THIS ARTICLE WAS WRITTEN BY SALONI SHARMA, A STUDENT OF ICFAI LAW SCHOOL, HYDERABAD.
INTRODUCTION
PURPOSE:The purpose of the project is to analyse Triple Talaq thoroughly from the origin and till the present use. Triple talaq is the current socio-legal topic which questions the legality of this practice and questions the equality promised under Constitution. . The project will highlight the various reasons to take down this inimical practice of divorce and the steps to remove it from the society. The purpose of Talaq-i-biddat has been overthrown by the patriarchy of Muslim society in India leading to devastating consequences. Thus, the unconstitutional and un-islamic way of divorce must be abolished.
GOALS : The project will accomplish the following goals:
- Understanding the concept of Talaq in Muslim Law
- Briefly understanding the various modes of Talaq
- Understanding the concept of triple talaq and its consequences
- Briefly understanding the sources of Muslim law : Quran and Sunna
- Understanding the trends of divorce in various Muslim countries
- Briefly understanding Article 25 of The Indian Constitution
- Understanding the concepts of Uniform Civil Code with its pros and cons.
LIMITATION: The Limitations of the SIP which I have undergone are as under:
- The material collected for the report was from the internet, law journals,
Articles and some cases with my advocate.
- Resources were limited.
- The confidential clause was maintained.
METHODOLOGY: The proposed methodology used for the report is the Doctrinal Methodology which includes referring to various legal books, journals, legal web sites to gather knowledge on the subject and the laws relating thereto. The project report also has basis from informal discussions with legal professionals.
TRIPLE TALAQ- INTRODUCTION
Triple talaq is one of the obnoxious practices that have been followed by the Muslim where in pronouncement of talaq word three times leads to dismissal of marriage. It is a custom that is being followed by the Muslims. This Talaq is also known as Talaq-i-Bain. It is a disapproved mode of divorce. A peculiar feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. The Prophet never approved a Talaq in which there was no opportunity for reconciliation.
Therefore, the irrevocable Talaq was not in practice during his life. The Talaq-l-Biddat has its origin in the second century of the Islamic-era
Therefore, the irrevocable Talaq was not in practice during his life. The Talaq-l-Biddat has its origin in the second century of the Islamic-era
HISTORY
According to Asghar Ali Engineer, the Islamic Shariah which was formulated more than hundred years after the death of the prophet , had evolved under complex influences of various civilizations and took away what was given to women by the Prophet and the Quran the issue of triple divorce in one sitting illustrates this very well. It was practiced during the Jahiliyah period (times of ignorance) before the advent of Islam. The triple divorce was not allowed during the Prophet’s lifetime, during the first Caliph Abu Bakr’s reign and also for more than two years during the second Caliph Umar’s[1] time. Later on Umar(RA) permitted it on account of a peculiar situation. When the Arabs conquered Syria, Egypt, Persia, etc.., they found out women there much more beautiful than their own women and hence were tempted to marry them. But those women did not know about Islam’s abolition of triple-talaq in one sitting, and therefore insisted that before marrying them the men should pronounce talaq thrice to their existing wife which they readily accepted to do (as they knew that Islam has abolished triple-talaq and that would not be effective) and even after marrying with the Syrian or Egyptian women they would also retain their earlier wives. When the Egyptian and Syrian women discovered that they had been cheated, they complained to Umar, the Caliph, to enforce triple divorce again in order to prevent its misuse by the Arabs. He had complied with their demands to meet an emergency situation and not with an intention to enforce it permanently, but later on jurists also declared this form of divorce as valid and gave sanction to it. Thus we see that triple-talaq came into being during the second century of Islam when Umayyads[2] monarch, finding that the check imposed by the prophet on the facility of repudiation interfered with the indulgence of their caprice; they endeavored to find an escape route from strictness of law. It must be noted that it was not Quran but the Umayyad practice which gave validity to these divorces.
