A
PROJECT WORK ON
VALIDITY OF TRIPLE TALAQ IN PRESENT SENERIO
SUBMITTED TO:-
MISS. MAHIMA (FACULTY FAMILY LAW)
ROLL NO.88
SEMESTER – 2(BA.L.L.B HONS.)
SUBMITTED BY-NEELAM THAKUR
DATE OF SUBMISSION -19-09-2016
HIDAYATULLAH NATIONAL LAW UNIVERSITY
NEW RAIPUR- 493661, (C.G.)
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TABLE OF CONTENT
1. ACKNOWLEDGEMENT.....................................................3
2. RESEARCH METHODOLOGY............................................4
3. OBJECTIVES.......................................................................5
4. INTRODUCTION.................................................................6
5. CHAPTER 1
6. CHAPTER 2
7. CONCLUSION....................................................................17
8. BIBLIOGRAPHY.................................................................18
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ACKNOWLEDGEMENTS
First & foremost, I take this opportunity to thank Miss. Eritriya Roy, Faculty Economics,
HNLU for allotting me this challenging topic to work on. She has been very kind in
providing inputs for this work, by way of suggestions and providing me resource of his vast
knowledge of the subject which helped me to look at the topic in its very broad sense also to
look at some of the very narrow concepts by expertise view.
I would also like to thank my dear colleagues and friends in the University, who have
helped me with ideas about this work and also a source for constant motivation and hence
they were a guiding force to me in making of this project. Last, but not the least I thank the
University Administration for equipping the University with such good library and IT lab.
My special thank to library staff and IT staff for equipping me with the necessary books and
data from the website.
Neelam Thakur
Roll No.88
SEMESTER- 2
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RESEARCH METHODOLOGY
This project is descriptive in nature it uses descriptive language for the explanation of
different topics discussed in this project. Also the issues raised in this project are explained in
a descriptive language.
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INTRODUCTION
“The relationship between husband and wife is always very deep but delicate. Trust is the
hallmark of maintaining relationship between husband & wife.”1 1 K Ayyanar vs P.
Muniammal 2012-5-LW 30; Alop Bai v. Ramphal AIR 1962 MP 211 Family is an integral
part of human life. In a country like India where spirituality lives in air, religion and beliefs
are very sensitive issues. When India gained independence, the political leadership and the
framers of the constitution took note of the impeccable diversity of Indian culture, and they
deliberated on a framework that would provide for a unified but culturally diverse nation,
with harmonization of personal laws. The distinct personal laws that govern the major
religious groups are a major aspect of Indian multiculturalism and secularism, and support
specific gendered rights in family life. . The history of all matrimonial legislation will show
that at the outset conservative attitudes influenced the grounds on which separation or divorce
could be granted. Over the decades, a more liberal attitude has been adopted, fostered by
recognition of the need for the individual happiness of the adult parties directly involved. In
Muslim Community this liberal approach was from the very inset of the religious prologue. It
emphasized on individual freedom and provided for an honorable exit route to end painful
relationships through the introduction of TALAQ (or divorce). In a country like India where
Talaq is usually associated with an uncalled for social taboo, dissolution of marriage must be
on reasonable grounds and considering the socio-economic position of parties. This paper
talks about a peculiar customary practice of triple talaq where men enjoy unilateral right to
pronounce divorce to women without any chance of reconciliation or arbitration. All though
there are clear Qur’anic injunctions to the contrary, immediate triple divorce is permitted,
destroying marital life in one breath. The lives of Muslim women cannot be governed by
archaic practices like triple talaq. Muslim women should be governed by laws that treat them
as equal citizens of democratic India. Following case studies give us an insight of the misery
and trauma which a women faces when she is suddenly thrown to a world of socioeconomic
instability when her husband pronounces unilateral, irrrevocable Triple Talaq at his whims
and fancies
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CHAPTER - 1
CASE STUDY 1
:-A.S.Parveen Akhtar VS Union of India
Facts:
In this case A.S. Parveen Akhtar got married to Y. Mhd. Ismail Farooq. The petitioner
was forced to persuade her parents to give scooter to them as dowry and threatened
her for divorce on her failure to do so. Due to the inability of the parents to fulfill the
thrust of dowry demanded by Ismail Farooq, she was thrown out o
f the house . Following these miseries she was forced to stay in a local hotel .Then she
was intimated by her father that her husband had pronounced Talaq in accordance
with the procedure usually followed and recognized. The respondent then sent a copy
of it to father of the girl.
