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Gujarat National Law University

FAMILY LAW - I REASEARCH PROJECT: TRIPLE TALAQ

Submitted by-

Submitted to-

Shashank Shekhar Singh (18B113)

Mrs. Garima Goswami Assistant Professor of

Law, Director, GNLU centre for Banking and Financial laws Gujarat National Law University

1

Table of Contents

Table of Contents.......................................................................................................................2 Table of Authorities...................................................................................................................3 1.

Abstract...............................................................................................................................4

2.

Introduction.........................................................................................................................4

3.

What is Triple Talaq?.........................................................................................................4

4.

History and origination of Talaq-e-biddat..........................................................................6 4.1

WORLD......................................................................................................................6

4.2

INDIA..........................................................................................................................6

5.

Triple Talaq and Quran: valid or invalid............................................................................7

6.

Shayara Bano v. Union of India..........................................................................................8 6.1

Facts.............................................................................................................................8

6.2

Issues...........................................................................................................................9

6.3

Judgement....................................................................................................................9

7. 10

Current Stance…………………………………………………...………………………

8. Muslim Women (Protection of Rights on Marriage) Act, 2019........................................ …...10 9.

Conclusion........................................................................................................................11

Annexure……………………………………………………………………………….. …….12

2

Table of Authorities

Cases 1. Shamin Ara v. state of up, (2002) 7 SCC 518................................................................9 2. Shayara Bano v. Union of India, (2017) 9 SCC 1......................................................4, 5 Statutes 1. Dissolution of Muslim Marriage Act, 1954...................................................................8 2. The Indian Constitution..................................................................................................9 3. Muslim Women (Protection of Rights on Marriage) Act, 2019…………………………………10

Other Authorities 1. Anusha Soni ‘In landmark verdict, instant triple talaq declared illegal by SC, Parliament asked to make law within 6 months’ India Today (Delhi, 22 August 2017) …………………………...9 2. Athar Ahmad, The women who sleep with a stranger to save their marriage, BBC Asian Network & Victoria Derbyshire Programme (UK), April 5, 2017......................6 3. Avantika Tiwari, Triple Talaq- Counter Perspective with specific reference to Shayara Bano, 1 ILI L Rev 86 (2017)...........................................................................5 4. Bhavya Bhati & Saksham Mishra, Oppression, patriarchy and its legitimacy- A case for Triple Talaq, 4 KIIT Student L Rev 8 (2017)..........................................................5 5. Dr. Naima Haq, Talaq: A Modern Debate, 6 DULJ 33 (1995).....................................6 6. Muhammad Munir, Triple Talaq in one session: An analysis of the opinions of classical, medieval and modern Muslim jurists under Islamic law, 27 Arab Law Quarterly 30 (2013)........................................................................................................5 7. Prabhash K Dutta, Instant triple talaq outlawed but triple talaq still valid, here is the difference, India Today (New Delhi), August 10, 2018...........................................................................10 8. Syed Mohammed, Hanafi Jurisprudence sanctions Triple Talaq, Times of India (Hyderabad) August 23, 2017........................................................................................4 9. The Supreme Court of India...........................................................................................8 10. ‘Triple talaq bill stuck in Rajya Sabha’ Times of India (22 August 2017)……………. …...9 Treatises 1. H K Saharay, Family law in India 167 (2011)...............................................................4 2. The Quran......................................................................................................................6

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1. Abstract

As law is a live subject, it keeps on changing. Gender justice, gender equality and human rights, all play vital role in developing the laws. Customs which may be prevalent in the older times may be struck down in today’s world as what was acceptable or not acceptable earlier may not be acceptable or may be acceptable in today’s world. It is not necessary that customs which is being followed for 1400 years would still be followed like Sati, which was a common practice in Hindus earlier, in which the wife of a dead man is compelled to burn alive, is declared against human rights and is totally banned in India. This is how custom becomes good source of making laws in today’s world.