Position of Triple-Talaq in Quran
In the Holy Quran there is nowhere been ordained the three divorces pronounced in a single breath would amount to three separate divorces. The verse of Quran relied upon is verse 2:229: “Divorce must be pronounced twice and then (a woman) may be retained in honor or released in kindness. And it is not lawful for you that ye take from women aught of that which ye have given them, except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if ye fear that they may not be able to keep the limits of Allah, in that case it is not sin for either of them if the woman ransom herself. These are the limits (imposed by) Allah. Transgress them not. For whoso transgresses the Allah’s limit, such are wrong doers.” Accordingly Imam Razi[3] writes: “Divorce two times, this is, divorce on two separate occasions.” He further says: “A lawful divorce is that given separately because the existence of two is only possible when there is space between once and the other.” Thus it can be said that if two divorces in a same breath cannot be regarded as valid divorce then how three divorces can be treated as valid. Also it has been laid down in holy Quran that when the divorce is given it should be given for the prescribed period of waiting (iddat): “O Prophet when ye (men) put away women, put them away for their (legal) period and reckons the period, and keeps your duty to your Allah, your Lord.” The giving of divorce for the (Iddat) “waiting period” means that the divorce is given at such a time as marks the beginning of Iddat. He who gives three divorces at a time does not take Iddat into consideration because with the pronouncing of first divorce the Iddat starts, but in the case of the second and the third the Iddat has not been taken into account, although for every divorce it is necessary to have regard for the Iddat. In short, there is no Quranic basis to establish that three divorces on a single occasion should amount to an irrevocable divorce. As to deduction of one point from another, it is nearer to the purpose of Quran to treat three divorces as one.
Position of Triple-Talaq in the Traditions of Prophet
There is no express direction in the tradition of the Prophet (PBUH) regarding the validity of three divorces together at one time. Abdullah bin Abbas, a companion of the Prophet said that triple talaq in one sitting was considered as only one talaq during the Prophet’s time, the period of the first caliph Abu Bakr and during the early years of the second caliph Umar (Sahih Muslim, 1482).
Once Rukanah bin Yazid, a companion of the Prophet, had divorced his wife thrice in one sitting. Regretting what he had done, he approached the Prophet, who asked him how he had divorced his wife. Yazid answered that he had done so by pronouncing the word talaq thrice. The Prophet asked him if he had pronounced it in a single sitting, to which he replied in the affirmative. The Prophet then said that it had the effect of one divorce and that he could take his wife back.
Whereas among those tradition which the scholars have quoted in favor of treating triple divorce in same breath as three distinct divorce has no express mention about it and there are other, of which, the circumstances are different, and so, they provide no argument. Some of them are weak or non-authentic. So there is none among those which may be cited as basis of such conclusive argument. Some of them are given below: This tradition relates to ,Uwaimir-Ajlani’ in which the story of Lian has been recorded: “When both (husband and wife) had undergone the procedure of ‘swearing’ Uwaimir said “if I still keep her with me then I shall prove to be a Lian” and again he gave her three divorces before the Prophet (PBUH) had ordered it.” This tradition is often presented to prove that Uwaimir gave three divorces in the presence of Prophet and he did not object it and allowed it. But it is not correct to argue from this tradition, because after Lian there cannot be any re-union and the spouses cannot remarry even if they want. So the three pronouncements were only to emphasize the Lian. Further it has been argued that when Hazrat Umar held these three divorces valid, it was in the presence of companions of Prophet who did not object to it. But the important question to be asked here is that on one hand is the judgment of Hazrat Umar and on the other hand there is practice during the time of Prophet as well as Hazrat Abu Bakr. So how can the practice of Prophet (PBUH) be abrogated, it has to be preferred by all means. Thus on review of all the religious literature it can be authoritatively said that the on the question of effectiveness of tripletalaq, there is no clear commandment in the Holy Quran nor any consensus of the opinion can be proved.
Once Rukanah bin Yazid, a companion of the Prophet, had divorced his wife thrice in one sitting. Regretting what he had done, he approached the Prophet, who asked him how he had divorced his wife. Yazid answered that he had done so by pronouncing the word talaq thrice. The Prophet asked him if he had pronounced it in a single sitting, to which he replied in the affirmative. The Prophet then said that it had the effect of one divorce and that he could take his wife back.
