HSNC University, Mumbai

D.M. Harish School of Law

Assignment for
Internal Continuous Assessment- 2022

Subject: FAMILY LAW I

Submitted by: VRUSHI NARESH JAIN

Signature of the Faculty

According to Islamic law, marriage has the same legal status as a civil contract. Both parties join into it of
their own free will. When it is formed, it also resembles a contract since there is an offer and acceptance
between the parties, granting husbands and wives the same rights. Due to the patriarchal belief that males
are physically and intellectually superior to women, the husband is granted greater rights than the wife upon
the breakup of the marriage. Although marriage is often regarded as a legal transaction under Muslim law,
some people also recognise it as a religious rite.

Talaq is an Islamic word for divorce and it literally means ‘separating or breaking of marriage tie’.

The Arabic term "talaq" denotes the breakup of a marriage when a Muslim man can cut off all links to his
wife. Simply saying "Talaq" three times will grant freedom from the bonds of marriage, according to Sharia
law (Islamic law). Calling this quick divorce "Triple Talaq" or "Talaq-e-Bidat" Oral Talaq is another name
for this. The practice of Triple Talaq was made lawful by the Sharia law that entered into force in 1937,
giving Muslim husbands a particular authority over their wives to end the marriage whenever they choose.
This type of divorce cannot be undone.

Basically, the right of talaq is in the hand of husband, they can repudiate their marriage and set her wife free
from marriage, when a man decided not to live with her spouse and break the contract the procedure is
called Talaq. As in Muslim law Sharia give women equal rights to establish themselves and give a place to
put their opinion as well, with this when a woman has initiated and wanted to separate with her husband due
to any reason the law give permission to her to get divorce with her husband this kind of separation is known
as KHULA.

The other forms of talaq are as follows:

Talaq-e-Ahsan – This form of talaq is considered to be the best kind of talaq. In this form, the husband has
to pronounce the word ‘talaq’ in a single sentence and then abstain from a sexual relationship with his wife.
This form of talaq is revocable during the iddat period which may either be implied or expressed.

Talaq-e-Hasan – In this form of talaq, the husband has to pronounce ‘talaq’ in three successive tuhr period
(periods between the two menstrual cycles) and abstain from a sexual relationship with his wife as soon as
the first pronouncement is done. The revocation time in this talaq is till the third pronouncement after which
it becomes irrevocable.
TRIPLE TALAQ

It was observed that whomever is impulsive or on a slight error of her wife, the husband plainly pronounced
three times as normal. It is a form of divorce that is often practiced in Islam in a wide range. The male does
not need to give a good cause for the divorce, and the woman does not need to be present when the talaq is
said. Many Muslim spouses asked that this immoral practice be outlawed as they pounded on the doors of
the courts in search of justice since Islamic law offered no defence against it because it was designed with
sin in mind, but there was still no proof that it should be done away with. The prohibition of this system has
long been urged.

SHAYARA BANO V. UNION OF INDIA

FACTS OF THE CASE:

 The petitioner, Shayara Bano, had been married to her husband, Rizwan Ahmed, for 15 years. In
2016, he divorced her through instant triple talaq (talaq -e biddat), i.e., a practice that allows a man to
divorce his wife by saying the word “talaq” three times in one sitting without his wife’s consent.
 Shayara Bano filed a Writ petition in the Supreme Court pleading to declare three practises talaq-e-
biddat, polygamy, and nikah-halala as unconstitutional as they violate the fundamental rights of
women enshrined in Articles 14, 15, 21, and 25 of the Indian Constitution.
 Nikah Halala means a practise in which a divorced woman who wishes to remarry her husband must
marry and get a divorce from a second husband before remarrying her first husband while polygamy
means the practice of Muslim men having over one wife.
 On February 16th, 2017, the Court requested written submissions from Shayara Bano, the Union of
India, various women’s rights organisations, and the All India Muslim Personal Law Board
(AIMPLB) on the issues of talaq-e-biddat, nikah-halala, and polygamy.
 The Union of India supported the petitioner’s claim that these practises are unconstitutional and
women’s rights organisations such as Bebaak Collective and Bhartiya Muslim Mahila Andolan
(BMMA).
 However, the AIMPLB argued that uncodified Muslim personal law is not subject to constitutional
judicial review, and that these are essential Islamic practises protected by Article 25 of the
Constitution.
JUDGMENT OF THE COURT

The five- judge bench of the Supreme Court gave its decision in favour of Shayara Bano and others. It
declared the practice of Triple Talaq unconstitutional by a 3:2 majority and directed the legislature to take
measures against it in order to stop the abuse against women. The Court in this case emphasised that though
this practice of triple talaq is mostly followed by the Hanafi School, it is sinful.

While delivering the judgment, the Court opined that many other Muslim countries in the world have
already abolished this practice on the ground that it lacks sanction from the Quran and was neither
encouraged nor followed by the Prophet. The Court held the practice to be violative of fundamental rights
under Part III of the Constitution.

CONCLUSION

Triple Talaq is such a practice that is irrevocable and it gives Muslim men absolute right to divorce their
wives without their consent. This is practice unilateral by which the women has to suffer as it deprives her of
economic security, protection and social security and thus, it makes this practice discriminatory in nature. It
takes away their right to equality and right to live a dignified life enshrined in article 14 and 21 respectively