927Devjani Chatterjee

927Devjani Chatterjee,Arbind Samal
International Journal of Engineering Technology Science and Research
ISSN 2394–3386
Volume4, Issue12
Triple Talaqandthe Land Mark Judgment: Women One Step
Upthe Social Ladder?
Devjani Chatterjee
Assistant Professor,
Indian Institute of Management
Arbind Samal
Research Fellow,
Indian Institute of Management
Every religion has its own practices and society has learnt to assimilate these practiceswhich are at timesdrawn from
theology orfromtime to time based onthe need of the masses.Right to equality(Article 14-18)and right to freedom of
religion(Article 25-28)are twoof the fundamental rights guaranteed by the constitution ofIndiaupheldby Supreme
Courtto every citizen of this country.Thesefundamental rights tower over almost allaspectsgoverningan individual or
society and act asyardsticksfor such practices. Thisconceptualpaper pointsout on the specific aspect oftriple
talaqbased onspecificallytwodimensions; to understand if the social status of the women fighting for justicehas any
triggering effect on their action and secondlyto bring out the intrinsic facets of an individual who have fought against
such practices and what sets them apart from the general population at large. The scope ofstudy forthis paper includes
extant literature review based onprevious court judgments and interviews of people who are party to such litigationsand
related stake holders.
During the last decade there has been a growing interest in social justice especially if it pertains to the
minority masses. This can be attributed to theincreased awareness among the people through education and
the new age of social media interactions among the people. ThepluralisticIndiansociety withall its diversity
not only describes the beauty of this nation but also converges the variousfacets that are challenging as well
as intriguing. Having said that, few havereceived as much attention as the issue of thetriple talaqinIndia
recently.Triple talaqortalaq-e-biddathas been practicedunder Shariatlaw inIndiarecognized by the
supreme court ofIndiaand the national constitution under the Shariatapplication act 1937. It is however in
recent timestriple talaqissuehas cometo theforefront owingto a fewMuslimwomen who have been
actively fighting for the rights of theMuslimwomen inIndiaand their equal right to the annulment of
marriage. Thehistoricjudgmenton the sanctity oftriple talaqhas been discharged by the honorable courtover
a combined petition(Shayara Banovs.Union ofIndiaand Others2017, Aafreen Rehmanvs.Union ofIndia,
and others2016, Gulshan Parveenvs.union ofIndiaand others2016, Ishrat Jahanvs.Union ofIndiaand
Others2016,Atiya Sabrivs.Union ofIndiaand Others2017)wherethejudgmentupheld the right to
equality(Article 14-18) as supreme over the specific practice oftriple talaqonAugust 22ndtriple2017.The
court inits judgment has referredtoShamim Aravs.state of UP,Oct, 2002,as the law for invoking the right
to implement its decision and therefore applicable to all courts inIndia.
Thisjudgmentalthough considered landmark has drawn adebate among the various strataof the society on
whether the supreme court should consider intervening into the religious practices by the society and suggest
reforms or leave it to the religious gurus for consideration(Section-2 , Shariat Act 1937). This debate also
draws our attention to the question of what is appropriate in theology and its applicability in law.The paper
highlightsthe personalitytraits,motivation and Leadership traitsof thewomenwho have moved forwardto