Whereas among those tradition which the scholars have quoted in favor of treating triple divorce in same breath as three distinct divorce has no express mention about it and there are other, of which, the circumstances are different, and so, they provide no argument. Some of them are weak or non-authentic. So there is none among those which may be cited as basis of such conclusive argument. Some of them are given below: This tradition relates to ,Uwaimir-Ajlani’ in which the story of Lian has been recorded: “When both (husband and wife) had undergone the procedure of ‘swearing’ Uwaimir said “if I still keep her with me then I shall prove to be a Lian” and again he gave her three divorces before the Prophet (PBUH) had ordered it.” This tradition is often presented to prove that Uwaimir gave three divorces in the presence of Prophet and he did not object it and allowed it. But it is not correct to argue from this tradition, because after Lian there cannot be any re-union and the spouses cannot remarry even if they want. So the three pronouncements were only to emphasize the Lian. Further it has been argued that when Hazrat Umar held these three divorces valid, it was in the presence of companions of Prophet who did not object to it. But the important question to be asked here is that on one hand is the judgment of Hazrat Umar and on the other hand there is practice during the time of Prophet as well as Hazrat Abu Bakr. So how can the practice of Prophet (PBUH) be abrogated, it has to be preferred by all means. Thus on review of all the religious literature it can be authoritatively said that the on the question of effectiveness of tripletalaq, there is no clear commandment in the Holy Quran nor any consensus of the opinion can be proved.
JURISTS VIEWS ON TRIPLE TALAQ
The views of jurists of Islamic schools of Jurisprudence have been different and this difference in the opinion of jurists is due to the difference in their interpretation and application of the law. One class of the jurists is of the opinion that no leniency is to be shown in the application of laws so that people should not take undue advantage on that account. Abu Hanifa[4] and Malik, therefore, hold the three repetitions of divorce to be final. The other jurists explained that Allah wants to treat people leniently so that they may not be put to hardship, and also to minimize the chances of separation. Hence, they hold three repetitions to amount to one only. Ibn Rushd has explained that Islam believes in golden mean. There is great controversy regarding the effect of triple divorce at one and the same time. Under the most of the classical schools of Sunni Islamic Jurisprudence there is no material difference regarding the effect of “Triple Divorce” in substance, however, there is some slight difference only in respect of procedure. According to Hanafi[5] jurists this result in a Mughallaza divorce though they call it an innovation. Whereas the Shafii[6] holds that if a husband repeats three pronouncements of divorce but without intending, only for the emphasis it will result in a single divorce but if he pronounces the three divorces intending or without any intention, it shall result in three divorces. More or less same view is held by the Hanbali[7] School. Maliki differ in their view in the sense that they make a distinction between various expression used in the pronouncement of divorce. The only progressive group is the Ahl al-Hadith[8] sect who accepts three divorces at a single sitting as one only. Whereas in Shia law there is general consensus of opinion that the in single sitting should be counted as one and the Imamia sect go so far as to say that such a divorce is no divorce at all.
What does Talaq mean?
Talaq in its primitive sense means dismission. In its literal meaning, it means “setting free”, “letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate words. In other words talaq is repudiation of marriage by the husband in accordance with the procedure laid down by the law. The following verse is in support of the husband’s authority to pronounce unilateral divorce is often cited: “Men are maintainers of women, because Allah has made some of them to excel others and because they spend out of their property (on their maintenance and dower)”. When the husband exercises his right to pronounce divorce, technically this is known as talaq. The most remarkable feature of Muslim law of talaq is that all the schools of the Sunnis and the Shias recognize it differing only in some details. In Muslim world, so widespread has been the talaq that even the Imams practiced it. The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is necessary is that the husband should pronounce talaq; how he does it, when he does it, or in what he does it is not very essential.
Talaq in its primitive sense means dismission. In its literal meaning, it means “setting free”, “letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate words. In other words talaq is repudiation of marriage by the husband in accordance with the procedure laid down by the law. The following verse is in support of the husband’s authority to pronounce unilateral divorce is often cited: “Men are maintainers of women, because Allah has made some of them to excel others and because they spend out of their property (on their maintenance and dower)”. When the husband exercises his right to pronounce divorce, technically this is known as talaq. The most remarkable feature of Muslim law of talaq is that all the schools of the Sunnis and the Shias recognize it differing only in some details. In Muslim world, so widespread has been the talaq that even the Imams practiced it. The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is necessary is that the husband should pronounce talaq; how he does it, when he does it, or in what he does it is not very essential.
What does Quran speak about Talaq?