Thus the petitioner filed a writ in the high court to declare that section 2 of the
Muslim personal law application act is invalid and unconstitutional as it is repugnant
to natural justice and the rights enshrined under several articles of the constitution of
India .
She also contended that this form of Talaq is not in consistence with that as laid
down in the Holy Quran.
Held :
The court held that whatever be the form of Talaq what is necessary is that several
attempts for reconciliation should have been made .
Further held that the section 2 of the Muslim Personal Law Application Act is valid
and hence the form of Talaq recognized by it is valid and not unconstitutional. Thus
the petition was dismissed.
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CASE STUDY:2
Dagdu VS. Rahimbi Dagdu Pathan
Facts:
Fahimbi was married to Dagdu and three children were born out of the wedlock .
Fahimbi filed a petition for maintenance under section 125 of Cr.P.C. for herself and
her children . Dagdu appeared before the court and contended that since he had
divorced her in the presence of witnesses, so she was not entitled for any kind of
maintenance .
Wife maintained that the Talaq was not communicated to her however the
presumption made by Dagdu was that the Talaq was pronounced to her on 30
november 1992 and the reason stated in Talaqnama was that she had filed a petition
for maintenance and it was insult towards husband and his parents .
Held :
The court held that the Quran states that husband could only divorce his wife for
reasonable causes; that Talaq even if it is oral must be proved before the court if it is
contested by wife by leading evidences.
The “practice of pronouncing unilateral irrevocable triple Talaq by Muslim husbands
does not keep up with the Quran’s progressive spirit, neither with the magnanimous
ideals of equality and justice of the Indian Constitution.” This practice is a particular
confluence of Patriarchal conservatism and ill informed and shallow interpretation of
religious text, that too to the prejudice of women.
When Talaq is said abruptly, then there is no possibility or scope for any settlement,
and any livelihood choices or options for women who, just are rendered alone and
single without any support system.
It is a single right given to men, where men can decide, choose and deliver at their
own choice. opposed to logic and principle. 1. Triple Talaq is Against the Progressive
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spirit of Quran Quran gave rights to women 40,000 yrs ago. Spirit of Quran is about
Justice and fairness (to all including women).
Yet the modernity of the Islamic jurisprudence falls prey to the stringent way in which
the rights of women are interpreted, though the interpretation may be 2 Quranic
validity of this practice : What is contested herein is a practice of Triple Talaq which
evolved in 2nd century during the period of Ommayed kings. Triple Talaq or Talaq ul
biddat applies to Muslim men by pronouncing their intention 3 times. According to
Islam that should happen over a period of 3 months, giving both the parties time to
think through the consequences
The “practice of pronouncing unilateral irrevocable triple Talaq by Muslim husbands
does not keep up with the Quran’s progressive spirit, neither with the magnanimous
ideals of equality and justice of the Indian Constitution.” This practice is a particular
confluence of Patriarchal conservatism and ill informed and shallow interpretation of
religious text, that too to the prejudice of women. When Talaq is said abruptly, then
there is no possibility or scope for any settlement, and any livelihood choices or
options for women who, just are rendered alone and single without any support
system. It is a single right given to men, where men can decide, choose and deliver at
their own choice
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CHAPTER -2
1. Triple Talaq is Against the Progressive spirit of Quran
Quran gave rights to women 40,000 yrs ago. Spirit of Quran is about Justice and fairness
(to all including women). Yet the modernity of the Islamic jurisprudence falls prey to the
stringent way in which the rights of women are interpreted, though the interpretation may
be 2 Quranic validity of this practice : What is contested herein is a practice of Triple
Talaq which evolved in 2nd century during the period of Ommayed kings. Triple Talaq or
Talaq ul biddat applies to Muslim men by pronouncing their intention 3 times. According
to Islam that should happen over a period of 3 months, giving both the parties time to
think through the consequences. Quran bears the credit of being one of the first holy texts
to consider individual lfreedom above community perceptions. Marriage in Islam is a
civil contact and through divorce (Talaq) it offers an honorable exist route from relations
which no more fetch happiness.
