Marriage under any system of law entails an implied commitment — that its termination, in case it cannot be avoided, will take place with fairness and formality. The use of instantaneous triple talaq in Muslim family law, where the husband was allowed to dissolve the marriage irretrievably merely by pronouncing “talaq” thrice in a single breath, was a promise not made to Muslim women. Performed without the wife’s agreement, without conciliation, and without any kind of judicial intervention, it turned marriage into an affair between two parties alone. The Supreme Court judgment in Shayara Bano vs. Union of India (2017), along with the promulgation of the Muslim Women (Protection of Rights on Marriage) Act, 2019, is a paradigm shift from this attitude.

Abstract

This paper critically evaluates the unconstitutionality of instant triple talaq and its legislative aftermath through the enactment of Muslim Women (Protection of Rights on Marriage) Act, 2019. The article suggests that even though criminalization of the said custom may be considered an important step towards gender equality, it is not free from paradoxes – in which the man is incarcerated while the existing marriage does not provide any relief to the woman. Based on judicial precedents and legal doctrine, this paper demands further reforms in Muslim marital law.

Historical Background

Classical classical jurisprudence identifies three forms of talaq. The recommended one is talaq- ul-ahsan, which entails the issuance of a revocable divorce followed by the waiting period (iddat). The disapproved form, that is, talaq-ul-biddat, despite being deemed sinful by some scholars even within the Hanafi tradition, had legal recognition. Many Muslim countries like Pakistan, Bangladesh, and Egypt had already outlawed it by legislation long before it was done in India. In India, it prevailed due to the personal autonomy of Muslims, while provisions of equality in the Constitution were not enjoyed by Indian Muslim women.

Without any doubt, this issue is connected with the case of Shah Bano Begum v. Mohd. Ahmed Khan (1985), in which the Supreme Court of India recognized the entitlement of a divorced Muslim woman to maintenance even after the waiting period. By the next overriding Act called the Muslim Women (Protection of Rights on Divorce) Act, 1986, it could be seen how legislation was used to undermine the rights of Muslim women.

Related Case Laws

In Shayara Bano v. Union of India (2017), a Constitutional Bench of five judges, in a 3:2 ratio, held that instant triple talaq is inherently arbitrary and violates Articles 14, 15, and 21 of the Constitution. According to Justice Nariman’s majority opinion, a practice that provides a husband the power of whimsical and capricious dissolution of his marriage does not have any scope under Article 25 (right to freedom of religion) of the Constitution. While dissenting in the case, Justice Khehar held that triple talaq being part of the Muslim Personal Law, could not be abrogated by the judiciary but should go through Parliament.

Prior to this, in Shamim Ara v. State of U.P. (2002), the Supreme Court ruled that a simple pleading of triple talaq as per personal laws within the court would not amount to divorce.

Critical Analysis

Through this Act, triple talaq stands declared as void, illegitimate, and non-bailable cognisable crime subject to imprisonment of up to three years, and also providing custody and subsistence allowance. Collectively, all these measures amount to a radical break in the approach of the State regarding its policy of non-interference in Muslim personal laws.

This Act carries within itself a serious contradiction. Through declaring triple talaq void, it makes clear that the marriage still exists; but at the same time, the husband becomes a prisoner under this law. Thus, what is the position of the wife here? She finds herself in a strange situation; she neither becomes divorced nor has a husband to look after her. While the woman requires civil relief in the form of custody, subsistence, and even divorce if she wishes, this Act gives her criminal relief.

Also, the provision of non-bailability can lead to community pressure to refrain from filing a complaint. Again, the right of divorce in this case is not made equal; only Muslim women have not been given a unilateral right to dissolve marriages similar to men.

Conclusion and Suggestions

Abolishing triple talaq represents an important milestone in India’s efforts at reforming personal laws. But a milestone marks merely the start of the journey. While the penal approach taken by the 2019 Act may be necessary for deterrence, there must also be an approach that benefits the wife through civil redress.

Three possible changes are proposed here. Firstly, women in India must enjoy the same right as their male counterparts for obtaining a judicial divorce based on similar grounds as the latter. Secondly, the provision regarding subsistence allowances must have a timeline as well as some method of enforcement. Finally, either gender-sensitive family courts or reformed Qazi systems could act as cultural mediators to resolve disputes in accordance with constitutional law.

Laws can’t change societies immediately but they must clearly signal the path forward. The path must lead to a Muslim woman who comes into court as a citizen of her own rights and not as the subject of her personal laws.