Quran has been specific as to when talaq could be done and what all procedures are to be followed.
Going through the Quranic principles it is pretty much obvious that God discourages divorce and encourages the continuation of marriage. Striving to preserve marriage is a duty for both husband and wife, even in extreme cases of misbehavior (4:34, 4:128). The discouragement of divorce is understood in the light of 2:226-227 where a 4-month cooling off period is issued before considering the decision of separation, in 4:35 where it is decreed that an arbitrator from each side should be appointed to try to reconcile the couple, in 4:22-23, where God is stating that unlawful marriages (out of ignorance) are not to be broken, in 2:232 where it states that reconciling after divorce is purer and more righteous choice, and in 2:229 where two chances are given to the divorced couple to get back together.
Wait 4 months cooling off before divorce
[Quran 2:226-227] Those who intend to divorce their wives shall wait four months (cooling off); if they change their minds and reconcile, then God is Forgiver, Merciful. If they go through with the divorce, then God is Hearer, Knower.
If the estranged couple chooses separation they must go through with it equitably. There must be two equitable witnesses witness the divorce before God
[Quran 65:2] Once the interim is fulfilled, you may reconcile with them equitably, or go through with the separation equitably. You shall have two equitable witnesses witness the divorce before God. This is to enlighten those who believe in God and the Last Day. Anyone who reverences God, He will create an exit for him.
Divorced women to observe an interim period
[Quran 2:228] The divorced women shall wait three menstruations (before marrying another man). It is not lawful for them to conceal what God creates in their wombs, if they believe in God and the Last Day. (In case of pregnancy,)the husband’s wishes shall supersede the wife’s wishes, if he wants to remarry her. The women have rights, as well as obligations, equitably. Thus, the man’s wishes prevail (in case of pregnancy). God is Almighty, Most Wise.
[Quran 65:4-5] As for the women who have reached menopause, if you have any doubts, their interim shall be three months. As for those who do not menstruate, and discover that they are pregnant, their interim ends upon giving birth. Anyone who reverences God, He makes everything easy for him. This is God’s command that He sends down to you. Anyone who reverences God, He remits his sins, and rewards him generously.
Exception for observing interim period:
[Quran 33:49] O you who believe, if you married believing women, then divorced them before having intercourse with them, they do not owe you any waiting interim (before marrying another man). You shall compensate them equitably, and let them go amicably.
After the fulfillment of the interim the divorced women is a women is free from all the boundaries
Divorced women have to be provided for
This is probably one of the abused laws in the Quran. But God holds us responsible for our innermost thoughts. If one observes God’s laws then God makes it easy for him / her.
[Quran 65:7] The rich husband shall provide support in accordance with his means, and the poor shall provide according to the means that God bestowed upon him. God does not impose on any soul more than He has given it. God will provide ease after difficulty.
Alimony For Widows and Divorcees
[Quran 2:240] Those who die and leave wives, a will shall provide their wives with support for a year, provided they stay within the same household. If they leave, you commit no sin by letting them do whatever they wish, so long as righteousness is maintained. God is Almighty, Most Wise.
[Quran 2:241] The divorcees also shall be provided for, equitably. This is a duty upon the righteous.
[Quran 2:241] The divorcees also shall be provided for, equitably. This is a duty upon the righteous.
Compensation when marriage is not consummated
Breaking the Engagement:
[Quran 2:236] You commit no error by divorcing the women before touching them, or before setting the dowry for them. In this case, you shall compensate them – the rich as he can afford and the poor as he can afford – an equitable compensation. This is a duty upon the righteous.
[Quran 2:237] If you divorce them before touching them, but after you had set the dowry for them, the compensation shall be half the dowry, unless they voluntarily forfeit their rights, or the party responsible for causing the divorce chooses to forfeit the dowry. To forfeit is closer to righteousness. You shall maintain the amicable relations among you. God is Seer of everything you do.
[Quran 2:237] If you divorce them before touching them, but after you had set the dowry for them, the compensation shall be half the dowry, unless they voluntarily forfeit their rights, or the party responsible for causing the divorce chooses to forfeit the dowry. To forfeit is closer to righteousness. You shall maintain the amicable relations among you. God is Seer of everything you do.