2. Introduction

After Christianity, the followers of Islam is the second highest in the whole world. Sunnis & Shias are the two sects under Mahomedan law.1 This custom of making divorce irrevocable by pronouncing ‘Talaq’ three times is followed in Sunni sect of Mahomedan law.2 After series of cases in the Hon’ble Supreme Court of India and many other High Courts of Indian States, finally, in 2017, in the case Shayara Bano v. Union of India3, decided by the multireligion five-judge bench (with the majority of 3:2), triple talaq or Talaq-e-biddat or Talaq-ibadai4 was declared void as it was against the Quranic principles, and something which is against Quranic principle is bad in law.5 But, what is triple talaq, how do you define it? Why and how was it originated in the world as well as in India? How Quran defines the sanctity of marriage or whether it supports this kind of divorce. This all questions will create the base on triple talaq through which we will analyse the judgement passed by the Hon’ble Supreme Court of India. We will also discuss the cases referred to while passing that judgement.

3. What is Triple Talaq?

Under the Mahomedan law, a Muslim marriage is considered to be a contract (Meesaaqan Ghaleeza) which can be dissolved by will of the husband (Talaq) or consensus on divorce by both husband and wife (Khula) or by getting a judicial decree (Faskh-e-nikah) or by will of the wife (Tafweedh-e-talaq).6 Under Islam, two forms of Talaq is present.7

H K Saharay, Family law in India (2011). Ibid 3 Shayara Bano v. Union of India, [2017] 9 SCC 1. 4 Avantika Tiwari, ‘Triple Talaq- Counter Perspective with specific reference to Shayara Bano’ (2017) Vol. 1 ILI Law Rev http://ili.ac.in/pdf/paper517.pdf > accessed on 21 September 2020. 5 Shayara (n 3). 6 Saharay (n 1). 7 Munir, Muhammad, ‘Triple Talaq in one Session: An Analysis of the Opinions of Classical, Medieval and Modern Muslim Jurists under Islamic Law’(2011) Vol. 27 Arab Law Quarterly   accessed on 22 September 2020. 1 2

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TALAQ

Talaq-ul-sunnah (Revocable)

Talaq-ul-ahsan (most proper)

Talaq-e-biddat (Irrevocable)

Talaq-ul-hasan (proper)

Triple Talaq which is Talaq-e-biddat,8 is mainly practiced by Sunni Muslims, especially those who adhere to Hanafi Sunni Islamic schools of jurisprudence.9 If a Muslim man, pronounces ‘talaq’ three times in one go then, even without there being any reasonable ground, the marriage is dissolved.10 It is an irrevocable form of talaq which does not give any chance of truce to the divorced couple.11 Divorce can only be revoked, if the wife marries another man, consummates that marriage and get a divorce from that man to remarry her last husband.12 This is called ‘Nikah Halala’.13 This way of divorcing the wife was never supported by the Prophet Muhammad.14 He said that ‘biddat’, the meaning of which is ‘innovation’, is not in conciliation with the religious matters of Islam and that, which is not in conciliation with the matters of Islam, should be rejected. 15 He also says that, according to the holy book of Islam, ‘Quran’, a couple should have their marriage revoked only after proper consultation and attempts of reconciliation, but if the dispute is not solved and if a husband has divorced his wife twice, than after that, the husband has to either accept his wife or get irrevocably separation from his wife and the husband would have to let his wife free with utmost gentleness.16

Shayara (n 3). Syed Mohammed, ‘Hanafi Jurisprudence sanctions Triple Talaq’ Times of India (Hyderabad, August 23, 2017) accessed on 22 September 2020. 10 Bhavya Bhati & Saksham Mishra, ‘Oppression, patriarchy and its legitimacy- A case for Triple Talaq’[2017] Vol. 4 KIIT Student Law Rev. 11 Ibid. 12 Athar Ahmad, ‘The women who sleep with a stranger to save their marriage’ BBC Asian Network & Victoria Derbyshire Programme (UK, April 5, 2017) accessed on 23 September 2020. 13 The Quran, Sura II, s29, verse 30. 14 n 12. 15 n 9. 16 (n 13) s29 verse 229. 8 9

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4. History and origination of Talaq-e-biddat