Dissolution of Muslim marriages could be through two ways
1. Judicial Method {under Dissolution of Muslim Marriages Act, 1939}
2. Extra Judicial Method Judicial Method provides for seven grounds on which, women
Married under Muslim law shall divorce their husbands which includes disappearance for
4 years, no maintenance for 2 years, imprisonment of 7 years or more to husband,
impotency, veneral diseases etc3
`1.Talaq-us-Sunnat Extra Judicial Method:
This method of dissolution of marriage derives its basis from Chapter II,Verse 229 which
states : “Either retain them with humanity or dismiss them with kindness”
The two kinds of Talaq recognized by Hanafi sect of Muslims are :
1.Talaq-ul-Bida
2.Talaq-us-Sunnat :
Talaq-e-Ahsan
Talaq-e-Hasan
Talaq-e-Ahsan
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Dissolution of Muslim Marriages Act, 1939 Sec 2 one single pronouncement of divorse
in period of Tuhr. Can be revoked within 3 months before completion of Iddat period
Talaq –e-Hasan
Pronouncement and revocation of divorce can be done twice in life and the third
pronouncement makes the divorce irrevocable and thus is final.
Talaq ul Bida/ Talaq ul Biddat
If a man repeats the word Talaq thrice this is supposed to be Talaq ul Biddat and hence
instantly dissolving the marriage leaving no room either for revocation of divorce during
iddat or for renewal of marriage ever after that. Very unfortunately Muslim men in India
are blissfully unaware of the true Islamic law on divorce and believe the so called Talaq-
ul-Bidat to be the only Islamic way of divorcing their wives. This is indeed a devastating
state of affairs playing havoc with Muslim women . Abul - Ala- Maududi an eminent
Muslim theologist of the subcontinent has lamented “Due to ignorance Muslims generally
believe that divorce can be given only through triple divorce formula, although it is an
innovation and a sin leading to terrible consequences. If people knew that triple divorce is
unnecessary and even a single talaq would dissolve the marriage leaving room for
reconsideration, innumerable families could have been saved from destruction.”
The true Islamic law is in conformity with the breakdown theory of divorce.
The Quran did not specify any matrimonial offences. The prophet of Islam laid down no
bars to matrimonial relief. The lawgiver of Islam did not want the matter to be taken to
the court at all, unless it became unavoidable for the wife due to the age old
predominance of man.5 Unequivocally declaring divorce to be abghad al- mubaahaat
(most detestable of all legally permissible things). The following verses in Quran which
reflects the progressive spirit of the holy text. Sura No.2. Aayat No. 227/228- If their
intention is firm for divorce (give them). The divorced women shall wait for three
monthly periods concerning them. Their husbands have the better right to take them back
in that period, if they wish for reconciliation. The women shall have rights similar to the
rights against them, according to what is equitable Sura 4 Aayat no. 15- If you fear a
break between them then appoint two Arbitrators, one from his family and other from her
family. If they seek to set things right, Allah will cause their reconciliation
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In the case of Dagdu Chhotu Pathan v. Rahimbi Dagdu Pathan7
(1) For reasonable cause/grounds , a full bench of Bombay High court took the view that
a Muslim can give Talaq :
(2) He has to follow the provision of arbitration for reconciliation. , In the case of
Saleem Basha vs. Mumtaz Begam10 1- it was, held that “ It is fallacy that a Muslim
male enjoys, under the Quranic law, unbridled authority to liquidate the marriage.
Following Quranic Aayats point towards the indomitable spirit it holds in respect to the
dignity and grace of women
" Sura 65 Aayat No1. If you divorce women, divorce them at their prescribed period and
count (accurately) their prescribed periods and fear Allah and turn them not out from their
houses nor shall they (themselves) leave, in case, they are guilty of some open lewdness..
Sura 65 Aayat No: 2- Thus when they fulfill their term appointed, either take them back
on equitable terms or part with them on equitable terms and take witness- two persons
among you, endued with justice and establish the evidence for the sake of Allah
Islamic personal laws are evolving within themselves, thus issues like triple Talaq are
debated within the community. 93% Islamic countries have banned the use of oral and
triple Talaq. Professor Tahir Mahmood after observing that the Hanafi rule is recognising
and giving effect to improper Talaq which is not a part of the original Islamic law, has
stated “As this was never the intention of the jurists of the past, a large number of Muslim
countries have enacted laws disempowered chain of Indian womanhood. In India we have
arrived at this commonsense that women in marriage have less rights then men. Article 25
and 26 of are equally meant for men and women, whatever be the denomination.
