. 34 Provisions contained under section 10 of the Divorce Act, 1869
(Act 4 of 1869), to the extent it violates arts 14, 15 and 21 are unconstitutional. Under Section 10 while
the husband can seek dissolution of marriage on the ground that his wife has been guilty of adultery
simpliciter, the wife has to prove that the husband is guilty of adultery which is (I) incestuous, (2)
coupled with cruelty which without adultery would have entitled her to divorce a mensa et toro, (3)
coupled with desertion without reasonable excuse for 2 years or upwards, etc. Therefore, as far as the
ground of adultery is concerned husband is in much favorable position when compared to the wife since
she has to prove adultery with one or other aggravating circumstances indicated in the section itself.
Evidently the above discrimination is one purely based upon sex and nothing else. Such a discrimination
based purely on sex will be against the mandatory provisions in Article 15 of the Constitution of India
and denial of equality before law guaranteed under Article 14 of the Constitution. Further, spouses
belonging to all other religions governed by Hindu Marriage Act, 1955, Parsi marriage and Divorce Act ,
1936, Muslim wives under the Dissolution of Muslim Marriage Act, 1939, Special Marriage Act, 1934 and
Foreign Marriage Act, 1969 are entitled to get dissolution of their marriage on the ground of cruelty and
desertion for the period fixed by the respective Acts. Thus, in regard to the grounds allowed by law for
dissolution of marriage, there is a discriminatory treatment meted out to christen spouses. The
discrimination resulting from the absence of suitable provisions recognizing cruelty and desertion for a
reasonable period as grounds for dissolution of marriage in the Act can in the circumstances be treated
only as one based solely on religion and as such violative of Article 15 of the Constitution. Article 21
guarantees protection of life and personal liberty. Right to life, includes the right to life with human
dignity. A Christian wife, who is treated cruelly by her husband and is subjected to indignities, is
compelled to live with him without dignity. Personal liberty guaranteed to every person under Article 21
of the Constitution is denied to Christian women. 35 Supra note 32 at 275.
81
Later on in conformity with the observation of High Courts, Parliament of India has amended section
1036 as to ensure gender equality and to bring parity among religious identities. On perusal of
decisions of various high courts across the country, it is evident that the courts are inclined towards
reform in personal law and in certain cases courts themselves assumed the role of legislature in bringing
reform as to protect the constitutional values and to ensure the existence of constitutional culture in the
country. Further, V.N Khare37the then, CJ, strongly recommended for Uniform Civil Code in the Country.
Interestingly, in another case where a public interest litigation challenging the constitutionality of
various personal laws was filed before the apex court, the apex court refused to go into its merits on
account of same being the subject matter of state policies, reflect cautious approach the court has
undertaken with regard to personal laws.38 Further, it is important to note here that the observations
of Division Bench of Bombay high court in Narasu Appa Mali39, appears to be the standard for the
courts as regard nature of personal law vis-a-vis fundamental rights are concerned. As the court
observed that the laws in force’ in article 13(3)(b) referred to statutory laws, therefore, it means
personal laws which are codified and acquired the statutory shape , are well within judicial reach. As it
has also been observed that:40 - the position generally seems to be that Indian courts will not consider
whether uncodified personal laws are consistent with the Constitution on the ground that they do not
amount to laws in force. They will, however, consider this question when dealing with custom or
codified personal laws. Aforesaid discussions present real dichotomy between the scope of religious
freedom under the Constitution of India and personal law, though the constitutional courts have
refrained from testing the constitutionality of uncodified personal law, nonetheless, the courts have
consistently been advocating for reforms in personal laws.41
36 The Indian Divorce (Amendment) Act 2001(Act 51 of 2001). 37 John Vallamattom v. Union of India,
AIR 2003 SC 2903 at 2913. 38 Ahmadabad Women Action group v. Union of India, AIR 1997 SC 3617. 39
Supra note 27. 40 Farrah Ahmed, Religious freedom under the personal Law System 35 (Oxford
University Press, New Delhi, 1st edn., 2016). 41 Pannalal Bansilal v. State of A.P (1996) 2 SCC 498.
82
Even the renowned Muslim scholar has advocated for reforms in Muslim personal law as per the
observation of Mohammad Ghouse42 whether Muslims who intends to keep plural wives or divorce
their wives unilaterally for no reason or any reason, or who refuses to maintain their divorced wives, in
any manner involve in the act of professing, practicing or professing their religion. On this Mohammad
Ghouse43argued that marriage, divorce, inheritance and other aspects of personal status despite the
sources of Muslim law regulating them, social or secular activities surrounding them, the state can
validly enact measures of social welfare and reform in respect of matters governed by Muslim Law. He
further observed that in India Muslim Law obtains binding force not from the divine law but from the
Constitution of the country. Though, the observation seems to be extreme but the role of the state is
important.
IV. Supreme Court of India on practice of Talaq-e-biddat - Observations Supreme Court of India in
Shayara Bano v. Union of India44 case has critically analysed the practice of triple talaq, i.e talaq-e
biddat on the touch stone of constitutional norms, the Muslim Personal Law (Shariat) Application Act,
1937, judicial incisiveness both pre and post independence, and scholarly writings. Though minority
observed the practice of triple talaq, i.e talaq-e biddat as an essential part of one’s faith and same is
constitutionally protected, the majority ruled that the practice of triple talaq, i.e. talaq-e-biddat is
invalid. The matter is adjudicated by constitutional bench of five judges and decided by 3:2. Jagdish
Singh Khehar, CJ S Abdul Nazeer, J were in minority, where as Kurian Joseph, Rohintan F Nariman and
U.U Lalit, JJ. formed the majority. Interestingly, the minority opinion, authored by Khehar C.J treating
the practice of triple talaq as a part of one’s faith and accorded fundamental protection of art 25 of the
Constitution of India irrespective of the fact that the practice is considered as irreligious within the
religious denomination in which the practice is prevalent necessarily question the judicial acumen
relating to doctrine of essential religious practice evolved to test the qualification for art 25 of the
42 Infra note 37. 43 Mohammad Ghouse, Personal law and the Constitution of India, available
at:http://14.139.60.114:8080/jspui/bitstream/123456789/736/15/Personal%20Laws%20and%20the%2
0Constitution %20in%20India%20.pdf (last visited on June 8, 2018). 44 Supra note 11.
83
Constitution of India. Minority’s, raison d’être relating to the practice of talaq-e-biddat of its having
widespread prevalence in India as the practice is observed by 90% of the Muslims (who belong to the
Hanafi School) and consequently treating the same having approval of particular religious denomination
and thereby considering it as one’s religious faith certainly does not find space under the constitutional
jurisprudence relating to fundamental rights of freedom of religion. What is the test of personal
law? Is there exist any distinction between the expression “personal law” and “custom and usages.” As
per the observation of Chagla, CJ. in Narasu Appa Mali45 case, “Custom and Usage is deviation from
personal law and not personal law itself. The law recognises certain institutions which are not in
accordance with religious texts or even opposed to them because they have been sanctified by custom
or usage, but the difference between personal law and custom and usage is clear and unambiguous”.
Further, the apex court itself ruled in Mohammad Ahmed Khan v. Shah Bano Begum46 “there can be no
greater authority on...[ a particular question of Muslim personal law] than the holy Quran”.
Furthermore, observations of Farrah Ahmed47 on Muslim Personal Law (Shariat) Application Act, 1937,
- This enactment claims to apply Muslim personal Law (Sharait) to Muslims on certain questions. This is
a claim that a certain set of rules will apply to Muslims and also that these are rules of Islamic religious
doctrine certainly find space with the very object and purpose of the Act of 1937.48 And also bring out
distinction between personal law and custom and usages. Keeping in view, the aforesaid observations,
minority opinion is indeed surprising as to how can an
45 Supra note 27 at 88. 46 AIR 1985 SC 945. 47 Farrah Ahmed, Religious Freedom Under the personal
Law System 26 (Oxford University Press, New Delhi, 1st ed., 2016). 48 STATEMENT OF OBJECTS AND
REASONS- For several years past it has been the cherished desire of the Muslims of British India that
Customary Law should in no case take the place of Muslim Personal Law. The matter has been
repeatedly agitated in the press as well as on the platform. The Jamiat-ul-Ulema-i-Hind, the greatest
Moslem religious body has supported the demand and invited the attention of all concerned to the
urgent necessity of introducing a measure to this effect. Customary Law is a misnomer in as much as it
has not any sound basis to stand upon and is very much liable to frequent changes and cannot be
expected to attain at any time in the future that certainty and definiteness which must be the
characteristic of all laws. The status of Muslim women under the socalled Customary Law is simply
disgraceful. All the Muslim Women Organisations have therefore condemned the Customary Law as it
adversely affects their rights. They demand that the Muslim Personal Law (Shariat) should be made
applicable to them. The introduction of Muslim Personal Law will automatically raise them to the
position to which they are naturally entitled. In addition to this present measure, if enacted, would have
very salutary effect on society because it would ensure certainty and definiteness in the mutual rights
and obligations of the public. Muslim Personal Law (Shariat) exists in the form of a veritable code and is
too well known to admit of any doubt or to entail any great labour in the shape of research, which is the
chief feature of Customary Law.
84
oppressive practice which lacks religious sanctity, and is against the very dignity of women be given the
protection of faith . It is also important here to note that though minority relied extensively on mandate
of section 2 of the Act of 1937 but failed to observe the importance of statement of object and reasons
of the aforesaid legislation. Though majority have ruled in favour of invalidity, but they have adopted
different paths. Kurian Joseph’s observations that the Muslim Personal Law (Shariat) Application Act,
1937, does not confer statutory status to Muslim Personal Law (Shariat) , and therefore in respect of
certain matters49, the rule of decision shall be Muslim Personal Law (Shariat) , but since , the practice
of talaq-e-biddat is against the basic tenets of holy Quran and consequently it violates Sharait
emphatically recognises the religious sanctity behind the source of Muslim personal law. In Indian
context, observation stands good for two purposes. Firstly, it denounces the practices from
constitutional protection, which have evolved out of arbitrary customary practices, lacking religious
sanctity and secondly, it recognises the regulatory role of the state as to bring reforms within the
constitutional framework. Further, the illuminating exposition of law laid down by Justice Rohinton F
Nariman as to confer statutory status to Muslim Personal Law (Shariat) and to bring it within the catch
of article 13(1)(b) of the Constitution, as per the existing constitutional jurisprudence indubitably
provides the Muslim women with the constitutional safeguards enshrined under article 14, 15 and 21
of the Constitution. However, the researcher respectfully expresses his disagreement on construction of
the Act of 1937 with Rohinton F Nariman on account of the following facts. First, it is a sound principle
of construction of a statute as observed in Sussex Peerage case50 and subsequently followed in other
cases51 as well, “that if the words of the statute are in themselves precise and unambiguous , then no
more can be necessary than to expound those words in their natural and ordinary sense. Here the Act of
1937 expressly provides under section 2 of the Act of
49 Muslim Personal Law (Shariat) Application Act 1937- s. 2 -Application of Personal law to Muslims. –
Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to
agricultural land) regarding intestate succession, special property of females, including personal
property inherited or obtained under contract or gift or any other provision of Personal Law, marriage,
dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower,
guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable
institutions and charitable and religious endowments) the rule of decision in cases where the parties are
Muslims shall be Muslim Personal Law (Shariat). 50 (1844) 11 Cl & Fin 85, p 143. Also see. MN Rao and
Amita Dhanda , NS Bindra’s Interpretation of Statutes 435 (Lexis Nexis Butterworths, New Delhi, 10th
edn., 2007). 51 Shankar Dass v. Mahu Ram, AIR 1963 HP 32-33.
85
193752 that “.....the rule of decision shall be Muslim personal law”, admits indubitable conclusion
about the authority of Muslim personal law in itself in respect of matters enumerated in terms of
section 2 of the Act of 1937. Further, if legislature would have intended to enforce the Muslim Personal
law through the Act of 1937, it would have laid down, every detail relating to Muslim Personal law, like
the one which have been done in case of Dissolution of Muslim Marriage Act, 1939. Furthermore, object
and purpose of the Act of 193753 also leave no room for any doubt as to the authority of Muslim
Personal Law in itself. Notwithstanding the aforesaid observations, the majority ruling in particular
authored by Justice Nariman seems correct as it aims towards creating constitutional culture based on
the principles of equality, liberty and dignity of women. But it is equally important to argue at the
outset, is it necessary to confer statutory status on the subject in order to test its constitutionality as per
mandate of article 13 the Constitution? Though this is no more a res integra as per Narasu Appa Mali
ruling, but the opinion of C.J Kania54, necessarily provides an insight as far as judicial role in Sovereign
Socialist Secular Democratic Republic of India is concerned.
V. Summary of the Discussion In India under a secular set up, it is always a challenge for the state to
accommodate a vast diversities of religion affecting entire life of individuals and particularly when
religious freedom is accorded a fundamental protection. People professing different faiths, always
inclined to take recourse to their personal law in most of their matters on account of their deep rooted
religious identity; this certainly aggravates the challenge before the state. Therefore, the state is
required to take stringent steps consistent with constitutional norms in bringing social welfare and
reform. For state, citizen matters not their religious affiliations or associations. If state fails to do so, in a
way it is a denial of state duty to provide for well being of citizen.
Convincingly, it can very well be argued that, Courts in India, though put fetters on themselves in
analysing the constitutionality of uncodified personal law on the touchstone of fundamental
52 Infra note 49. 53 Infra note 48. 54 A.K Gopalan v. State of Madars, AIR 1950 SC 27. As per Kania C.J-
The inclusion of cl (1) and (2) of Art 13 in the Constitution of India appears to be a matter of abundance
caution. ………… the existence of Art 13 (1) and 13(2) in the Constitution of India, therefore is not
material for the decision of the question what fundamental right is given and to what extent it is
permitted to abridged by the Constitution itself.
86
rights, but in no way precluded from observing the role of state in bringing social reform and change in
matters concerning atrocious application of personal law resulting in denial of constitutional protection
of equality, liberty and dignity. Further, being the protector and guarantor of the rights of the people,
judiciary, can very well by progressive interpretation of the Constitution in itself become the crusader of
change. Recent ruling of the apex court on the issue of triple talaq certainly needs appreciation for
creating a constitutional culture in the country having multi religious identities under the banner of
secular state. Though majority of judges have succeeded in limiting the atrocious application of
personal law, but the matter has not yet concluded. Judicial approach in relation to uncodified personal
law still requires comprehensive analysis of article 13 of the Constitution, though courts have
consistently been relied upon Narasu Appa mali ruling to justify their position, but the progressive
society and constitutional values are still looking for convincing answer. Interestingly, judicial approach
about Constitution vis-a- vis uncodified personal law so far appears to be textual rather than progressive
and value based. If Constitution permits state to take measures for social welfare and reform, why the
same Constitution delimits the judiciary from testing the constitutionality of uncodified personal law,
this matter certainly requires deliberations and analysis. If it continues then in coming years,
Constitution may have judicial reasons but certainly it will not have prudent rationality and it will
severely affect the existence of Sovereign Socialist Secular Democratic Republic of India.
Supreme Court on Instant Triple Talaq:
In 1978, a Muslim woman, Shah Bano, filed a petition in court demanding

