• ‘A’ marries a Hanafi woman. In a fit of anger, ‘A’ pronounces Talaq three times and sends the wife to her parent’s home.
  • The next day ‘A’ repents and wants his wife to come back to which the wife refused and maintained that she had been divorced irrevocably.
  • ‘A’ brings a suit for restitution of conjugal rights and declared that he believes in pure and simple Islam and does not believe in any sects.
  • The wife also sues for her Deferred Dower. 

The case at hand is related to the Principles of Mahomedan Law.

To begin with, let us discuss some important terms relevant to the case at hand:

  • Hanafi: Hanafi School is one of the four sub-schools among Sunnis. The Sunnis are a preponderant majority among Muslims in India. The presumption in India is that a Mahomedan is governed by the Sunni School of law (Hanafi Sub- School)[1]. The wife of ‘A’ in the case at hand belongs to the Hanafi School.
  • Talaq-ul-biddat (Triple Talaq): It is one of the modes of divorce under Mahomedan Family Law. By this method, the wife is irrevocably divorced by the husband if he pronounces talaq thrice during a single tuhr (the period between two successive menstruations). It is recognised by Islam but sternly disapproved as once pronounced, there is no option to revoke this divorce to reconcile.[2]
  • Restitution of Conjugal Rights: Marriage entails certain duties and rights of the partners bound by matrimonial laws towards each other, the most imperative of which is the duty to cohabit i.e., to live under the same roof and start a family. After the solemnization of marriage, if either of the spouses, without any reasonable reason, refrains from fulfilling his/ her matrimonial duties towards the other spouse, the latter can file a suit for restitution of conjugal rights the literal meaning of which is ‘the restoration of matrimonial rights’.
  • Deferred Dower: Dower or Mahr is the sum of money or other property that the wife is entitled to receive from her husband as consideration for marriage. The amount of Dower is generally split into two parts namely, prompt dower which is payable on demand and deferred dower which is payable upon dissolution of marriage by divorce or the death of the husband.[3]

Having discussed the relevant terms, some of the important issues that arise in the matter at hand are listed below:

  1. Whether pronouncement of triple talaq (talaq-ul-biddat) by ‘A’ is a constitutionally valid method, constituting irrevocable divorce?
  2. Whether ‘A’ will succeed in his suit for Restitution of Conjugal Rights?
  3. Whether the wife of ‘A’ is entitled to deferred dower?


  •  Muslim Personal Law (Shariat) Application Act, 1937.
  • The Muslim Women (Protection of Rights on Marriage) Act, 2019.


Constitutionality of Triple Talaq:


Hanafis recognised two modes of talaq, namely talaq-ul-sunnat and talaq-ul-biddat. Talaq-ul-sunnat is further divided into talaq ahsan which is considered most proper and talaq hasan which is considered to be proper. Talaq-ul-biddat is a fairly new practice, the most notable essential of which is its irrevocability. Unlike talaq ahsan and talaq hasan, which give the husband considerable time to reconsider his decision, talaq-ul-biddat becomes irrevocable at the instant of his pronouncement. Theologically speaking, the practice of talaq-ul-biddat is against the tenets of the Quran. However, this practice was highly prevalent in India and it still persists as a social evil.


Shamim Ara v. State of U.P. & anr.[4]

Court: The Supreme Court of India

Bench: R. C. Lahoti, P. Venkatarama Reddi

In 1979, the petitioner filed a suit against her husband, alleging that he had deserted and failed to support her. The husband responded in 1990, that he was under no obligation to support the petitioner because he had divorced her in 1987 via talaq-ul-biddat. The Court in this case held instantaneous triple talaq invalid because it is against the provisions of the Quran for a valid divorce which deems reasonability and an attempt at reconciliation imperative elements to constitute a valid divorce.