4.1 WORLD

The concept of Triple Talaq was not initially present in Islam. When the Omayyad kings, were on the quest to conquer other gulf counties, they often used to enslave men and women from these countries (esp. from Syria, Egypt and other places) 17. The women from these countries were very attractive and beautiful, and the Arab man were often captivated by their beauty. They wanted to marry them but these women were not used to living with co-wives, so they asked these men to irrevocably give three divorces to their present wife. 18 But these women didn’t know that three divorce, as per Quranic Law and Sunna, meant only one divorce.19 The Arab man used to give three divorces or pronounced Talaq thrice to their wives just for the satisfaction of these women and later they continued their marriage with their older wife.20 This led to many dissensions. So ultimately, the Hazrath of Arab, Caliph Umar, thought that it was need of an hour to make three divorces or saying Talaq in one sitting an irrevocable divorce.21 Since then, this practice has become prevalent in the Sunni sect of the Islamic community.

4.2 INDIA

Since traditional times, triple talaq was disapproved by many Islamic jurists but it was a legally valid, form of divorce. Early Muslims which came to India brought this custom to India and when the British came they made personal laws for all the Muslims living in India, i.e. Muslim Personal Law (Shariat) Application Act, 1937, to regulate their affairs. 22 People who professed Islam were also regulated by their customs and usage in India. 23 Also, to uplift the rights of the Muslim women, the British passed Dissolution of Muslim marriage Act, 1939. It has various provisions which talks about divorce in Islam. This has also discussed triple talaq. Muslim consider marriage as their private affair. As Muslims in India are governed by their own personal laws and customs, it is not necessary for them to register their marriages under Special Marriage Act, 1954.24 By this, even though it was arbitrary on the part of Muslim husband to divorce such way, the government could not interfere in this matter like in other countries, so this practice of Talaq-e-biddat kept on prevailing. This is how the concept of triple talaq built its base in India and was not declared invalid, even after, the independence of India, until now when it is actually declared invalid by the Hon’ble n 9. Dr. Naima Haq, ‘Talaq: A Modern Debate’ [1995] 6 DULJ 33. 19 Ibid. 20 n 18. 21 n 18. 22 Shayara (n 3). 23 Ibid. 24 n 3. 17 18

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Supreme Court of India, which took the matter by vehement opposition by the women rights groups and individual petitioners.

5. Triple Talaq and Quran: valid or invalid

The Quran is the holy book of Islam.25 It is believed by the Islamic people that ‘Allah’, the god of Islam, revealed Quran to Prophet Muhammad.26 It has many verses which deals with marriage, divorce and inheritance. The chapters in the Quran are named as Sura, each sura has verses which are present in sections. Chapter 2 or Sura II has verses which talks about sanctity of marriage and how attempts of reconciliation is very essence of Quranic principles. ‘In verse 22227 and 22328, it is written that a husband should be very polite and considerate with his wife, and should always have mutual consideration for whatever he does. Even while consummating the marriage, the husband should be wise and kind so as to not to injure his or exhaust his wife.’29 These verses also suggests that, men are often a bit harsh with their wives but they should give all the considerations if the matter is of their ‘health, both spiritual and mental’.30 This verses extensively talks about how a good and healthy relationship should be there between husband and wife. In verses 22631 and 22732, it is written that there will be times when discrepancies would arise between a husband and wife, but the husband should not straight away divorce her wife. They should wait for a period of four months only to see if reconciliation is possible. If they are against reconciliation, then the husband should not keep his wife as it would be unfair for the wife. Although, Allah defines divorce as the worst and most hateful action between husband and wife, but, if such a situation arises, then, only divorce should be the equitable and fair recourse. Verses 22933 and 23034 in section 29, 23235 and 23336 in section- 30 and 23737 in section- 31 of sura II, talks on divorce.38 All these verses confirm that divorce is allowed in Islam. There is possibility that, after giving divorce, the husband may regret his decision and may unite again but again divorce takes place. To avoid this kind of frequent unification and separation a limit of two divorce was created. To say it in simpler words, after giving divorce to the wife there is a certain time period (Iddat) in which both husband and wife could think over their decision. If they want to be together again, they can. If, even after Iddat, the husband gives divorce, both the husband and wife will have second Iddat period. After Ibid. Ibid. 27 (n 13) s28, verse 222. 28 (n 13) s28, verse 223. 29 Ibid. 30 Ibid. 31 (n 13) s28, verse 226. 32 (n 13) s28, verse 227. 33 (n 13) s29, verse 229. 34 (n 13) s29, verse 230. 35 (n 13) s30, verse 232. 36 (n 13) s30, verse 233. 37 (n 13) s31, verse 237. 38 Shayara (n 3). 25 26