2. Triple Talaq is Ultra Vires to the Indian Constitution
The practice of triple Talaq is grossly injurious to the human rights of the Muslim
women. This form of Talaq is infested with the malady of inequality which goes against
equality which is enshrined in Article 14 of the Indian Constitution. Talaq-ul-biddat
distorts the fundamental right against any form of discrimination enshrined in Article 15
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of the Indian Constitution. Lastly, turning aside, from normal format of divorce, Talaq-ul-
biddat mars the essence of Article 21, the right to life and personal liberty.
In the case of A.S Parveen Aaktar v. Union of India , it was submitted -“that the
assumptions and beliefs upon which such a form of divorce is recognised are factually
false, scientifically untenable and contrary to the spirit and provisions of the
Constitution16 Article . Apart from fundamental rights, various directives of the state
policy such as
Article 44 which guarantees continuous endeavors by the state to achieve a uniform civil
code; Article 38 which promises that the state shall strive to secure social order and
promote welfare of people;
Article 39 which points to the principle of policy of the state to make progressive laws
Article 39-A which guarantees equal justice to all are grossly led down as Indian Muslim
women fell prey to such unjust practices They hardly have any access to justice as law
hides behind the elevated wall of Article 25 and 26 which hardly considers women
grievances subjugated to their misinterpreted personal laws. As regards practice of
religion , the courts have ruled in many cases that only those practices ,of whichever
religion , as are its essential parts must be legally protected. In other words protection of
non essential religious practices would be the discretion of the state and cannot be
claimed to be protected as fundamental rights17. Destitution, vagrancy, trafficking of
neglected women does not vary with region, religion, caste or creed. The response to the
basic right to life based on religion, with which the issue of maintenance of woman is
linked, is unconstitutional and unethical.
3. The practice of triple Talaq is violative of Convention on Elimination of All Forms
of Discrimination Against Women (CEDAW) to which India is a signatory
The Constitution not only grants equality to women, but also empowers the State to adopt
measures of positive discrimination in favour of women. India has ratified various
international conventions and human rights instruments committing to secure equal rights
of women. Key among them is the ratification of the Convention on Elimination of All
Forms of Discrimination Against Women (CEDAW) in 1993 Under this convention India
is obliged to observe (Article 51(A) (e),15 (i), 15 (3), 39(a), 39(d)) 19 Communities
would be specially taken into account. of its constitution and endeavor to make special
provisions for the upliftment of women. The demand from women’s group is that the
Government’s policy should at least be modified to say that while ascertaining the views
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of the minority communities, the views of women of such 20 Thus empathetically we
have to understand that women must be an integral part of law making procedures as far
as family law and personal laws are concerned. The harsh reality is that they are left
behind to the mercy of those who are not well acquainted with the ideas of equal rights to
women, and here is where discrimination slyly creeps in.
4.Falling back to the progressive Islamic Jurisprudence of other Islamic countries
An article in Indian Express dated December 08, 2004 stated that National Commission
for Women is of the view that Muslim personal law in India is particularly backwards and
creating awareness about other Islamic societies would help fight the propaganda that the
Shariat laws could not be interpreted or changed
In Pakistan, "triple Talaq," or instantaneous verbal divorce, has been illegal since 1961. In
countries like Indonesia, Malaysia and Brunei, even a second marriage is banned.
However, in countries like Iran, Iraq, Syria and Bangladesh, second marriages are
discouraged through a strict legal and administrative mechanism. [In India, polygamy is
still legal under Muslim personal law. -AS] Turkey and Iran, both husband and wife enjoy
equal rights for seeking divorce. Turkey, Indonesia, Iraq, Iran and Bangladesh have
legally banned one-sided divorces, which gave men arbitrary powers to break marriages,
while countries like Egypt, Sudan, Jordan, Tunisia, Morocco, Pakistan and Bangladesh
had banned the practice of triple Talaq long ago.
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Conclusion
Thus we come at a point where we realize that gross injustice has been done to a section of
humanity which has more often than not paid obedience to the religious texts to which she
was bound, had always remained silent even when world has thrown her to the mercy of
destiny, with no livelihood choices, effective maintenance schemes and continuously pestered
her to be an acquired personality under the unquestioning regime of men. We have moved
away from the clutches of orthodoxy and fanaticism, this era is an era of empowerment,
literacy and freedom, then why not give women her due. Triple Talaq is a customary practice
which has evolved through shallow interpretation of a great text like Quran. Triple Talaq is a
weapon of victimisation of women in the hands of Muslim men. Triple Talaq destroys a
woman
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