Divorced women entitled to stay in the same house she stayed before divorce
Do Not Throw the Divorcees Out Onto the Streets
[Quran 2:231] If you divorce the women, once they fulfill their interim (three menstruations), you shall allow them to live in the same home amicably, or let them leave amicably. Do not force them to stay against their will, as a revenge. Anyone who does this wrongs his own soul. Do not take God’s revelations in vain. Remember God’s blessings upon you, and that He sent down to you the scripture and wisdom to enlighten you. You shall observe God, and know that God is aware of all things.
[Quran 65:6] You shall allow them to live in the same home in which they lived with you, and do not make life so miserable for them that they leave on their own. If they are pregnant, you shall spend on them until they give birth. If they nurse the infant, you shall pay them for this service. You shall maintain the amicable relations among you. If you disagree, you may hire another woman to nurse the child.
Appoint an arbitrator
[Quran 4:35] If a couple fears separation, you shall appoint an arbitrator from his family and an arbitrator from her family; if they decide to reconcile, God will help them get together. God is Omniscient, Cognizant.
Divorce can be retracted twice:
In other words, if the couple reconciles after the first divorce and wish to be husband and wife again, they can re-marry. This is allowed for two divorces only. If the couple divorces third time they have to observe God’s commandment in 2:230 (quoted below). This law serves as a deterrent for those who want a divorce for the third time and they would be very careful to take this step.
[Quran 2:229] Divorce may be retracted twice. The divorced woman shall be allowed to live in the same home amicably, or leave it amicably. It is not lawful for the husband to take back anything he had given her. However, the couple may fear that they may transgress God’s law. If there is fear that they may transgress God’s law, they commit no error if the wife willingly gives back whatever she chooses. These are God’s laws; do not transgress them. Those who transgress God’s laws are the unjust.
Quran 2:232] If you divorce the women, once they fulfill their interim, do not prevent them from remarrying their husbands, if they reconcile amicably. This shall be heeded by those among you who believe in God and the Last Day. This is purer for you, and more righteous. God knows, while you do not know.
[Quran 2:230] If he divorces her (for the third time), it is unlawful for him to remarry her, unless she marries another man, then he divorces her. The first husband can then remarry her, so long as they observe God’s laws. These are God’s laws; He explains them for people who know.
Also note the words “It is not lawful for the husband to take back anything he had given her.” in 2:229.
In case there is a baby during the interim: If during the observation of the interim period it is discovered that the divorced women is pregnant then as stated in 65:4 the interim ends upon giving birth. God has decreed the following law dealing with the infant:
[Quran 2:233] Divorced mothers shall nurse their infants two full years, if the father so wishes. The father shall provide the mother’s food and clothing equitably. No one shall be burdened beyond his ability. No mother shall be harmed on account of her infant, nor shall the father be harmed because of his infant. (If the father dies), his inheritor shall assume these responsibilities. If the infant’s parents mutually agree to part, after due consultation, they commit no error by doing so. You commit no error by hiring nursing mothers, so long as you pay them equitably. You shall observe God, and know that God is Seer of everything you do.
And it’s not only the husband who can end a marriage in Quran; there is a condition under which a woman can divorce her husband.
Under what condition can a woman divorce her husband?
Whichever party chooses for divorce must obey the laws as aforesaid. Normally divorce is mutually decided by the couple. If the aforesaid laws are observed, there could be a situation where either of the spouses may not give their consent but if the arbitrators from both the families decide that divorce is the best solution for the estranged couple then they would, nevertheless go through divorce. The divorce laws are applicable to both man and woman (4:35 and 2:237 indicate this) except that there are certain additional laws which a divorced woman has to observe.
The following seem to be the only conditions where a believing woman leaves her husband without observing the above laws. In fact, in this case even a formal divorce is not required under Quran. However if the law of the land requires a formal divorce then a suit can be filed.
[Quran 60:10] O you who believe, when believing women (abandon the enemy and) ask for asylum with you, you shall test them. God is fully aware of their belief. Once you establish that they are believers, you shall not return them to the disbelievers. They are not lawful to remain married to them, nor shall the disbelievers be allowed to marry them. Give back the dowries that the disbelievers have paid. You commit no error by marrying them, so long as you pay them their due dowries. Do not keep disbelieving wives (if they wish to join the enemy). You may ask them for the dowry you had paid, and they may ask for what they paid. This is God’s rule; He rules among you. God is Omniscient, Most Wise.