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completion of this Iddat period, they won’t have any other option than to decide either to stay or to get separated. In a nutshell, after giving two divorces, husband and wife can reconcile but if not, then they won’t have another chance to get back together. It can only happen, as given in verse- 230, if the wife marries another man, consummates that and get divorced the new husband to remarry the older one (Nikah Halala).39 Perusal of aforementioned verses only indicates that in Islam marriage is considered as something which has a sacred value. It should not be broken easily. They believe in reconciliation. Also, Islam also takes care of the emotions and feelings of women. They totally disallow the concept of one sided and talaq without any chance of reconciliation or the concept of triple talaq or Talaq-e-biddat is totally a foreign concept in Islam. Islam does not support it as it do not provide reconciliation. There is no verse in Quran which defines Talaq-e-biddat, or it as a form of divorce.

6. Shayara Bano v. Union of India

This is a historic case in which the multi-faith five- judge bench of the Hon’ble Supreme Court of India declared that instant triple talaq is unconstitutional. It is against Article- 14 (equality before law), Article- 15 (protection against discrimination) and Article- 21 (protection of life and personal liberty) of the Indian Constitution. 40 Also, that Talaq-e-biddat is not significant and is not integral to Islam and is not covered in the ambit of Article- 25(1) (freedom of religion) of the Indian Constitution.41

6.1 Facts

Shayara Bano, the petitioner, was divorced by her husband- Rizwan Ahmad by saying ‘Talaq, talaq, talaq’ in front of two witness, Mohammed Yaseen and Ayaaz Ahmad on 10.10.2015.42 It was her contention that triple talaq or Talaq-e-biddat given by her husband be declared void-ab initio and Talaq-e-biddat, which terminates the marriage arbitrarily and unilaterally under Section- 243 of the Dissolution of marriage Act, 1954, be declared void. It was submitted before the court that this practice of irrevocably terminating marriage without any chance of reconciliation is not something which is sacred to the Muslim religion. It cannot be protected under articles of freedom of religion in the Indian Constitution. Submissions were also made regarding violation of fundamental rights of Shayara Bano under the aforementioned sections. Also, this practice has been banned in many other Muslim dominated countries, which says that this practice is not part of Shariat (Muslim personal law). 44

n 13. The Indian Constitution 1950, (A- 15, 16 & 21). 41 n 40 (A25(1)). 42 Ibid. 43 Dissolution of Muslim Marriage Act, 1954, s2. 44 Shayara (n 3). 39 40

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The respondent, in his defence submitted that due to ongoing conflicts between him and his wife, Shayara Bano, his wife was not living with him and after due attempts of getting her back from her father’s home, she didn’t came back. So he sent a notice as required under the Dissolution Act as Talaq-nama. After which, he pronounced Talaq-e-biddat to his wife. Which should be valid, the suit should not be maintainable.45

6.2 Issues

There were mainly two issues in front of the multi-faith five-judge bench1. Whether the practice of Tala-e-biddat, integral to the Muslim religion practices, as if it is not an inessential practice then the state could ponder over the matter and may struck it down if deems fit or otherwise.46 2. Whether Talaq-e-biddat valid?47 6.3 Judgement