928Devjani Chatterjee,Arbind Samal
International Journal of Engineering Technology Science and Research
ISSN 2394–3386
Volume4, Issue12
challenge the norms of thesociety.The processoftriple talaqguarantees absolute right to aMuslimman
seekingseparation even without notice, reason or contempt to his wife and thesame was accepted by the court
(Sarabaivs.Rabiabai on 9 December, 1905)in its judgment.Rightto maintenanceand inheritance of property
rights from husband (Ma Mivs.Kallander Ammal on 1 November, 1926) hasbeen spelt out clearly in favour
of the plaintiff (wife).The larger question thatremains to be answered is thetrue interpretation of theTalaq-e-
biddat based on shariat law (Shariat application act-1937).We believethispaper through its findings will act
as a platform for further study on the impact of legislation on sensitive religious issues concerning equality
vis-à-vis religious practices.Further this paper also lights upon the various aspects of human psychology such
as individual motivation, personality type and Leadership traitsof people who are at the forefront of bringing
in societal change.
The landmarkjudgment on the sanctity ofinstanttripletalaqcase bythe supreme court pending before it
(Shayara Banovs.Union ofIndiaand Others, 22nd August 2017) reveals thatthe right to freedom of
religion(Article 25-28) isthe fundamental right available to every citizenofIndiahowever such provision
should not contravene the right to equality (Article 14-18). TheSupreme Courtwith its majority verdictof3:2
on the above casehasclearly spelt out that the practice of instanttriple talaqis unconstitutional and hence
cannot be allowed to prosper. Instanttriple talaqdoes not provide any scope forarbitrationbetween the
aggrieved parties and any scope for reconciliation is absent making instanttriple talaqa one way
communication making unmatched preferential treatments.Thehonorablecourt has also cited theQuran
which denounces instant TripleTalaqas such in the words of justice Kurian joseph(Shayara Banovs.Union
ofIndiaand Others, 22nd August 2017) “what hasbeen bad in theology is bad in law too”.
Our rationality behind the study is that, the judgment ontriple talaqby thehonorable Supreme Courthas a
wide impact on theMuslimwomen inIndiaand further research can only increase its scopeby understanding
the social and individual factors of those petitioners, which may have acted as the stimulators for pursuing
such a case.The second aspect highlights the specific individual traitsthat playa major role in driving a few
women towards change in the societysuch as motivation, personality types andleadershipquality.Moreover,
to understandthe role ofcertain important variables/ influencing factors such as levelof education, socialand
economic background of the plaintiff herein theMuslimwomen in determining the motivation,personality
types of women who are leaders in this social change and innovation.And also how thesewomenin society
can act as leaders and change agents in the societal context. This we believecanplay apivotal role in the
upliftment ofMuslimwomen inIndiaand all women in general.Finally, the studyconcerns thepractical
implementation of the law passed by the supreme court ofIndia prohibiting the practice of instanttriple talaq.
Even though theSupreme Courthas declared Section-2 of the Shariat act 1937 as void(Shayara Banovs
Union of Indiaand others, 22nd August 2017), the government or the legislature has to oversee that the law is
implemented in its true essence.
Stanford business school has defined”Social innovationis the process of developing and deploying effective
solutions to challenging and often systemicsocialand environmental issues in support ofsocial progress.1″
Cajaiba-Santana (2014) explainssocialinnovation and its role as a change based on two perspectives, first, it
analyzes the institutional perspective to argue that social innovation is always related to collective social
action aimed at socialchange. Second,it talks about the structurationperspective to describe how social
innovation is createdas atransformative force through interaction between agents, institutional structures and
social system.In the context of this study,thejudgment by theSupreme CourtonShayara BanovsUnion of
Indiaand others, 22nd august 2017,annulling instant tripleTalaqis an example of how social innovation can
be achieved through interactionamong the various forces including the changeagents,institutionalstructure

929Devjani Chatterjee,Arbind Samal
International Journal of Engineering Technology Science and Research
ISSN 2394–3386
Volume4, Issue12
andsocial system.Thehonorablecourt in itsjudgment on the above casehas delved upon the sanctity of the
instanttriple talaqbased on its origin in theology and its current day practices.The Supreme Court in its
majority verdicthas made it clear that the right to equality(Article-14-18) reigns supreme over right to
freedom of religion (Article 25-28) on the grounds that any practice which does not provide reasonable
ground for reconciliation isarbitrary in nature and hence deemedSection-2 of the Shariat Act 1937 governing
theMuslimpracticewith regards to marriage,inheritance of property andtalaqasvoid.This we believe has
createdprecedencefor things to follow in the context ofIndian society when it comes to religious practices.
The various courts inIndiahavepassed judgments pertaining to different aspects of the instanttriple talaq.
The court ruledthatMuslimmen cannot invoke instanttriple talaqunilaterally (Shamim Aravs.StateofU.P.
& Anr on 1 October,2002)and the judgmenttherein isconsideredasthe law for passing the historic
judgement(Shayara Banovsunion ofIndiaand Others, 22nd August 2017) on annulling the instanttriple
talaq. Such judgments have been passed from time to time setting the tone for change in society brought upon
by a fewMuslimwomen who have challenged the prevailing practices in theirsociety. The right to
maintenance and inheritance of property rights in case of a deceased husband is clearly spelt out in favour of
the plaintiff herein aMuslimwife by the Bombay high court (Ma Mivs..Kallander Ammal on 1 November,
Therealms of this paper also havethe scope to study thebackgroundsofthesewomen who have been trying to
bringabout the change intheir societyand its practices towards theMuslimwomen at large.
Aafreen Rehman an MBA Graduate got married in the year 2014 through a matrimonial portal. She alleged
that her inlaws harassed her for dowry and later she was sent to her parental house only to receive the letter of
instanttriple talaqby speed post on January 2016(Aafreen Rehman vs Union of India and others, Writ
Petition(C) No. 288 of 2016). Aafreen has been fighting for justice and the rights ofMuslimwomen since
then.Gulshan Parveen of Rampur in Uttar Pradesh filed a petition in Supreme Court asking for abolishing
triple talaq. In 2015, she allegedthather husband sent her aTalaqnama on a Rs 10 stamp paper when she was
at her parents’home.The English literature postgraduate said she was subjected to domestic violence by him
for dowry for over twoyears(Gulshan Parveen vs. Union of India and others, Writ Petition(C) No. 327 of
2016). Ishrat Jahan aresident of Howrah in West Bengal,Ishrat Jahan was divorced by her husband Murtaza
through a phone callfrom Dubai.In April 2015, her husband of 15 years, Murtaza, called and uttered thetalaq
word thrice. Murtazahad allegedly married another woman and took away hisfour children with him(Ishrat
Jahan vs. Union of India and others, Writ Petition(C) No. 665 of 2016). Atiya Sabri, a resident of Sahranpur in
Western Uttar Pradesh was married to her husband Wajid Aliin the year 2012. Later she received the letter of
instanttriple talaqon a piece of paper which was sent to her brother’s office on November 2015(Atiya Sabri
vs. Union of India and others, Writ Petition(C) No. 43 of 2017).
Thus we see that in all the above cases the talaq was one way and did not provide any time or opportunity to
the plaintiff to settle any dispute affecting their marriage.
All theMuslimwomen mentioned above come from differentand diverse backgroundfighting for a common
agendaseekingjustice for themselves and foralltheMuslimwomen inIndia. Thefuture scopeof thestudy
would encompass the individual qualitiesof the womenwith respect to their level ofmotivation,personality
types and leadership quality which are essential to leading a change in society and ultimately leading to new
set of social innovation in the country.Webelieve further research in the relevant area can help scholars to
understand the dynamics of social innovation betterthan it is understood now.
The proposed research framework of this study will be qualitative in nature and will mainly include two
factors involving an individual. First, concerning the social status of these Muslim women fighting for social
justice and second the individual traits of these women such as their attitude, motivation level, personality
type and their leadership traits and skills (please refer to Fig. 1).