Although the following verse is in context of widows, it appears to be applicable to divorcees too.
[Quran 2:234] Those who die and leave wives, their widows shall wait four months and ten days (before they remarry). Once they fulfill their interim, you commit no error by letting them do whatever righteous matters they wish to do. God is fully Cognizant of everything you do.
[Quran 2:235] You commit no sin by announcing your engagement to the women, or keeping it secret. God knows that you will think about them. Do not meet them secretly, unless you have something righteous to discuss. Do not consummate the marriage until their interim is fulfilled. You should know that God knows your innermost thoughts, and observe Him. You should know that God is Forgiver, Clement.
[Quran 2:235] You commit no sin by announcing your engagement to the women, or keeping it secret. God knows that you will think about them. Do not meet them secretly, unless you have something righteous to discuss. Do not consummate the marriage until their interim is fulfilled. You should know that God knows your innermost thoughts, and observe Him. You should know that God is Forgiver, Clement.
MODES OF DIVORCE:
A Muslim marriage could be dismissed by two ways:
- Extra-Judicial Divorce
- Judicial Divorce
- Extra-Judicial Divorce: It is further sub divided into three on the basis of who ends the marriage:
- By the husband:
- Talaq: If it is an expressed talaq then it is further divided into two categories
- Talaq-i-sunnat (Revocable)
- Talaq-i-ahasan (most approved)
- Talaq-i-hasan (less approved)
- Talaq-i-biddat (Irrevocable)
- Ila
- Zihar
- By wife:
- Talaq-i-tafweez
- Lian
- By dissolution of Muslims Marriages Act, 1939
- By mutual agreement:
- Khula
- Mubarat
TALAQ:
Among the Sunnis, Talaq may be express, implied, contingent constructive or even delegated. The Shias recognize only the express and the delegated forms of Talaq.
Conditions for a valid talaq:
- Capacity:Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce Talaq. It is not necessary for him to give any reason for his pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then Talaq pronounced by him during “lucid interval” is valid. The guardian cannot pronounce Talaq on behalf of a minor husband. When insane husband has no guardian, the Qazi or a judge has the right to dissolve the marriage in the interest of such a husband.
- Free Consent:Except under Hanafi law, the consent of the husband in pronouncing Talaq must be a free consent. Under Hanafi law, a Talaq, pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage.
Involuntary intoxication: Talaq pronounced under forced or involuntary intoxication is void even under the Hanafi law.
Shia law: Under the Shia law (and also under other schools of Sunnis) a Talaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.
Shia law: Under the Shia law (and also under other schools of Sunnis) a Talaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.
- Formalities:According to Sunni law, a Talaq, may be oral or in writing. It may be simply uttered by the husband or he may write a Talaqnama. No specific formula or use of any particular word is required to constitute a valid Talaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient. It need not be made in the presence of the witnesses.
According to Shias, Talaq must be pronounced orally, except where the husband is unable to speak. If the husband can speak but gives it in writing, the Talaq, is void under Shia law. Here Talaq must be pronounced in the presence of two witnesses.
- Express words:The words of Talaq must clearly indicate the husband’s intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.
Express Talaq (by husband):When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The express Talaq, falls into two categories:
- Talaq-i-sunnat,
- Talaq-i-biddat.
Talaq-i-sunnat has two forms:
- Talaq-i-ahasan (Most approved)
- Talaq-i-hasan (Less approved).
Talaq-i-sunnat is considered to be in accordance with the dictates of Prophet Mohammad.
- Talaq-i-Sunnat (Revocable Talaq):
Talaq-i-Sunnat is regarded to be the approved form of Talaq. As a matter of fact, the Prophet always considered Talaq as an evil. If at all this evil was to take place, the best formula was one in which there was possibility of revoking the effects of this evil. With this idea in mind, the Prophet recommended only revocable Talaq, because in this form, the evil consequences of Talaq do not become final at once. There is possibility of compromise and reconciliation between husband and wife.
Talaq-i-Sunnat is also called as Talaq-ul-raje. Only this kind of Talaq was in practice during the life of the Prophet. This mode of Talaq is recognised both by Sunnis as well as by the Shias. Talaq-i-Sunnat may be pronounced either in Ahsan or in the Hasan form.