Rahmatullah v. State of UP[5]

Court: The Allahabad High Court

Bench: H N Tilhari

This case gave a new meaning and new direction to the law of talaq. While pronouncing the obiter dicta of this judgement, Justice Tilhari observed that talaq-ul-biddat, a mode giving unbridled power to the husband, cannot be deemed operative particularly as it has the effect of perpetuating discrimination on the ground of sex and male authoritarianism. The need of the time is that codified law of Muslim marriage and divorce should be enacted keeping, pace with the aspiration of the Constitution.

Shayara Bano v. Union of India[6]

Court: The Supreme Court of India

Bench: 5 Judge Constitutional Bench

In this landmark judgement the petitioner, Shayara Bano, sought a declaration that the ‘talaq-ul-biddat’ pronounced by her husband be declared void- ab- initio. She also contended that such divorce unilaterally and irrevocably terminates matrimonial ties, purportedly under the Muslim Personal Law (Shariat) Application Act, 1937[7], be declared unconstitutional. It was also submitted that triple talaq violates Fundamental Rights of citizens guaranteed under Articles 14, 15 and 16 of the Constitution and that such a practice cannot be protected under the rights guaranteed to religious denominations under Articles 25(1), 26(b) and 19 of the Constitution.

A five-judge bench by a majority of 3:2 ruled talaq-ul-biddat void, illegal and unconstitutional as well as against the basic tenets of the Quran. This was a path-breaking judgement whereby divorce through triple talaq was declared void-ab-initio.


In the case at hand, Talaq was pronounced three times which amounts to talaq-ul-biddat, divorce by means of which is illegal and void-ab-initio. Besides, ‘A’ does not identify with any sect of Islam, which indicate that the Quran is the major source of his beliefs. Thus, ‘A’ is legally as well as theologically deterred from pronouncing triple talaq, it being unconstitutional and in contravention with the provisions of the Holy Quran.

It can be thus concluded that the divorce pronounced by ‘A’ is void-ab-initio and that it did not lead to the dissolution of marriage by divorce.

‘A’s’ suit for Restitution of Conjugal Rights:


When the wife ceases to cohabit with her husband without any reasonable cause, the husband may file a suit for restitution of conjugal rights against her.[8]


The Muslim Women (Protection of Rights on Marriage) Act, 2019 makes all declarations of triple talaq, including written or electronic form or in any form whatsoever, to be void and illegal[9] and imposes a punishment of imprisonment which may extend for a period of three years and fine for a man who pronounces triple talaq by words either spoken, written or electronically transmitted or by any other means.[10] It makes the pronouncement of triple talaq a cognizable, non-bailable and compoundable offence.[11]


In the case at hand, we see that ‘A’ has pronounced triple talaq, a criminal act, which makes the intended divorce void and illegal thereby making him liable for punishment under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. As such, the suit for restitution of conjugal rights becomes baseless.

A’s wife’s suit to obtain deferred dower


Deferred dower becomes payable upon dissolution of marriage due to death of the husband or divorce. Thus, to be entitled to deferred dower, marriage should stand dissolved either on the grounds of death of the husband or due to divorce.

We have already discussed above that pronouncement of triple talaq is illegal and divorce thus pronounced is void-ab-initio.


Given the scenario in the matter at hand, we see that the wife had been divorced by the method of talaq-ul-biddat, an illegal method of divorce. Being void-ab-initio, such a divorce did not lead to the dissolution of marriage.

For deferred dower to be obtained, dissolution of marriage through death or divorce is an essential precondition. Having not been fulfilled in the present case, the wife would not be entitled to deferred dower.

However, she will be entitled to maintenance as any other married Muslim woman as her marriage with ‘A’ continues to subsist.


Nonetheless, the Muslim Women (Protection of Rights on Marriage) Act[12], 2019 entitles a Muslim woman, upon whom triple talaq has been pronounced, to receive a particular amount determined by the Magistrate as subsistence allowance from her husband.


