Muslim personal law in India

All the Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937.^[1] This law deals with marriage, succession, inheritance and charities among Muslims. The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in which Muslim women can obtain divorce^[2] and rights of Muslim women who have been divorced by their husbands and to provide for related matters.^[3] These laws are not applicable in Goa state and the Union territory of Damaon, Diu& Silvassa, where the Portuguese Goan Civil Code is applicable for all persons irrespective of religion. These laws are not applicable to Muslims who married under the Special Marriage Act, 1954.^[4]

Divorce in Islam

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Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The main traditional legal categories are talaq (repudiation), khulʿ (mutual divorce), judicial divorce and oaths. The theory and practice of divorce in the Islamic world have varied according to time and place.^[1] Historically, the rules of divorce were governed by sharia, as interpreted by traditional Islamic jurisprudence, though they differed depending on the legal school, and historical practices sometimes diverged from legal theory.^[2] In modern times, as personal status (family) laws were codified, they generally remained "within the orbit of Islamic law", but control over the norms of divorce shifted from traditional jurists to the state.^[1][

In India, Muslim marriage is a civil contract between a man and a woman. Dissolution of marriage can be done at the instance of the husband (talaq), wife (khula) or mutually (mubarat). Talaq allows a Muslim man to legally divorce his wife by stating the word talaq.^[11] Some Muslim groups recognize triple talaq (or talaq-i-biddat), stating three talaqs at once and proclaiming instant divorce as valid method.^[12] On 22 August 2017, the Supreme Court of India deemed instant triple talaq unconstitutional.^[13] The Muslim Women (Protection of Rights on Marriage) Act, 2019, which declared instant talaq illegal and void, came into effect retroactively from 19 September 2018 after being given assent by the president of India on 31 July 2019 and women can filed case against it in court^[14]

Other Muslim groups follow talaq-i-hasan, where the husband pronounces talaqs on three separate instances, each one at least 1 lunar month apart. If the husband changes his mind after the first or second talaq, or cohabits with his wife, the divorce is nullified.^[11]

The husband can delegate power to pronounce talaq to his wife or a third person by agreement, called talaq-e-tafweez.

Section 5 of the Shariat Act of 1937 concerns Muslim women seeking divorce. Section 5 was subsequently deleted and replaced by Dissolution of Muslim Marriages Act 1939. Muslim women can seek divorce in a court of law. A woman can ask for divorce in the following circumstances:

• if whereabouts of the husband has not been known for four years
• if the husband has not provided for her maintenance for two years
• if the husband has been sentenced to imprisonment for seven years or more
• if the husband has failed to perform his marital obligations for three years
• if the husband was impotent at the time of marriage and remains impotent
• if the husband has been insane for two years or is suffering from leprosy or virulent venereal disease
• if the husband treats the wife with cruelty, even if absent physical violence
• if the wife has been given in marriage by her father or guardian before she reached age 15
• if the husband associates with women of evil repute or leads an infamous life or attempts to force her to lead an immoral life
• if the husband disposes of her property or prevents her exercising her legal rights over it
• if the husband obstructs her in the observance of her religious profession or practice
• if he has more than one wife, or does not treat her equitably in accordance with the Quran; or carries out any other ground recognised as valid for the dissolution of marriages under Muslim law.

Triple talaq, instant divorce^[1] and talaq-e-mughallazah (irrevocable divorce),^[2] was a form of Islamic divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence.^[3][4] It allowed any Muslim man to legally divorce his wife by uttering the word talaq (the Arabic word for "divorce") three times in oral, written or, more recently, electronic form.

The use and status of triple talaq in India has been a subject of controversy and debate. Those questioning the practice have raised issues of justice, gender equality, human rights and secularism. The debate has involved the Government of India and the Supreme Court of India, and is connected to the debate about a uniform civil code (Article 44) in India.^[5] On 22 August 2017, the Indian Supreme Court deemed instant triple talaq (talaq-e-biddah) unconstitutional.^[6][7][8] Three of the five judges in the panel concurred that the practice of triple talaq is unconstitutional.^[9] The remaining two declared the practice to be constitutional.^[10] Three of India's neighbouring countries — Pakistan, Bangladesh and Sri Lanka — are among the 23 countries worldwide that have banned triple talaq.^[11] The Quran established means to avoid hasty divorces.^[12] It prescribes two waiting periods of three months before the divorce is final in order to give the husband time to reconsider his decision.^[12] On 30 July 2019, the Parliament of India declared the practice of Triple Talaq illegal and unconstitutional and made it a punishable act from 1 August 2019.

The Muslim Women (Protection of Rights on Marriage) Act, 2019 passed on 26 July 2019 after a very long discussion and opposition finally got the verdict (the Indian Supreme Court judgement of August 2017 described below) to all women. It made triple talaq illegal in India on 1 August 2019, replacing the triple talaq ordinance promulgated in February 2019. It stipulates that instant triple talaq (talaq-e-biddat) in any form – spoken, written, or by electronic means such as email or SMS – is illegal and void, with up to three years in jail for the husband. Under the new law, an aggrieved woman is entitled to demand maintenance for her dependent children.^[13]

The Government first introduced the bill to Parliament in 22 August 2017.^[14] MPs from Rashtriya Janata Dal, All India Majlis-e-Ittehadul Muslimeen, Biju Janata Dal, All India Anna Dravida Munnetra Kazhagam, Indian National Congress and All India Muslim League opposed the bill. Several Opposition lawmakers called for it to be sent to a select committee for scrutiny. It was passed on 28 December 2017 by the Lok Sabha, or lower house of the Indian Parliament, where the ruling BJP held the majority of seats.^[15][16][17]

In a major political win for the Modi government, the Rajya Sabha, or upper house of Parliament, where the ruling NDA did not have a majority, approved the bill (99–84) on 30 July 2019 after a lengthy debate.^[18]

The bill followed a 2017 Supreme Court ruling that the practice of instant triple talaq is unconstitutional and a divorce pronounced by uttering talaq three times in one sitting is void and illegal.

Muslim triple talaq petitioner Ishrat Jahan welcomed the Bill when it was presented. Also Arif Mohammad Khan welcomed and appreciated the decision taken by Government and Parliament of India.^[19]

The triple talaq bill proposed by the previous Modi government lapsed when an election was called and the Lok Sabha was dissolved before the bill was sent to the Rajya.