- Talaq Ahsan (Most Proper):
This is the most proper form of repudiation of marriage. The reason is twofold: First, there is possibility of revoking the pronouncement before expiry of the Iddat period. Secondly, the evil words of Talaq are to be uttered only once. Being an evil, it is preferred that these words are not repeated.
In the Ahsan Talaq there is a single declaration during the period of purity followed by no revocation by husband for three successive period of purity. In this form, the following formalities are required:
- The husband has to make a single pronouncement of Talaq during the Tuhr of the wife. Tuhr is the period of wife’s parity i.e. a period between two menstruations. As such, the period of Tuhr is the period during which cohabitation is possible. But if a woman is not subjected to menstruation, either because of old age or due to pregnancy, a Talaq against her may be pronounced any time.
- After this single pronouncement, the wife is to observe an Iddat of three monthly courses. If she is pregnant at the time of pronouncement the Iddat is, till the delivery of the child. During the period of Iddat there should be no revocation of Talaq by the husband.
Revocation may be express or implied. Cohabitation with the wife is an implied revocation of Talaq. If the cohabitation takes place even once during this period, the Talaq is revoked and it is presumed that the husband has reconciled with the wife.
When the period of Iddat expires and the husband does not revoke the Talaq either expressly or through consummation, the Talaq becomes Irrevocable and final.
It may be noted that the characteristic feature of the Ahsan form of Talaq is a single pronouncement followed by no revocation during the period of three month’s Iddat. Therefore, where a husband makes any declaration in anger, but realising his mistake afterwards, wants to cancel it, there is sufficient time for him to do so. Single pronouncement of the civil words of Talaq and sufficient opportunity to the spouses for reconciliation, are the two reasons for calling this form as the ‘most proper’ form of Talaq.
- Talaq Hasan (Proper):
This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there is a provision for revocation. But it is not the best mode because evil words of Talaq are to be pronounced three times in the successive Tuhrs. The formalities required under this form are as under:
- The husband has to make a single declaration of Talaq in a period of ‘Tuhr’.
- In the next Tuhr, there is another single pronouncement for the second time.
It is significant to note that the first and second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, the words of Talaq become ineffective as if no Talaq was made at all.
- But, if no revocation is made after the first or second declaration then lastly the husband is to make the third pronouncement in the third period of purity (Tuhr). As soon as this third declaration is made, the Talaq becomes irrevocable and the marriage dissolves and the wife has to observe the required Iddat.
It may be noted that the important feature of Talaq Hasan is its revocability before the third pronouncement and its irrevocability after the third. In order to make an effective Talaq, the words must be uttered three times in three consecutive period of purity.
In Ghulam Mohyuddin v. Khizer[9], a husband wrote a Talaqnama in which he said that he had pronounced his first Talaq on 15th September and the third Talaq would be completed on 15th November. He had communicated this to his wife on 15th September.
The Lahore High Court held that this was a Talaq Hasan. The Court observed that the Talaqnama was merely a record of the first pronouncement and the Talaq was revocable. The Court further observed that for an effective and final Talaq, the three pronouncements must actually be made in three Tuhrs-only a mention of the third declaration is not sufficient.
The Lahore High Court held that this was a Talaq Hasan. The Court observed that the Talaqnama was merely a record of the first pronouncement and the Talaq was revocable. The Court further observed that for an effective and final Talaq, the three pronouncements must actually be made in three Tuhrs-only a mention of the third declaration is not sufficient.
- Talaq-i-Bidaat (Irrevocable):
According to Ameer Ali[10], this mode of Talaq was introduced by the Omayad Kings[11] because they found the checks in the Prophet’s formula of Talaq inconvenient to them. Since then this mode of Talaq has been in practice among the Sunni Muslims.
Shia Law:
Under the Shia Law, an irrevocable Talaq is not recognised.
In a Bidat form there is no opportunity for the revocation of Talaq. A BidatTalaq becomes final as soon as the words have been uttered and the marriage is completely dissolved. A Sunni husband, who wants to divorce his wife irrevocably, may do so in any of the following manners:
- The husband may make three pronouncements in a period of purity (Tuhr) saying: “I divorce thee, I divorce thee, and I divorce thee”. He may declare his triple Talaq even in one sentence saying: “I divorce thee thrice”, or “I pronounce my first, second and third Talaq.”