maintenance from her divorced husband which gave her divorced through talaq
provision.
Shah Bano filed a claim for maintenance for herself and her children under Section
123 of the Code of Criminal Procedure, 1973.
The Supreme Court has also declared that this practice is unconstitutional and not
protected by Article 25 which regards the freedom of religion.
Also, in December 2016, the Allahabad High Court had said that no personal law
board was above the constitution.
Important provisions of the Bill:
It claims that despite the court ruling, several instances have been reported.
It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a

Muslim man resulting in instant and irrevocable divorce.
Talaq-e-biddat refers to the practice under Muslim personal laws where

pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife
results in an instant and irrevocable divorce.
Making it an offence, the government says, will deter further resort to triple talaq, and
provide redress for women in the form of a subsistence allowance and custody of
children, besides getting the erring husband arrested.
The offence may be compounded by the Magistrate upon the request of the woman
(against whom talaq has been declared).
Compounding refers to the procedure where the two sides agree to stop legal
proceedings, and settle the dispute. The terms and conditions of the compounding of
the offence will be determined by the Magistrate.
However, the core question regarding the necessity to criminalise the practice of
talaq-e-biddat has not been convincingly answered.
However, the core question regarding the necessity to criminalise the practice of
talaq-e-biddat has not been convincingly answered:
 The Opposition parties argued that the proposed law could be misused to
harass Muslims and wanted it reviewed by a parliamentary panel.
 There is the practical question of how a man can provide a subsistence
allowance while he is imprisoned.
 Opposition described the passage of the bill as a “big jolt” to family laws in
India. A civil law has been changed into criminal law. This is a historic
mistake.
 It has been argued by the Bill’s proponents that dowry harassment and cruelty
towards wives are treated as criminal offences even while the marriage
subsists.
 The law now gives a police officer the power to arrest the offender without
requiring a warrant, alleged the Opposition.
 To check misuse, the government argued, the police takes cognisance only if
the complaint is filed by the aggrieved woman or any of her relation by blood
or marriage. The Bill also provides for bail by a magistrate but only after
hearing the aggrieved woman.
 The Bill does not provide the victimised woman any additional benefits in
terms of her rights in marriage and divorce.
 The aggrieved woman is entitled to demand a maintenance for her and her
dependent children under the Act.
Conclusion:
A milestone in the quest for gender justice; a moment of satisfaction for the entire
country.
The prime minister said this is an occasion to salute the remarkable courage of those
Muslim women who have suffered great wrongs due to the practice of triple talaq
and added that its abolition will contribute to women empowerment and give them
the dignity they deserve.
Despite the gains, gender equality does not permeate all aspects of civil law. This
legislation presents an opportunity to put in place a civil code that steeped in
equality across faiths and gender.
Way Ahead:
Having ensured a modicum of gender justice, the government should use this
moment to build on the gains to address the gender inequities that persist in civil
and personal laws across the board.
Building on the momentum for change, a demand that has come from within the
community, the government should ask the Law Commission to review all
personal/civil laws to ensure that these do not violate the Fundamental Rights
guaranteed to all citizens by the Constitution.
In doing so, paving the way for an honest national dialogue that would take the
nation towards a uniform civil code that is steeped in equality and democratic
values.3
RESEARCH METHODOLGY
Secondary data has been used in this research paper. The data has been assimilated from different
sources.
RESEARCH QUESTIONS _
1. To understand the concept of divorce under Muslim Law.
2. To know about the different modes of divorce under Muslim Law.
3. To consider the new position of women under Muslim Law.
4. To find the case laws related to divorce under Muslim Law.
MODES OF DIVORCE _
 A husband may divorce his wife by repudiating the marriage without giving any reason.
Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally
this done by talaaq. But he may also divorce by Ila, and Zihar which differ from talaaq only in form,
not in substance. A wife cannot divorce her husband of her own accord. She can divorce the husband
only when the husband has delegated such a right to her or under an agreement. Under an agreement
the wife may divorce her husband either by Khula or Mubarat. The Dissolution of Muslim Marriages
Act 1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce
decree passed by the order of the court. There are two categories of divorce under the Muslim law:
3
https://www.insightsonindia.com/2019/08/05/insights-into-editorial-beyond-talaq-on-muslim-divorce-bill/
1.) Extra judicial divorce, and
2.) Judicial divorce
 The category of extra judicial divorce can be further subdivided into three types, namely,
• By husband- Talaaq, Ila, and Zihar.