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930Devjani Chatterjee,Arbind Samal
International Journal of Engineering Technology Science and Research
ISSN 2394–3386
Volume4, Issue12
For this purpose, qualitative research technique like in-depth interview will be used and convenience sampling
method will be applied to collect data. This technique is helpful because of its cost effectiveness and ease of
reach. The scope of framework also includes interviewing the petitioners involved in the above mentioned
cases oftriple talaqand other stake holders and also using snow ball sampling technique for obtaining further
respondents involved in such cases.
Thepaper through itsdiscussion indicatesthat thepractice oftriple talaqamong theMuslimcommunity and its
impact on theMuslimwomen is all pervasive now. TheSupreme Courtthrough its verdict(Shamim Ara vs.
StateofU.P.& Anr on 1 October, 2002)has already clarifiedthatany practice which does not provide
reasonable scope for reconciliation andarbitrationis not considered as reasonable practice and hence its
practice is deemed to be against the natural course of justice. Although the supreme court , passed its land
mark judgment on 22ndAugust 2017 on thetriple talaqissue(Shayara Bano vs. Union of India and others,
22nd August 2017), but a greater problem that remains to be addressed is its implementation. In the absence
of proper legislation the law enforcing agenciesdo not have the powerorthe requisite guidelines to deal with
cases that violate the law. This however is going to change once the Indian parliament clears the bill ontriple
talaqin the current winter session of 2017starting December. Once this bill iscleared inboth the houseof
parliament,the country will have a firm legislation to look into cases dealing withtriple talaq.
The paper also highlights certain importanttraits of theseMuslimwomensuch astheirindividualmotivation,
leadership trait,personality type and the attitude needed to bring about the social change in the face of
adversity.This is important in consideration of the fact that theseMuslimwomen come from diverse social
background and have been actively fighting for the rights ofMuslimwomen inIndia.
The future scope of studyincludes datacollection from a sample consisting of respondents belonging to the
Muslimwomen coming from diverse background. The sample will befromdifferent socio economic
background of the women concerned withtriple talaqcases. Future scope of study in this paperalso includes
Fig. 1:Conceptual Model:Factors considered in the study

931Devjani Chatterjee,Arbind Samal
International Journal of Engineering Technology Science and Research
ISSN 2394–3386
Volume4, Issue12
study ofhuman traits such as attitude, motivation level,and personalitytype of women who are the new
change agents. We believe this study willalso helpfuture researchers to understand the new changing
dynamics of the Indian society especially theMuslimwomen and laws governing their personal practices.
?Aafreen Rehman vs Union of India and others, Writ Petition(C) No. 288 of 2016.
?Atiya Sabri vs. Union of India and others, Writ Petition(C) No. 43 of 2017.
?Cajaiba-Santana, G. Social Innovation: Moving The Field Forward. A Conceptual Framework.Technological
Forecasting And Social Change,V. 82, P. 42-51, 2014.
?Gulshan Parveen vs. Union of India and others, Writ Petition(C) No. 327 of 2016.
?Ishrat Jahan vs. Union of India and others, Writ Petition(C) No. 665 of 2016.
?Ma Mivs..Kallander Ammal on 1 November, 1926.
?Sarabaivs.Rabiabai on 9 December, 1905.
?Shamim Aravs.State Of U.P. & Anr on 1 October,2002.
?Shayara bano vs. union of India and others, 22nd august 2017.
?All cases referred fromwww.Indiankanoon.org