The document summarizes a case study on triple talaq submitted to a professor. It provides background on different types of talaq (divorce) in Muslim personal law. It then discusses how the triple talaq case relates to historical school/customary laws and analytical school/statutory laws. It outlines the Supreme Court judgment which held triple talaq unconstitutional as violating the right to equality. It calls for the government to curb this practice through policy and education.

1. CASE STUDY ON TRIPLE TALAQ
SUBMITTED TO:
MS. SWATI RAI
PRESENTED BY:
SWASTI CHATURVEDI
B.B.A. LL.B. IV SEM
SEC: ‘B’
SUB: JURISPRUDENCE

2.  Jurists have made their efforts to define law, its sources and
nature.
 The term jurisprudence has been derived from the Latin
word ‘jurisprudentia’ which means ‘skill or knowledge of
law’.
 The scope of jurisprudence has widened considerably over
the years.
 Jurisprudence also has its practical applicability.
 Jurisprudence has also great educational value.
 Jurisprudence helps the judges and lawyers in ascertaining
the true meaning of the laws passed by the Legislature by
providing the rules of interpretation.
 With the advancement, a new socio-legal philosophy based
on social engineering and judicial activism has emerged for
the fulfillment of the needs of society.

3.  HISTORICAL SCHOOL:
The historical school was founded by Friedrich Karl von
Savigny. The exponents of historical school take social
institutions in their sequence with primacy to primitive
legal institutions of the society.
 CUSTOMARY LAWS:
They came with the society. They are regarded as the
founding stone of the legal system and basis of law.
Customs consist of rules of conduct which are generally
observed. According to Salmond, “Custom is the
embodiment of those principles which have commended
themselves to natural conscience as principles of truth,
justice, and public utility.”

4.  ANALYTICAL SCHOOL:
The term 'positivism' was invented by Auguste Comte, a
French thinker. The purpose of analytical jurisprudence is
to analyse the first principles of law without reference
either to their historical origin or development or their
validity.
 STATUTORY LAWS:
Statutory law is law that’s written by a legislative body. It’s
law that a government deliberately creates through elected
legislators and an official legislative process. It’s up to the
judiciary to interpret and enforce statutory law, but the
judiciary can’t create statutory law.

5. Talaq is divided mainly into following categories as
Muslim Personal Law:
1. Talak-ul-Sunnat
a. Ahsan
b. Hasan
2. Talak-ul-Biddat
3. Ila
4. Zihar
All the above stated types of Divorce are valid in
Islamic law however, it is Talak-ul-Biddat which is the
issue of controversy. This is known as Triple Talaq.

6.  Talak-ul-Biddat is although banned in Shias. However, in
Hanafi School it is thought as sinful but is practiced by a
large Muslim community.
 In this type of Talaq, the husband does not follow the
approved form of Talaq i.e. Talaq-ul-Sunnat and he neither
waits for Iddat period nor to the abstention from sexual
intercourse. This was an escape route developed by the
Islamic patriarchal society to avoid their marriage.
 In this form of Divorce, husband repudiates his wife by
three divorces in one sentence.
 The biggest problem with this type of talaq is that it is one
of the irrevocable nature unlike its counterparts.

7. 1. HOW TRIPLE TALAQ CASE IS RELATED TO
HISTORICAL SCHOOL & CUSTOMARY LAWS?
 Triple Talaq as a religious faith is in relation to customs
& historical school.
 The Supreme Court focuses on to liberate women from
the coercive chains set by the males.
 In the judgment, it is said that only the State can
bring changes in the domain of personal law through
legislation within permissible limits of Article 25 and
trump the interest of religious freedom.

8. 2. HOW TRIPLE TALAQ CASE IS RELATED TO
ANALYTICAL SCHOOL & STATUTORY LAWS?
 Justice Joseph is of the opinion that the 1937 Act,
having declared Shariat to be the law applicable to
Muslims, had essentially left it to the judges to find out
what the Shariat said on an issue.
 The Supreme Court has paralyzed triple talaq by
declaring it as unconstitutional. This means that no
more these three words will be able to invalidate the
marriage.
 There is a creation confusion on the constitutional
status of personal law, and misses a great opportunity
to elaborate on the constitutional vision of justice for
women from minority religious groups.

9. BEFORE THE HON’BLE SUPREME COURT OF INDIA
 With 3:2 majority
 Jagdish Singh Khehar
 Kurian Joseph
 Rohinton Fali Nariman
 Uday Umesh Lalit
 S. Abdul Nazeer
 Date of Judgment: August 22nd , 2017
The majority judgment was written by Justice Nariman for
himself and on the behalf of Justice Lalit, while Justice
Joseph concurred by the majority opinion Chief Justice
Khehar for himself and on behalf of Justice Nazeer wrote
the minority opinion.

10.  Shayara Bano was married for 15 years. In 2016, her
husband divorced her through talaq–e-biddat (triple
talaq).
 She filed a petition before the Supreme Court seeking
a declaration that the practices of ITT, polygamy, and
nikah halala in Muslim personal law were illegal,
unconstitutional, and in violation of Articles 14
(equality before law), 15 (non-discrimination), 21
(right to life with dignity) and 25 (right to freedom of
conscience and religion) of the Indian Constitution.

11.  Is Talaq-e-Biddat Islamic in nature?
 Whether the Muslim Personal Law (Shariat) Act, 1937
confers statutory status to the subjects regulated by it
or is it still covered under “Personal Law” which is not
“law” under Article 13 of the Constitution as per
previous Supreme Court judgments?
 Is it protected by Article 25 of the Constitution?

12.  The Supreme Court held the practice of Triple
Talaq unconstitutional.
 Under Article 25 of the Constitution the State cannot
take away the essential religious practice of a person.
 Therefore, if a practice which is arbitrary and not an
essential religious practice it will be hit by the
exception laid down u/a 25.
 The said practice is in violation of the Fundamental
Right of Equality (Article 14) since it is against the
rights of women as they have no say in the declaration
of divorce unlike in other religions.

13.  The government has shown a stern and an
uncompromising attitude towards felonious practice
involving extreme harassment onto the women.
 However, it is required that the government must
bring into limelight the policies curbing this menace
as soon as possible.
 The government must allocate the responsibility over
to some organisations which must work to educate the
women about various laws that have been enacted to
protect their rights and to encourage them to speak
against the undue behaviour of the husbands.