• By wife- Talaaq-i-Tafweez, Lian.
• By mutual agreement- Khula and Mubbarat.
CONDITIONS FOR A VALID TALAAQ _

1. Capacity: Every Muslim husband of sound mind, who has attained the age of puberty, is competent
to pronounce talaaq. It is not necessary for him to give any reason for his pronouncement. Talaaq by
a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then
talaaq pronounced by him during “lucid interval” is valid. The guardian cannot pronounce talaaq on
behalf of a minor husband. When insane husband has no guardian, the Qazi or a judge has the right
to dissolve the marriage in the interest of such a husband.
2. Free Consent: Except under Hanafi law, the consent of the husband in pronouncing talaaq must be a
free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue influence,
fraud and voluntary intoxication etc., is valid and dissolves the marriage.Involuntary intoxication:
Talaaq pronounced under forced or involuntary intoxication is void even under the Hanafi law.
3. Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered
by the husband or he may write a Talaaqnama. No specific formula or use of any particular word is
required to constitute a valid talaaq. Any expression which clearly indicates the husband’s desire to
break the marriage is sufficient. It need not be made in the presence of the witnesses. According to
Shias, talaaq, must be pronounced orally, except where the husband is unable to speak. If the
husband can speak but gives it in writing, the talaaq, is void under Shia law. Here talaaq must be
pronounced in the presence of two witnesses.
4. Express words: The words of talaaq must clearly indicate the husband’s intention to dissolve the
marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to
prove that the husband clearly intends to dissolve the marriage.
DIVORCE BY HUSBAND_
1. Express Talaaq: When the husband exercises his right to pronounce divorce, technically this is
known as talaaq. The absolute power of a Muslim husband of divorcing his wife unilaterally,
without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and
without recourse to the court, and even in the absence of the wife, is recognized in modern India. All
that is necessary is that the husband should pronounce talaaq; how he does it, when he does it, or in
what he does it is not very essential. When clear and unequivocal words, such as “I have divorced
thee” are uttered, the divorce is express. The express talaaq, falls into two categories:
a.) Talaaq-i-sunnat, b.) Talaaq-i-biddat.
a.) Talaaq-i-sunnat has two forms:
i. Talaaq-i-ahasan (Most approved):- The ahasan talaaq consists of a single pronouncement of

divorce made in the period of tuhr (purity, between two menstruations), or at any time, if the wife is
free from menstruation, followed by abstinence from sexual intercourse during the period of iddat.
The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce
and does not apply to talaaq in writing. Similarly, this requirement is not applicable when the wife
has passed the age of menstruation or the parties have been away from each other for a long time, or
when the marriage has not been consummated. The advantage of this form is that divorce can
revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can
be prevented. The revocation may effected expressly or impliedly. Thus, if before the completion of
iddat, the husband resumes cohabitation with his wife or says I have retained thee” the divorce is
revoked. Resumption of sexual intercourse before the completion of period of iddat also results in
the revocation of divorce.
ii. Talaaq-i-hasan (Less approved):- In this the husband is required to pronounce the formula of
talaaq three time during three successive tuhrs. If the wife has crossed the age of menstruation, the
pronouncement of it may be made after the interval of a month or thirty days between the successive
pronouncements. When the last pronouncement is made, the talaaq, becomes final and irrevocable. It
is necessary that each of the three pronouncements should be made at a time when no intercourse has
taken place during the period of tuhr. Example: W, a wife, is having her period of purity and no
sexual intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is
the first pronouncement by express words. Then again, when she enters the next period of purity,
and before he indulges in sexual intercourse, he makes the second pronouncement. He again revokes
it. Again when the wife enters her third period of purity and before any intercourse takes place H
pronounces the third pronouncement. The moment H makes this third pronouncement, the marriage
stands dissolved irrevocably, irrespective of iddat.
b.) Talaaq-i-Biddat: It came into vogue during the second century of Islam. It has two forms:
(i) the triple declaration of talaaq made in a period of purity, either in one sentence or in three,
(ii) the other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr
or even otherwise. This type of talaaq is not recognized by the Shias. This form of divorce is
condemned. It is considered heretical, because of its irrevocability.
2. Ila: Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila
and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual
intercourse with his wife. Followed by this oath, there is no consummation for a period of four
months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband
resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. Under
Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the court of law. After
the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no
cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal
rights against the husband.
3. Zihar: In this mode the husband compares his wife with a woman within his prohibited relationship
e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister.
After such a comparison the husband does not cohabit with his wife for a period of four months.
Upon the expiry of the said period, Zihar is complete. After the expiry of fourth month the wife has
following rights:
(i) She may go to the court to get a decree of judicial divorce.

(ii) She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife
cannot seek judicial divorce. It can be revoked if:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food to at least sixty people, or,
(iii) He frees a slave.
According to Shia law Zihar must be performed in the presence of two witnesses.
DIVORCE BY MUTUAL AGREEMENT_