The case at hand illustrates the prevalence of the heinous practise of triple talaq despite being declared void and illegal. At the grassroots level, there is an evident lack of awareness regarding laws pertaining to triple talaq in India. As such, we see that the method of talaq-ul-biddat is still largely used to exploit destitute women. The Muslim Family Law is seen to not have evolved to secure an equal right to the Muslim women to pronounce the divorce. The wife is religiously permitted to divorce her husband only when he delegates to her his power to divorce her. Besides, The Dissolution of Muslim Marriage Act, 1939, provides certain numbered grounds under which a Muslim woman can obtain a decree for dissolution of marriage[13]. This is highly unjust as no such grounds are required for a Muslim man to obtain a decree of divorce against his wife. As such, the marital life of a Muslim woman is seen to be subject to the whims and fancies of her husband. Thus, there is a serious and urgent need for legal reformation of Muslim Personal Laws in India especially with regards to divorce.

Moreover, there are two-fold consequences of criminalising talaq-ul-biddat under Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. Firstly, while the marriage legally subsists, the relationship between the husband and the wife will face a death blow. Naturally, the wife is likely to be ill-treated by the husband when he returns after serving his sentence. As such, there remains hardly any scope for reconciliation. Secondly, being subjected to void divorce by the means of triple talaq does not form a ground on which the wife can obtain a decree of divorce against her husband, leaving the wife at the mercy of her husband and his will to seek divorce.


Rendering divorce by Triple Talaq as illegal and void-ab-initio by making such statutory provisions does not suffice especially as this issue is a deep-rooted social evil. It can be perceived that the prevalent laws, particularly The Muslim Women (Protection of Rights on Marriage) Act, 2019 is not only inadequate in providing a remedy for Muslim women upon whom triple talaq is pronounced, but also crucially flawed in determining a proportional punishment for such Muslim men.

While Section 3 of the Act criminalises talaq-ul-biddat and Section 4 of the Act prescribes punishment for the same, it fails to provide a structured redressal mechanism for Muslim women upon whom Triple talaq is pronounced. Section 5 of the Act lays down that such a woman is entitled to receive ‘subsistence allowance’ from her husband for herself and her dependent children as decided by the Magistrate. However, it is unclear as to how the husband would provide for the wife while languishing in jail. The Act does not prescribe any other remedy whatsoever.

In my opinion, the law would be able to bar unjust use of talaq-ul-biddat not only by making such a divorce void-ab-initio but also by providing for a legal mechanism whereby such a void divorce can be converted into a valid one, failing to follow which within a reasonable period, the man would be liable for fine and wife will be entitled to compensation.

Alternatively, pronouncing triple talaq upon the wife should be incorporated under Section 2 of the Dissolution of Muslim Marriages Act, 1939 as a ground on which a Muslim woman is entitled to obtain a decree for dissolution of her marriage.

CREDITS: Gautami Kamat, V M Salgaocar College of Law

[1] Prof. G. C. V. Subba Rao, Family Law in India 624 (Prof. (Dr.) T.V. Subba Rao et al eds., 10th ed. 2011).

[2] Ibid., 1.

[3] Mulla, Mulla Principles of Mahomedan Law Chapter XV §285 et seq. (22nd ed. 2017) retrieved from Lexis Nexis India on 13 April 2021.

[4] Shamim Ara v. State of U.P. & anr., [2002 (7) SCC 518].

[5] Rahmatullah v. State of UP, 1994 (iz) Lucknow Civil Division p 463.

[6] Shayara Bano v. Union of India, [(2017) 9 SCC 1].

[7] the Muslim Personal Law (Shariat) Application Act, 1937, §2.

[8] Moonshee Buzloor Ruheem v. Shumsoonnisa Begum, [(1867) 11 MIA 551].

[9] The Muslim Women (Protection of Rights on Marriage) Act, 2019, §3.

[10] Ibid., 9, §4.

[11] Ibid., 9, §7.

[12] Ibid., 9, §5.

[13] The Dissolution of Muslim Marriage Act, 8 of 1939, §2.

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