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Triple talaq, that is, the instant divorce under Muslim personal law comprises three forms of talaq: Ahsan, Hasan and Talaq-e-Biddat. The first two, that is, the Ahsan and Hasan are revocable. However, Talaq-e-Biddat is irrevocable. It is a matter of faith for the Hanafis, a sect within the Sunni Muslim community who constitute the majority Muslims in India. Triple talaq as a concept does not find itself in the Quran. It is mostly a matter of tradition and faith which is being followed for 1,400 years now.

In the recent years, a lot of debate has been concentrated around triple talaq under the Muslim personal law. The Constitution of India provides for Fundamental Rights which are justiciable and the Directive Principles of State Policy which are non-justiciable. The religious rights of Muslims are protected under Article 25, which comes under the Fundamental Rights. The State is also instructed to provide a uniform civil code under Article 44 which is covered under the Directive Principles of State Policy.

A reason why uniform civil code was made non-justiciable traces back to the Constitutional debates after India’s independence. B. R. Ambedkar in the initial stages of the debates, he had shown strong support for a more Western uniform civil code. Even the then Prime Minister, Jawaharlal Nehru expressed his support. He was against the concept of religion being given the jurisdiction of people’s lives. This was however opposed by Muslim representatives and several staunch Hindu Congressmen who argued that bringing in new concepts in religion might break families instead of making them. For this reason, the draft bill supporting the code could not make it ahead. It only resulted in Article 44, which was non-justiciable.

In the Shah Bano case (1985), there was a whole lot of opposition for the implementation of the uniform civil code, which went against Muslim Personal law. Hence we see how there lies a conflict, or more evidently friction between the Fundamental Rights and the Directive Principles of State Policy. Should the state protect the religious rights against that of providing justice to a Muslim woman? Or should it provide justice to a Muslim woman by disregarding the Fundamental right to religion? What should the state prefer, gender equality or religious perseverance? One, cannot just say gender equality in the first place. Thought needs to be given to why the freedom to religion exists. It was to ensure protection of the religious minorities who did not want their laws to be threatened in a Hindu dominated nation. The Muslim orthodoxy defends triple talaq, and has opposed Court’s judgements on the grounds that it violates the constitutional rights given to minorities.

Similarly in Imrana rape case, there was a conflict between the Muslim Personal law and providing justice to a rape victim. In this case, Imrana’s father-in-law had raped her, after which the Panchayat declared Imrana’s marriage to be void as she had ‘sex’ with her father-in-law and that, she should consider her husband to be her son. The court however provided a judgement to punish the father-in-law. In the intermediate period and even afterwards, there was debate on the Islamic rulings. The triple talaq case recently is also formed in these lines, where petitions have been filed to abolish certain laws under Muslim Personal laws which bring down the dignity of women.

In October 2015, the Supreme Court examined the Muslim personal laws. This was initiated through a public interest litigation (PIL) petition titled ‘In Re: Muslim Women’s Quest for Equality’ to examine if women rights were violated due to certain Muslim traditions. In Danial Latifi’s case the court upheld the right of Muslim women to maintenance till re-marriage.

In May 2017, Supreme Court took to hearings on the triple talaq case. This was an advancement to petitions filed by Muslim women for the abolition of triple talaq, which they consider to be an unjust tradition which suppresses them.

There is a display of unequal power relations between males and female in the concept of triple talaq. Under the Dissolution of Muslim Marriages Act, 1937, a man can initiate the talaq at his will and pronounce triple talaq. On the other hand a women needs to have a cause to initiate divorce and cannot initiate divorce at her will. The concept of equality has also been negated. Why cannot both, the husband and the wife have the same rules?

Many Muslim men support triple talaq in the name of traditions. Traditions should change and evolve with time. The practice of sati in the Hindu marriages was a tradition which changed because of the cruelty of death that a widow had to face by being forced to die on her husband’s pyre. This was abolished as this was considered a form of oppressing widows and the society, in this case, had no rights to force a widow to give away her life when her husband passed away. Such traditions should be done away with for the society to process in an egalitarian manner.

Male dominance, is a privilege for the males which has been normalized. The ideology behind giving this right to men only is that they are supposed to be ‘wiser’. Wives have to adjust to the whims of her husband. These gender stereotypes are so embedded in the community that not only men, several women also believe that their husbands have full rights over them and that they should not go against their husbands in order to be ‘good’ wives.

On the 18th of May, 2017 the Supreme Court reserved its judgement on triple talaq after conducting hearings for six days. Will the judgement uphold the constitutional provisions of justice and equality in Article 14 and 15 of the Indian Constitution?



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Written By Swati Sradhanjali

I am Swati Sradhanjali from Lady Shri Ram College for Women. I'm pursuing political science (hons) and I'm in my final year.

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