Criminalising Triple Talaq: A Step Towards Empowerment or Merely Symbolic Reform?

Introduction

Divorce under Islamic personal law is not merely a personal act but also a question of gender, equality, and state power. It has been the most debatable issue in terms of the husband’s unilateral power to end the marriage through talaq. The Supreme Court, in its decision in Shayara Bano v. Union of India (2017), has struck down the practice of talaq-e-biddat (triple talaq).[1] The legislature followed up with The Muslim Women (Protection of Rights on Marriage) Act, 2019, making talaq-e-biddat a crime.[2] Talaq-e-hasan and talaq-e-ahsan are still permissible forms of talaq that are slow yet one-sided for men. Therefore, there arises the question, whether criminalising triple talaq actually led to gender justice or just addresses one of the problems.

Types of Divorce

Divorce under Islamic law is supposed to be preceded by consideration and reconciliation. The classical jurisprudents recognized three major types:

• Talaq-e-Ahsan – a single pronouncement followed by the iddat period;
• Talaq-e-Hasan – words uttered at three successive states of purity, allowing reconciliation;
• Talaq-e-Biddat – three words in a single sitting, producing instantaneous divorce.

The Inequality in Divorce Procedures

Talaq-e-biddat was the most controversial form due to its immediate and irrevocable nature. It was recognized in India till the decision in Shayara Bano case in 2017 but had for long been condemned by Muslims since it was not in conformity with the policy of restraint as provided in the Qur’an. The imbalance persisted even today in talaq-e-hasan men retain unilateral powers to issue divorce and this has continued to cause controversy regarding post-Shayara Bano reforms.[3]

Shayara Bano case saw a five-member bench declare talaq-e-biddat unconstitutional by a 3-2 ratio while having differences on how to justify such a ruling. Following this, the 2019 Act was enacted in parliament rendering the practice of instant triple talaq null and void and punishable with jail time of up to three years.[4]

Despite the fact that the reforms have been applauded and appreciated by all as a great achievement for the Muslim women in India. The significance of the effect of this law has been questioned by many others. Firstly, according to the critics, by criminalising talaq, the nature of the act went from being a civil wrong to a criminal act. While talaq-e-biddat was criminalised and hence removed from the process, the inequality within divorce procedures under Muslim personal law remained unchanged.

This is important since the problem within talaq-e-biddat was not only that it could be pronounced instantly but it came from the fact that it highlighted the existing inequality in the power of divorce. Even today, while talaq-e-hasan and talaq-e-ahsan provide certain checks to the wife and allow her to attempt reconciliation before divorce, ultimately it is the man who holds the power to pronounce talaq.

Moreover, the question of criminalization also ignores certain practical considerations. Imprisonment might prevent arbitrary divorces, but there is little that can be done regarding the financial instability that many women face after a divorce. In the case of imprisonment of their husbands, the woman might have to go through a long process involving litigation over maintenance and other issues. Thus, punishment cannot be synonymous with empowerment.[5]

Nikah halala is another issue that is not covered under the new legislation. As per the traditional interpretations, when an irrevocable divorce takes place, the divorced couple is no longer allowed to remarry each other unless the woman marries someone else first and terminates the marriage with him. Even classical Islamic law is against arranged and temporary marriages with the sole aim of remarriage of the divorced couple. Additionally, there have been many concerns in modern interpretations regarding the misuse and exploitation of this procedure.

It must be highlighted that while talaq-e-biddat became the main issue of discussion, other practices that affect women’s autonomy remained largely untouched. Therefore, in case gender justice is one of the key objectives of this act, then this matter cannot be left out.

The political and media attention surrounding Shayara Bano often presented triple talaq as the central problem facing Muslim women. However, the lived reality is more complex. The abolition of instant talaq removed an extreme form of arbitrariness, but it did not eliminate the unequal distribution of divorce rights, nor did it create a comprehensive framework protecting women’s economic and procedural interests.[6]

Reforms

Substantive reform needs to go beyond abolition to designed procedure. The following steps are important:

1. Notice and Reconciliation – Mandate written notice of divorce and 90-day reconciliation,
2. Registration and Witnesses – Mandate talaq registration before two witnesses and authorize both spouses to register it.
3. Economic Guarantees – Provide mahr and maintenance payments, rights of custody, and division of marital property prior to finalising divorce.
4. Mandated Divorce Rights – Promote talaq-e-tafwid in nikahnamas to allow women to initiate divorce on conditions agreed upon.
5. Greater access to legal aid and awareness programmes; and
6. Judicial supervision to ensure compliance with procedural requirements.

These changes would balance religious values with those of the constitution and protect women by process, not punishment.

Conclusion

To conclude, Shayara Bano and the 2019 Act certainly succeeded in tackling one of the most contentious issues in the Muslim personal law. However, criminalizing triple talaq cannot be seen as the success of gender justice. As long as unilateral modes of talaq still prevail and issues related to women’s independence, economic stability, and halala persist, then the reform shall remain incomplete. To achieve equality, the discourse should go beyond punishment and seek protection for women based on procedural justice and reciprocity.

References

[1] Shayara Bano, (2017) 9 SCC 1.

[2] Muslim Women (Protection of Rights on Marriage) Act, No. 20 of 2019, India Code (2019).

[3] A.A.A. Fyzee, Outlines of Muhammadan Law (5th edn, Oxford University Press 2008) Pg 118-127

[4] Shayara Bano, (2017) 9 SCC1.

[5] Flavia Agnes, Muslim Women and the Right to Equality, 52 Econ. & Pol. Wkly. 12, 15 (2017).

[6] Katherine Lemons, Divorcing Traditions: Islamic Marriage Law in India (Oxford University Press 2019).