In the majority judgement of 3:2, the court held that this practice of triple talaq was never an integral part of their religious practices. Also, there is no mention of such practice in the holy books of Islam, Quran and Hadith. As per Quran, there a proper divorce should have attempts of reconciliations first. When all such attempts to save the matrimony is failed then only will be justifiable to divorce the wife. The Quran also says that men should not do anything which injures or exhausts women, whereas this practice of triple talaq do not give any chance to the wives to talk and solve the matter. It is an arbitrary practice and must be struck. It was also held that whatever is against Quranic principles is against Shariat, and therefore what is bad in theology cannot be good in law. 48 Special reference was also given to the Shamin Ara v. State of UP.49 In this case also it was held that triple talaq is contrary to theology and which makes it against law, so it should be struck down, ignoring the fact that it is followed by large number of people.50 It was also held that violates Article- 14, 15 and 21 of the Indian Constitution, as in this practice women do not have any say in deciding divorce like in the other religions. Also, that it can be practiced on whims and fancies of the husband which is violation of right to equality. Discussion on what could be considered as essential religious practices was also done. Merely, that there is no prohibition on some practice does not make the practice integral to that religion, that practice should be the foundation of the religion or if it is taken away it causes to affect the religion majorly then we could conclude that such practice is Ibid. Ibid. 47 Ibid. 48 Ibid. 49 Shamin Ara v. State of UP, [2002] 7 SCC 518. 50 Shayara (n 3). 45 46

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integral religious practice. And only practices which is integral to the religion, is protected by Article- 25 of the Indian constitution. In the minority judgement given by the then Chief Justice of India51, Justice JS Kehar, this practice was viewed as an integral part of the Muslim religion but it was an integral part then why would majority of the Muslim dominated countries ban it. This practice was declared sinful by the religious text itself, if it were an essential practice of Islam then why would Quran declare it sinful.

7. Current Stance In 2017 after about 7 pleas had been filed by various parties and about 5 separate petitions by Muslim women the Supreme Court during the summer vacation conducted a six day hearing to finally decide on the legal validity and constitutional validity of the practice of Triple Talaq or Talaq-e-biddet. On August 22 the five judge bench consisting of J. UU Lalit, J. Abdul Nazeer, J. Kurian Joseph, J. R F Nariman and then Chief Justice of India JS Khehar declared Talaq-i-biddet unconstitutional with a ratio of 3:2.52 With this judgement the practice of instant Triple Talaq in one sitting became illegal and unconstitutional. The Apex court also declared a blanket ban on the same for 6 months and instructed the government to make a suitable law on the same. The government brought in a bill for the same in December during the winter session of the parliament. While it was passed by the Lok Sabha it failed to pass in Rajya Sabha. This happened again in the year 201853 but due to unabated practice of Triple Talaq the government brought on an ordinance to stop it. The same ordinance for renewed by the approval of president again in 2019 until finally the bill was passed in both the houses and after approval of the president became a law on 31st July 2019.

8. Muslim Women (Protection of Rights on Marriage) Act, 2019 In 2019 the government came up with the Muslim Women (Protection of Rights on Marriage) Act, 2019 or the Triple Talaq bill. This officially made instant triple Talaq an illegal practice. Some of the important provisions of the act are listed below. 1. Any pronouncement of Talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.54

The Supreme Court of India accessed on 23 September 2020. Anusha Soni ‘In landmark verdict, instant triple talaq declared illegal by SC, Parliament asked to make law within 6 months’ India Today (Delhi, 22 August 2017) accessed on 23 September 2020. 53 ‘Triple talaq bill stuck in Rajya Sabha’ Times of India (22 August 2017) https://timesofindia.indiatimes.com/india/triple-talaq-bill-stuck-in-rajya-sabha/articleshow/67460442.cms> accessed on 23 September 2020 54 Muslim Women (Protection of Rights on Marriage) Act, 2019, s 3. 51 52

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2. Any Muslim husband who pronounces Talaq upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.55 3. A married Muslim woman upon whom Talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for her and dependent children, as may be determined by the Magistrate.56 4. A married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of Talaq by her husband, in such manner as may be determined by the Magistrate.57 5. An offence punishable under this Act shall be cognizable, if information relating to the commission of the offence is given to an officer in charge of a police station by the married Muslim woman upon whom Talaq is pronounced or any person related to her by blood or marriage.58 6. An offence punishable under this Act shall be compoundable, at the instance of the married Muslim woman upon whom Talaq is pronounced with the permission of the Magistrate, on such terms and conditions as he may determine.59 7. No person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom Talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person.60