 Khula and Mubarat: They are two forms of divorce by mutual consent but in either of them, the
wife has to part with her dower or a part of some other property. The word khula, in its original
sense means “to draw” or “dig up” or “to take off” such as taking off one’s clothes or garments. It is
said that the spouses are like clothes to each other and when they take khula, each takes off his or her
clothes, i.e., they get rid of each other.
 In law it is said is said to signify an agreement between the spouses for dissolving a union in lieu of
compensation paid by the wife to her husband out of her property. Although consideration for Khula
is essential, the actual release of the dower or delivery of property constituting the consideration is
not a condition precedent for the validity of the khula. Once the husband gives his consent, it results
in an irrevocable divorce. The husband has no power of cancelling the ‘khul’ on the ground that the
consideration has not been paid. The consideration can be anything, usually it is mahr, the whole or
part of it. But it may be any property though not illusory.
 In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may
emanate from either side. In mubarat both, the husband and the wife, are happy to get rid of each
other . Among the Sunnis, when the parties to marriage enter into a mubarat, all mutual rights and
obligations come to an end. The Shia law is stringent though. It requires that both the parties must
bonafide find the marital relationship to be irksome and cumbersome. Intention to dissolve the
marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other
requirements are the same as in khula and the wife must undergo the period of iddat and in both the
divorce is essentially an act of the parties, and no intervention by the court is required.
DIVORCE BY WIFE_
 The divorce by wife can be categorized under three categories:
(i) Talaaq-i-tafweez.
(ii) Lian.
(iii) By Dissolution of Muslim Marriages Act 1939.
(i) Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The
Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other
person. He may delegate the power absolutely or conditionally, temporarily or permanently. A
permanent delegation of power is revocable but a temporary delegation of power is not. This
delegation must be made distinctly in favour of the person to whom the power is delegated, and the
purpose of delegation must be clearly stated. As Faizee observes, “this form of delegated divorce is
perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the
intervention of any court and is now beginning to be fairly common in India”.
This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v.
Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay
certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the
house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s
house without paying the amount. The wife exercised the right and divorced herself. It was held that
it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be
made even in the post marriage agreements. Thus where under an agreement it is stipulated that in
the event of the husband failing to pay her maintenance or taking a second wife, the will have a right
of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable
and not against public policy .
(ii) Lian: If the husband levels false charges of unchastity or adultery against his wife, then this amounts
to character assassination and the wife has got the right to ask for divorce on these grounds. Such a
mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery
made by the husband which, if false, would entitle the wife to get the wife to get the decree of
divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour
and the husband hits back an allegation of infidelity against her, then what the husband says in
response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery
and no divorce is to be granted under Lian. This was held in the case of Nurjahan v. Kazim Ali by
the Calcutta High Court.
(iii) Dissolution of Muslim Marriages Act 1939: Section 2 of the Dissolution of Muslim Marriages
Act, 1939 runs hereunder:-
A woman married under Muslim law shall be entitled to obtain a decree for divorce for the
dissolution of her marriage on any one or more of the following grounds, namely:-
1. That the whereabouts of the husband have not been known for a period of 4 years.
2. That the husband has neglected or has failed to provide for her maintenance for a period of 2 years.
3. That the husband has been sentenced to imprisonment for a period of seven years or upwards.
4. That the husband has failed to fulfill his marital obligation for a period of three years.
5. That the husband has been insane for two years or is suffering from leprosy or a virulent form of
venereal disease.
6. That the husband was impotent at the time of marriage and continues to be so.
7. That she, having been given in marriage by her father or other guardian before she attained the age
of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the
marriage has not been consummated;
8. That the husband treats her with cruelty, that is to say-
(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct
does not amount to physical illtreatment, or
(b) Associates with women of ill-repute or leads an infamous life, or
(c) Attempts to force her to lead an immoral life, or
(d) Disposes of her property or prevents her exercising her legal rights over it, or
(e) Obstructs her in the observance of her religious profession or practice, or
(f) If he has more than one wives, does not treat her equitably in accordance with the injunctions of
the Holy Quran.
IRRITRIEVABLE BREAKDOWN_
In Muslim law of modern India, there are two breakdown grounds for divorce:
(a) non-payment of maintenance by the husband even if the failure has resulted due to the conduct of
the wife,
(b) where there is total irreconcilability between the spouses.
PRIOR POSITION OF WOMEN UNDER MUSLIM LAW _
 Islam with its realistic and practical outlook on all human affairs recognizes 'Divorce', but only as a
necessary evil, inevitable in certain circumstances. Divorce was not completed in Islam unless the
husband has pronounced it in three separate sentences as "I divorce thee, I divorce thee, I divorce
thee". The pronouncing of triple talaq has been criticized by lot of legal luminaries. The problem of
holding three pronouncements of 'Talaq' together as final irrevocable divorce is not so simple. It
leads to many socio-economic problems. Among the rules and regulations of Muslim Personal Law,
which have become the targets of adverse criticism in the present time the topic of 'Triple Divorce'
stands uppermost. There has been a good deal of debate about the law of divorce. Judges and authors
have expressed their uneasiness in the matter, such as Ammer Ali, Fyzee, Baillie, Fitzgerland, Mulla,
Tyabji, Abdul Raheem and many others.
 Somehow or other it has come to be believed that divorce does not occurs on the first
pronouncement of the word and if husband does not retract it within the specified period, it becomes
final and irrevocable.4 But in a case Khadisa v. Mohammad,5 the Court held that the remarriage with
the same husband of the woman thrice divorced as irregular but not void.
 Instances are as in Sara Bai v. Rabia bai,6 Bombay High Court recognized 'triple talaq' as irrevocable
divorce. Again in the Privy Council case Mst. Annesa Khatoon v. Rasheed Ahmad, 7 the decision
appear to be harsh. In this case Privy Council held agreeing with the conclusion of the subordinate
judges of the lower Court, that the pronouncement on the 'Triple Divorce' taken by the respondent
constituted an immediately effective divorce. The learned judges of Privy Council pointed out the
validity and effectiveness of an irrevocable divorce in the biddat form would not be affected by the
husband's intention. In Ahmad Giri v. Mst. Begha,8 Jammu and Kashmir High Court held that 'Triple
divorce' becomes effective and irrevocable the moment it is given. Till the decision of Khadisa v.
Mohammad,9 'Triple Divorce' was recognized as an irrevocable divorce if pronounced in single
breath. The learned Judge Narayana Pillai observed that, "a remarriage without conducting an
intermediate marriage is only an irregularity and therefore does not render the marriage as void."
CURRENT STATUTS OF WOMEN IN MUSLIM LAW
The Supreme Court in Shayara Bano versus Union of India and Others10 declared triple talaq as
unconstitutional. Through this, an armament has been provided to the women to guard
4
Furqan Ahmad, Divorce in Mohammedan Law, 98, Deep & Deep Publications, New Delhi.
5
(1979)K.L.T. 878.
6
I.L.R (1905)30Bom.537.
7
AIR(1932)PC25.
8
AIR(1955)J&K1
9
(1979) KLT 878
10
Writ Petition (C) No. 118 of 2016
themselves against this barbaric law. The court lamented missing the opportunity to address the
issue of gender equality in both the Shah Bano and Daniel Latifi cases. In the Shah Bano case,
the court essentially impelled the legislature (government) to frame the Uniform Civil Code. In
the Daniel Latifi case, it kept up the benefit of Muslim women to maintenance till re-marriage.
The Supreme Court has in a majority judgment declared triple talaq to be unconstitutional. Now
on the same point other provisions like polygamy can be tested on the ground of its being unfair
and arbitrary. Frankly my understanding is that like triple talaq, the uncontrolled right to
polygamy similarly finds no sanction in the Quran. It was an Arab practice and it isn't a part of
Islam. This judgment has opened the door, it is the begin of a voyage not the end and now the
women won't stop at anything not as much as gender parity, that is, equality of status as
guaranteed by the Constitution of India.
ABSTRACT Today, the issues of women rights in muslim personal law is highly controversial. Specially,
muslim women rights relating to triple talaq, inheritance, maintenance has got much attention
nowadays. A muslim man can divorce his wife by prouncing three times talaq. When husband clearly
mentions it is called as expres After that husband and wife cannot be together back until wife marries
someone else. The legal decisions are based on the norms mentioned in quaran therefore certain
anomalies need to be eradicated by giving true essence of holy quaran for the benefit of muslim
women’s right. There is three types of talaq namely, unlike other religion marriage is viewed as
sacrament but, under, muslim law it is civil and social contract. Talaq-ul-sunnat sanctioned by prophet is
sub into : Talaq-e-ehsan, Talaq hasan, Talaq current debate on triple talaq, centred on the Sharaya Bano
and several other petitions which considers no aspect of Islamic personal laws which amounts to violate
the spirit of constitution. The whole triple talaq has become a battleground for the culture vs social
debate. In this paper the author deals with the question of triple talaq in the light of the recent petition
filed in the Supreme Court for declaring such talaq invalid. The author argues that there is an already
existing legal precedent established by the apex court with respect triple talaq which should be followed
instead of resorting in aggressive approach which may become dominant to muslim women themselves.
