Islamic Divorce Law and Women: Recent Judicial and Legislative Strides in India

‘Of all things permitted by Law’ said the Prophet (in a Hadith), ‘divorce is the most abominable in the sight of Allah.”[1] Thus said, the Qur’an gives specific guiding principles as to talaq or divorce. Talaq (Divorce) means “freeing or undoing of a knot”. As per the tenets of Islamic law, divorce can be classified into three categories. Talaq, khula and mubaraat. The first one, talaq, as understood plainly, is a means of divorce, at the instance of the husband (unilaterally). ‘Khula‘, is another method of divorce, but at the instance of the wife. The third mode of divorce is ‘mubaraat’ – is divorce by mutual consent.[2]

Although divorce is permissible under the tenets of Islamic law, it is discouraged by both the Qur’an and the Hadith. Reconciliation or mediation of the discord between the husband and the wife is recommended by the Qur’anic revelations.[3] Interestingly, Islamic jurisprudence recognizes three forms of talaq viz. talaq ahsan, talaq hasan and ‘talaq-e-biddat’/ talak-i-badai/ talaq bid’i. While the first two forms of talaq are approved in Islam and are revocable, the third one is considered irregular and of an irrevocable nature. In ‘talaq-e-biddat’ divorce is effected either by, one definitive utterance of the expression ‘talaq’ such as, “I talaq you irrevocably” or by three simultaneous pronouncements, like “talaq, talaq, talaq”, pronounced at the same time and the divorce is effective instantly.[4]

In Islam, there is widespread ambiguity as far as the initiation of divorce at the instance of a wife is concerned. This has fuelled discourses and contested legislative enactments throughout the Islamic world. Specifically, the issue of triple talaq being against the norms of gender equality has been a part of the Indian socio-political discourse for quite some time now. It is interesting to note that as per a National level Survey conducted in the year 2015 by the Bharatiya Muslim Mahila Andolan (BMMA), nearly one in eleven Muslim women were victims of the practice of triple talaq, a greater part of them getting no alimony or compensation.[5]

In August last year, in the matter of Shayara Bano v. Union of India and others[6], the Constitution Bench of the Hon’ble Supreme Court, adjudicated upon the legal sanctity of the practice of triple talaq. The Apex Court ruled that the practice of triple divorce or talaq was against the spirit of the law and termed it as arbitrary and in violation of a Married Muslim woman’s right to equality. In this regard, the Court observed as follows:

“…284. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad(supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara(supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained Under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq..”

(Emphasis added)

Despite the aforesaid ruling by the five-judge Bench of the Apex Court, the practice of triple talaq persisted. Therefore, to guard the rights of Muslim married women, divorced by the practice of triple talaq, a Bill, namely, the Muslim Women (Protection of Rights on Marriage) Bill, 2017, was introduced in, and passed by, the Lok Sabha on the December 28, 2017. But the same has been pending in the Rajya Sabha.

In view of the urgency of the situation and to give effect to the aforementioned ruling of the Apex Court, earlier this year on September 19, 2018, theMuslim Women (Protection of Rights on Marriage) Ordinance, 2018 (hereinafter referred to as “the Ordinance”) was promulgated by the Hon’ble President of India since the Parliament was not in session.

Recently, the Muslim Women (Protection of Rights on Marriage) Bill, 2018 (hereinafter referred to as the “Bill”), has now been introduced in the Lok Sabha, replacing the Ordinance. The Bill seeks to make the practice of triple talaq among the Muslims, a penal offence. The Bill is considered to be a step towards ensuring gender justice and equality. It also intends to preserve the fundamental rights of non-discrimination and empowerment to the married Muslim women.

The Ordinance endeavored to shield the rights of married Muslim women and proscribes divorce by the pronunciation of talaq[7] by their husbands. It declared all the avowals of ‘(triple) talaq’, whether by words, spoken or written or in electronic form, or in any other manner, to be void and against the spirit of the law. The pronouncement of talaq would attract punishment of imprisonment for a term which may extend to three years and would also be liable for fine.


This article has been authored by Ms. Surbhi Kapur from Team LawSkillsTo learn more about the Islamic Law on Divorce , you can visit our course on Divorce by Mutual Consent.


[1] FURQAN AHMED, TRIPLE TALAQ: AN ANALYTICAL STUDY WITH EMPHASIS ON SOCIO-LEGAL ASPECTS, Regency Publications (1994)

[2] Para 12 of the Judgment of the Hon’ble Supreme Court of India in the matter of Shayara Bano v. Union of India and others- MANU/SC/1031/2017

[3] SYED MOHAMMED ALI, THE POSITION OF WOMEN IN ISLAM: A PROGRESSIVE VIEW, State University of New York Press, Albany (2004)

[4] John R. Bowen, Gender, Islam and Law, WIDER Working Paper 2017/152, United Nations University World Institute for Development Economics Research (UNU WIDER), July 2017; See also Para 15 of Supra note 2

[5] Michael Safi, India court bans Islamic Instant Divorce in Huge Win for Women’s Rights, THE GUARDIAN, (August 22, 2017), https://www.theguardian.com/world/2017/aug/22/india-supreme-court-bans-islamic-instant-divorce-triple-talaq (Last accessed- December 20, 2018 at 12:40 IST)

[6] MANU/SC/1031/2017

[7] The expression ‘talaq’ has been defined as “‘talaq-e-biddat’ or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.”

Featured Image: The Quint

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