9. Conclusion

There are many customs which could violate basic tenets of human rights like female genital mutilation, etc. but until a step against them is not raised and people are not made aware of them nothing can be done against it. If people like Shayara Bano and many other didn’t have raised their voices and fought for their rights, this sinful practice would not be declared unconstitutional and invalid. It is really important for each and every one to raise voice against violation of their rights. Also, judgements like this helps to restore the trust among people for Indian judiciary system. The feeling that there is some institution through which people could restore their rights, encourages people to be more vigilant and it becomes more approachable for each and every one. After, triple talaq was declared unconstitutional by the Hon’ble Supreme Court of India, the government with some deadlocks with the opposition manged to bring a proper legislation in force to stop this violation of human rights as the husbands can no longer continue to practice triple talaq since there is a law to give them punishment for this. In 2017, ‘Triple Talaq Bill 55

(n 54), s 4. (n 54), s 5. 57 (n 54), s 6. 58 (n 54) s 7(a). 59 (n 54) s 7(b). 60 (n 54) s 7(c). 56

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or the Muslim Women (Protection of rights against marriages) Bill, 2017 was tabled in the Parliament and after some tussle its successor with the same name managed to become a law. This Bill clearly defines the terms and conditions, and the punishment for this practice. Hence, it can be seen that though such judgements encourage and motivate people to approach the Indian courts to seek redressal but until and unless all the three pillars of the Indian Constitution, i.e. Judiciary, Legislature and executive, would not function together such practices would not be curbed, rather people who practice such kind of customs would be motivated by thinking that even if judges give verdict against their custom they would not be liable unless some law is there and such people will keep on violating rights of other people, especially women.

Summary

This project aims to understand the practice of Triple Talaq and its subsequent illegality with respect to Indian legal system. Triple talaq is an inhumane and misogynistic practice that has been there for quite some time. It is a practice widely accepted in the Sunni Muslim community especially those following the Hanafi Islamic Jurisprudence. After a thorough study of Quran it can be confidently said that no such practice is mentioned in it. According to some other texts Muhammed himself was opposed to this practice and considered the marriage to a sacred bond that must be protected at all costs. Its origins begin with the when the Omayyad kings, started their quest to conquer other gulf counties. With the conquests came the enslavement of both men and women. These women were very beautiful and many of the Arabs wanted to marry them. However these women were not used to living with cowives, so they asked these men to divorce their present wives. The Arab man used to give three divorces or pronounced Talaq thrice to their wives just for the satisfaction of these women and later they continued their marriage with their older wife. This led to many dissensions. So ultimately, the Hazrath of Arab, Caliph Umar, thought that it was need of an hour to make three divorces or saying Talaq in one sitting an irrevocable divorce. That’s how it became a practice in Islam. This was carried on for quite some time in Islam and the first Muslims brought the practice to India. After the British occupation the British created a personal law board for the Muslims which didn’t allow them to stop or re-configure this practice. After the independence the Special Marriage Act, 1954 allowed the Muslims to not register their marriages since they had their own personal law board. By this, even though it was arbitrary on the part of Muslim husband to divorce such way, the government could not interfere in this matter like in other countries, so this practice of Talaq-e-biddet kept on prevailing. This is how the concept of triple talaq built its base in India. In 1978 this practice came to the notice of the judiciary under the Shah Bano Begum case. The apex court struck down the practice as grossly inhumane and disallowed it. However the 12

then Prime Minister Rajiv Gandhi managed to get neutralize this judgment by passing a bill in the Lok Sabha. Once again the Muslims wives were at the mercy of their husbands. Again in 2012 this practice came to the national attention by the Shayara Bano case which was another instance of triple talaq. This time through a long trial and after considering various evidences and texts the Supreme Court declared it illegal yet again. This time the government willing to actually help the women introduced a bill to stop the practice. After a 2 year tussle with the opposition the bill was finally passed, making this practice illegal in the eyes of law and saving thousands of women from unknown horrors.

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