This research paper analyze to attempt the on-going implications on triple talaq, muslim personal law
and solutions to empower muslim women.
@ IJTSRD | Available Online @ www.ijtsrd.com | Volume – 2 | Issue – 5 | Jul-Aug
ISSN No: 2456 - 6470 | www.ijtsrd.com | Volume
International Journal of Trend in Scientific Research and Development (IJTSRD) International Open
Access Journal
n the Effects of Triple Talaq, the Plig its Impact on the Society Muslim Community
Simran Chhallani B.A., L.L.B., Indore Institute of Law, Indore, Madhya Pradesh, India
Today, the issues of women rights in muslim personal highly controversial. Specially, muslim women
rights relating to triple talaq, inheritance, maintenance has got much attention nowadays. A muslim
man can times talaq. When husband clearly mentions it is called as express talaq. After that husband
and wife cannot be together back until wife marries someone else. The legal decisions are based on the
norms mentioned in quaran therefore, certain anomalies need to be eradicated by giving true nefit of
muslim women’s right. There is three types of talaq namely, unlike other religion marriage is viewed as
sacrament muslim law it is civil and social contract. sanctioned by prophet is sub-divided Talaq-e-biddat.
The current debate on triple talaq, centred on the Sharaya several other petitions which considers no
aspect of Islamic personal laws which amounts to violate the spirit of constitution. The whole triple a
battleground for the culture vs social debate. In this paper the author deals with the question of triple
talaq in the light of the recent petition filed in the Supreme Court for declaring such talaq invalid. The
author argues that there is an xisting legal precedent established by the apex court with respect triple
talaq which should be followed instead of resorting in aggressive approach become dominant to muslim
women This research paper analyze to attempt the muslim personal to empower muslim women.
INTRODUCTION
The Personal law in India is a law for people of different religion and applicable to the religion of the
person. For many decades Muslim women are fighting for gender equality in Islamic law that govern
right related to marriage, divorce and property rights. However All- India Muslim Personal Law Board is
one of the influential body in Muslim community. Many times this body rejected the proposal to c the
Muslim Personal Law as they believe it will infringe their basic principles of Islam. After the 1986 Shah
Bano Case, the enactment of Muslim Women (protection of Rights and Divorce ) quaran had no
provision for talaq of this kin cannot give talaq in one sitting period of three months or two menstrual
cycles. And only when the couple cannot reconcile in the intervening period that the talalq becomes
valid after the third and final pronouncement. is pregnant at that time then also the talaq is void.
Origin of triple talaq
Then why is the instant triple talaq, a common occurrence among the Muslims in India? “There was no
provision for instant talaq in the Quaran when Sharia laws began to be codified and four schools of
jurisprudence emerged, whose school of thought is followed in India, gave the talaq his seal of approval.
“
MEANING OF TALAQ Talaq in its original sense means repudiation or rejection but under Muslim law, it
means a release
2018 Page: 908
6470 | www.ijtsrd.com | Volume - 2 | Issue – 5
Scientific (IJTSRD) International Open Access Journal
he Plight of Women, its Impact on the Society Muslim Community
The Personal law in India is a law for people of different religion and applicable to the religion of the
person. For many decades Muslim women are for gender equality in Islamic law that govern right
related to marriage, divorce and property rights. India Muslim Personal Law Board is one of the
influential body in Muslim community. Many times this body rejected the proposal to change the
Muslim Personal Law as they believe it will infringe their basic principles of Islam. After the 1986 the
enactment of Muslim Women (protection of Rights and Divorce ) Act. And also the quaran had no
provision for talaq of this kind. You cannot give talaq in one sitting. It has to be over a period of three
months or two menstrual cycles. And only when the couple cannot reconcile in the intervening period
that the talalq becomes valid after third and final pronouncement. Also, if the women is pregnant at that
time then also the talaq is void.
Then why is the instant triple talaq, a common occurrence among the Muslims in India? “There was no
provision for instant talaq in the Quaran. But later aws began to be codified and four schools of
jurisprudence emerged, Imam Hanifa, whose school of thought is followed in India, gave the
Talaq in its original sense means repudiation or Muslim law, it means a release
International Journal of Trend in Scientific Research and Development (IJTSRD) ISSN: 2456-6470
@ IJTSRD | Available Online @ www.ijtsrd.com | Volume – 2 | Issue – 5 | Jul-Aug 2018 Page: 909
from the marriage tie, immediately or eventually. Muslim husband who may repudiate his wife at his
own pleasure with or without cause. He can pronounce the talaq at any time. It is necessary for him to
obtain the prior approval of his wife for the dissolution of his marriage. One view is that if the husband
was forcibly made drunk, and has pronounced talaq, such a talaq will not take effect. A talaq
pronounced by a person, in a state of intoxication or by one laboring under a temporary stupor fromm
the use of some practice, or any other cause is invalid. Any Sunnni Mohammedan of sound mind who
has attained the age of majority may divorce his wife whenever he likes by pronouncing talaq without
assigning any cause. The husband may give talaq by mere words without any talaqnama that is Oral
talaq. A talalq maybe in writing that is called talaqnama.
Effects of triple talaq on Muslim women:
Imagine living with the mental insecurity that years of your marital alliance can be ended just by
utterance of three words. The recent practices of talaq being uttered thrice over telephone, e-mail or
letters and text messages. This innovative mode of divorce is widespread use by the Muslim men
without giving any plausible explaination to the wives. As a result divorced wives are left destitute. The
miserable plight of Muslim women are discriminated and shunned by caprices of personal laws. The
struggle a Muslim women has to face in order to claim maintenance after divorce especially after the
enactment of the Muslim Women’s Act 1986. The number of impoverished Muslim women has risen as
a result of a rise in oral divorces in recent times. Many muslim women are uneducated and cannot
provide for themselves, thus triple talaq only serves to magnify their hardship. Living as divorced women
in a highly patriarchial and judgemental society like India is very difficult.While it is important to respect
the religious and cultural minorities in diverse and secular country like India, it is also critical to ensure
that such practices do not abuse basic human rights. Triple talaq diminishes the ability of Indian Muslim
Women to live with dignity. Such practices instills fear and anxiety in minds of countless Muslim women.
Since, triple talaq has been abolished in 22 Muslim majority countries, it is difficult to see the need to
hold on to it. Effective reforms are necessary and much awaited in the territory of Muslim personal law.
What is Instant Triple Talaq Bill: The Muslim Women(Protection of Rights on Marriage) bill,2017?
The Supreme court has already declared this instant talaq, as unconstitutional on August 22,
2017(Shayara Bano vs Union of India) this bill is considered to be historical verdict of Supreme court by
making it a punishable offence. It makes the pronouncement of “talaq-e-biddat” void and illegal.
According to clause 3of the bill,” any pronouncement of talaq by aperson upon his wife, by words, either
spoken or written or in any electronic form shall be void and illegal”. In August, this year the Supreme
Court had found the practice of muslim male divorcing his wife by pronouncing talaq three times, to be
illegal and un- Islamic. The bill is to protect the rights of married women and to prohibit divorce by
pronouncing talaq by their husbands. This Act shall come into force on such date as the Central
Government may, by notification in the official gazette. Titled, the Muslim Women (Protection of Rights
on Marriage) 2017, it reportedly makes instant triple talaq, a cognizable and non- bailable offence,
punishable with imprisonment for three years. The law is about justice and respect for women and is
not about any religion or community. The proposed law would only be applicable on instant triple talaq
and give power to the victim to approach a magistrate seeking allowance fo herself and minor children
and she retains the custody of minor children. And this is the most ambiguous part of the bill, upon
which the government was questioned by opposition in the parliament.1
Should triple talaq be abolished?
Traces of triple talaq can be found dated back to 1932 in Indian Judiciary from Anisa Khatun’s Case.
Finally after great struggle, with the advent of Shayara bano’s PIL with 5 other women. “The Supreme
Court bench of five after going through a 397 paged ruling, declared triple talaq as unconstitutional with
3:2 majority. A study of 2011 census reveals that for every divorced Muslim women, which depicts the
backwardness and discrimination against muslim women. “Given that triple talaq was realized to be
unjust and discriminatory against women, many countries including major muslim countries like
Pakistan, Iran, Jordan, UAE, Turkey, Egypt, etc have already banned this unilateral form of divorce. The
banning of triple talaq turned out to be so difficult and
controversial in India due to two reasons, firstly, the muslim personal law. It made the Shariat board as
functional law board for muslim’s personal matters and prevents state interference. Secondly the article
25 of the Indian constitution gives each the right to freely practice their religion, which empowers the
personal board and exempts them from falling under uniform civil code. However article 14 is significant
is balancing the act, making a good case for judicial activism.
What will be the impact of triple talaq bill in India?
The bill which is made to ensure justice to women, ridding them of the unilateral divorce, seems to be
getting politicized both by government and opposition. Whatever might be the political agenda, the fact
that triple talaq bill as a whole remains as a great success to the secular India pacing way for a uniform
civil code free from patriarchial, orthodoxly and superstitious beliefs and practices. However, no law,
unless internalized by society can work successfully, as is evident by cases like dowry-deaths, caste
practices, for which many laws re formulated, yet the desired result is far from materializing. The triple
talaq bill, though a small but historical step,is a welcome move towards gender justice in country.
What are the kinds of talaq under Muslim law in India?
1 Talaq-ul- Sunnat It may be further sub-divided into : Talaq ahsan, Talaq hasan.
2. Talaq-ul-Bidaat Talaq-ul Sunnat is regarded to be approved form of talaq. It is based on prophet’s

tradition.
Talaq Ahsan This is the most proper form of repudiation of marriage. To be in ahsan form, the
proceedings of divorce must satisfy certain conditions. These conditions are as follows:- The husband
must pronounce the formula of divorce in a single sentence. The pronouncement of divorce must be in
a state of purity; He must abstain from intercourse for the period of idaat. Single pronouncement of
the civil words of talaq and sufficient opportunity to the spouses for reconciliation, are the two reasons
for calling this form as the most “proper’ form of talaq.
Talaq Hasan - This talaq is also regarded to be the proper and approved form of talaq.In this form too,
there is a provision for revocation. The formalities required under this form are as under:- The
husband has to make single declaration of talaq in a period of “Tuhr”. In the next tuhr there is another
single pronouncement for the second time. The first and second pronouncements may be revoked by
the husband. If he does so, either expressly or by resuming conjugal relations, the word of talaq become
ineffective as if no talaq was made at all. But, if no revocation is made after the first and second
declaration then lastly the husband is to make third period of purity. As soon as the third declaration is
made, the talaq becomes irrevocable dissolves and the wife has to observe the required iddat.
Talaq–ul-biddat The talaq–ul-biddat has its origin in the second century of the Islamic-era. According to
Islamic scholar this mode of talaq was introduced by the omayad kings.
It is a disapproved mode of divorce. A peculiar feature of this talaq is that it becomes effective as soon
as the words are pronounced and there is no possibility of reconciliation between the parties. 2
Judicial trends: The case of Shayara Bano The current debate on triple talaq is centred on the Sharaya
Bano and several batches of petitions as well as Supreme Court own suo moto PIL to consider whether
certain aspects of Islamic personal laws amount to gender discrimination and hence violates the
constitution. The petition hence challenged the validity on triple talaq on the touchstone of article 14,
article 15, article 21, article 25 of the constitution. It states: it is submitted that religious officers and
priests like imams, maulvis, etc. who propagate, support the practices like talaq-e-bidat, nikaha halala,
and polygamy are grossly misusing their position, influence and power to subject muslim women which
treats them as chattel, thereby violating their fundamental rights enshrined in article 14,15,21,25 of the
constitution.
2www.shareyouressays.com www.dnaindia.com
The best example of confrontational politics leading to actual victimization of the woman in question
was the Shah Bano Case. The case pertained to maintenance to the muslim wife after talaq had been
pronounced. Shayara bano, a 35-year old woman, from the state of Uttarakhand, filed a petition in the
Supreme Court, asking for talaq to be declared unconstitutional. Her husband, a real estate agent
named Rizwan Ahmed,had divorced her by talaq the previous year. Her petition attracted other parties
and groups that have been demanding a ban on the talaq practice. 3
Conclusion Nikah as described in the holy quaran is sacred bond between man and women and last for
the remaining part of their lives. Before enforcing divorce the couple is required to stay separately to
feel the pain of Zudai under the monitoring of Qazi. Divorce is the last undesirable step in the Quaran
when all the effort s for unification go in vein after long presence. Neverthless, the custom of triple talaq
by a husband to divorce his wife, though not sanctioned in quaran, has been vogue since th enactment
of Muslim Personal law Act in India.Whatever, the fact may be muslim men are taking advantage of
unlimited freedom of power in terminating marriage through triple talaq. Although, some efforts were
made to eradicate triple
3 http://ili.ac.in/pdf/paper517.pdf
talaq in India. It is therefore suggested that the right course is to go back to Quaran and sunnah ans seek
guidance from them. Divorce to be legal and effective must strictly follow the rules of Shariah. Any other
form of divorce which is in conflict with quaran must be declared a crime. The modern legislation
existed in Africa and Asia, under which no marriage could be dissolved without the intervention of court.
But it is realistic enough to take recourse to law where persuation fails to save the pious purpose.
REFERENCES 1. Prof I.A. Khan, MOHAMMEDAN LAW 2. All India Muslim Personal Board 3. Muslim
Women( Protection of Rights On Marriage) Bill,2017 4. Shayara Bano vs Union Of India And Others 5.
http://www.shareyouressays.com/knowledge/what -are-the-kinds-of-talaq-under-muslim-law-
inindia/117523 6. Pragti Ghosh, What are the kinds of talaq under muslim law in India?
Most strikingly, however, the survey found that the incidence of the so-called “oral
triple talaq” (where ‘talaq’ is uttered thrice at one go, without any witnesses or
record) among the 331 cases was just 1 — or a mere 0.3%. (Representational
image)
A day before the Supreme Court began hearing the legal challenge to triple
talaq, a Delhi-based institute reported the results of its survey, showing the
incidence of this form of divorce among Muslims was less than even 1 in
100.
Advertising
The Centre for Research and Debates in Development Policy (CRDDP)
surveyed 20,671 individuals — 16,860 men and 3,811 women — across
India between March and May this year. The respondents in the online
survey were picked from a larger data base of about 1,00,000 verified
respondents that CRDDP already had.
The survey was led by Dr Abu Saleh Shariff, former Chief Economist of
the National Council of Applied Economic Research (NCAER), and best
known as Member Secretary of the Sachar Committee, which in 2006
submitted a report on the social, educational and economic backwardness
and deprivation status of Muslims.
Of the 331 talaqs (divorces) reported by both women and men respondents in
Dr Shariff’s survey, just about a quarter had occurred through the
intervention of religious institutions such as the qazi and dar-ul-kaza.
Most strikingly, however, the survey found that the incidence of the so-called
“oral triple talaq” (where ‘talaq’ is uttered thrice at one go, without any
witnesses or record) among the 331 cases was just 1 — or a mere 0.3%.
Dr Shariff told The Indian Express, “The survey has found one reporting of
triple talaq in one sitting out of 331 total talaqs and khulas. This (triple talaq)
is an evil and a bad practice, but its incidents are minuscule, it almost does
not exist. The sample set here is of mostly of those with some education, but
that approximates national educational levels.”
Dr Shariff clarified that “each respondent (in the survey) had been registered
by due process”.
He added, “The most important thing is the security of women who have
gone through talaq, not only triple talaq, but what happens after the divorce to
them. We believe that there is a due process followed by the community and
also, women find it easy to get remarried. The court must take note of this
process.”
Arguments against triple talaq

 It goes against the rights of equality and women’s empowerment. It propagates the dominance of
men over women.
 According to a study, 92% of Muslim women in India wanted the triple talaq to be banned.
 It gave men the right to arbitrarily divorce their wives without any valid reason.
 New-age technology has given birth to new modes of triple talaq such as through skype, text
messages and email.
 Many Islamic countries have outlawed this practice including Bangladesh, Pakistan and
Indonesia. There is no reason for a democratic and secular India to continue this lopsided
practice.
 It goes against the constitutional principles of gender equality, secularism, right to life of dignity,
etc. It goes against Article 14 (Right to Equality) and Article 15(1) which states that there shall be
no discrimination against any citizen on the basis of gender, race, etc. and this kind of talaq is
biased against the interests of women.
 The constitution of the country says that it shall strive to bring a uniform civil code for the entire
country. Doing away with triple talaq will definitely be a step closer to the constitution-makers’
dream of having a uniform civil code for all citizens.
 However, the National Commission of Women says that this matter cannot be linked to uniform
civil code. Nevertheless, it should be banned in order to protect the interests of Muslim women.
 The Supreme Court has also declared that this practice is unconstitutional and not protected by
Article 25 which regards the freedom of religion. Also in December 2016, the Allahabad High
Court had said that no personal law board was above the constitution.
 Experts also opine that only the essential or integral features and aspects of a religion are
protected by the Constitution. Triple talaq was not an integral feature of Islam.
Challenges in banning triple talaq

 Religious groups infer the banning of a traditional practice sanctified by Sharia as interfering in
the religious aspects of minorities.
 The courts should decide two things basically:
 Whether personal law can be subject to the constitution or not
 How to view the relationship between triple talaq and Muslim personal law
Past rulings:
 In the Shah Bano case in 1985, the SC granted Shah Bano, a 62-year old woman the right to
alimony from her husband.
 But in 1986, the government passed the Muslim Women (Protection of Rights on Divorce) Act
which diluted the positive impact created by the Shah Bano case.
 In 2001, in the Danial Latifi & Anr versus Union of India case, the SC upheld the validity of the
Shah Bano judgement.
 In August 2017, a five-judge bench of the SC declared the triple talaq as unconstitutional in a
majority 3:2 judgement. This was the culmination of a petition filed by Shayara Bano, whose
husband of 15 years had divorced her through a letter where he pronounced talaq three times, to
declare the divorce as void.
The latest ruling is truly a watershed moment in women empowerment movement in India. The
court has given progressive thoughts enshrined in the Constitution precedence over personal law
in society.
".# per!ent Muslims and $%.& 'indus are polygamous
".() Muslims and #.) 'indus, per *,%%% women, are
divor!ed+separated
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Muslim polygamists

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PART I

 The primary objective of the study is to make a critical analysis of

WHAT IS TRIPLE TALAQ?

There are two major forms of Talaq:-

 Talaq-ul-Sunnat may be pronounced either in Ahsan or in the Hasan form:-

B. Talaq Hasan (Proper):

Impact on Indian society

Connecting the dots:

Law related to Triple Talaq

· The Muslim Women (Protection of Rights on Marriage) Bill, 2017

· The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018

· The Muslim Women (Protection of Rights on Marriage) Bill, 2018

· The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019

· The Muslim Women (Protection of Rights on Marriage) Act, 20192

Amit Raj Agrawal

I. Introduction ........................................................................... II. Constitutional Mandate over freedom

ILI Law Review Summer Issue 2018

ILI Law Review Summer Issue 2018

ILI Law Review Summer Issue 2018

Religion is a matter of faith with individual or communities and it is not necessary

ILI Law Review Summer Issue 2018

ILI Law Review Summer Issue 2018

ILI Law Review Summer Issue 2018

ILI Law Review Summer Issue 2018

ILI Law Review Summer Issue 2018

ILI Law Review Summer Issue 2018

ILI Law Review Summer Issue 2018

ILI Law Review Summer Issue 2018

ILI Law Review Summer Issue 2018

Supreme Court on Instant Triple Talaq:

In 1978, a Muslim woman, Shah Bano, filed a petition in court demanding

Important provisions of the Bill:

It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a

Talaq-e-biddat refers to the practice under Muslim personal laws where

1. To understand the concept of divorce under Muslim Law.

2. To know about the different modes of divorce under Muslim Law.

3. To consider the new position of women under Muslim Law.

4. To find the case laws related to divorce under Muslim Law.

• By husband- Talaaq, Ila, and Zihar.

CONDITIONS FOR A VALID TALAAQ _

a.) Talaaq-i-sunnat, b.) Talaaq-i-biddat.

a.) Talaaq-i-sunnat has two forms:

i. Talaaq-i-ahasan (Most approved):- The ahasan talaaq consists of a single pronouncement of

(i) She may go to the court to get a decree of judicial divorce.

DIVORCE BY MUTUAL AGREEMENT_

8. That the husband treats her with cruelty, that is to say-

PRIOR POSITION OF WOMEN UNDER MUSLIM LAW _

CURRENT STATUTS OF WOMEN IN MUSLIM LAW

ISSN No: 2456 - 6470 | www.ijtsrd.com | Volume

Origin of triple talaq

2018 Page: 908

6470 | www.ijtsrd.com | Volume - 2 | Issue – 5

Scientific (IJTSRD) International Open Access Journal

he Plight of Women, its Impact on the Society Muslim Community

Effects of triple talaq on Muslim women:

Should triple talaq be abolished?

What will be the impact of triple talaq bill in India?

What are the kinds of talaq under Muslim law in India?

2. Talaq-ul-Bidaat Talaq-ul Sunnat is regarded to be approved form of talaq. It is based on prophet’s

Arguments against triple talaq

Challenges in banning triple talaq

".() Muslims and #.) 'indus, per *,%%% women, are

Malegaon, a !ity with " la h Muslims, only %.*% -

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