- The husband may make only one declaration in a period of purity expressing his intention to divorce the wife irrevocably saying: “I divorce thee irrevocably” or “I divorce thee in Bain”.
By husband
Ila:
Besides Talaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia[12] (Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.
Besides Talaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia[12] (Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.
Zihar:
In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete. After the expiry of fourth month the wife has following rights:
In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete. After the expiry of fourth month the wife has following rights:
- i) She may go to the court to get a decree of judicial divorce
- She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. It can be revoked if:
- i) The husband observes fast for a period of two months, or
- He provides food at least sixty people, or
- He frees a slave.
According to Shia law Zihar must be performed in the presence of two witnesses.
DIVORCE BY MUTUAL AGREEMENT:
Khula and Mubarat:
They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. A verse in the Holy Quran runs as: “And it not lawful for you that ye take from women out of that which ye have given them: except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah), in that case it is no sin for either of them if the woman ransom herself.” The word khula, in its original sense means “to draw” or “dig up” or “to take off” such as taking off one’s clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other. In law it is said is said to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband has no power of cancelling the ‘khul’ on the ground that the consideration has not been paid. The consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property though not illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may emanate from either side. In mubarat both, the husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations come to an end . The Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word Talaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.
They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. A verse in the Holy Quran runs as: “And it not lawful for you that ye take from women out of that which ye have given them: except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah), in that case it is no sin for either of them if the woman ransom herself.” The word khula, in its original sense means “to draw” or “dig up” or “to take off” such as taking off one’s clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other. In law it is said is said to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband has no power of cancelling the ‘khul’ on the ground that the consideration has not been paid. The consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property though not illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may emanate from either side. In mubarat both, the husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations come to an end . The Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word Talaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.
Divorce by wife:
The divorce by wife can be categorized under three categories:
The divorce by wife can be categorized under three categories:
- i) Talaq-i-tafweez
- ii) Lian
- iii) By Dissolution of Muslim Marriages Act 1939.
- Talaq-i-tafweezor delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently . A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favor of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. The power of Talaq may be delegated to his wife and as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”. This form of delegated divorce is usually stipulated in prenuptial agreements. In Khan v. Shahmai [13], under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be made even in the post marriage agreements. Thus where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy . It should be noted that even in the event of contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce.
- Lian:
If the husband levels false charges of unchastely or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behavior and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behavior of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian. This was held in the case of Nurjahan v. Kazim Ali[14] by the Calcutta High Court.
- Dissolution of Muslim Marriages Act 1939:
Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April 1936. It however became law on 17th March 1939 and thus stood the Dissolution of Muslim Marriages Act 1939.
Section 2 of the Act runs there under:
A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds, namely:-
- That the whereabouts of the husband have not been known for a period of four years:
If the husband is missing for a period of four years the wife may file a petition for the dissolution of her marriage. The husband is deemed to be missing if the wife or any such person, who is expected to have knowledge of the husband, is unable to locate the husband. Section 3 provides that where a wife files petition for divorce under this ground, she is required to give the names and addresses of all such persons who would have been the legal heirs of the husband upon his death. The court issues notices to all such persons appear before it and to state if they have any knowledge about the missing husband. If nobody knows then the court passes a decree to this effect which becomes effective only after the expiry of six months. If before the expiry, the husband reappears, the court shall set aside the decree and the marriage is not dissolved. - That the husband has neglected or has failed to provide for her maintenance for a period of two years:
It is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek divorce on this ground. A husband may not maintain his wife either because he neglects her or because he has no means to provide her maintenance. In both the cases the result would be the same. The husband’s obligation to maintain his wife is subject to wife’s own performance of matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband’s failure to maintain her because her own conduct disentitles her from maintenance under Muslim law. - That the husband has been sentenced to imprisonment for a period of seven years or upwards:
The wife’s right of judicial divorce on this ground begins from the date on which the sentence becomes final. Therefore, the decree can be passed in her favor only after the expiry of the date for appeal by the husband or after the appeal by the husband has been dismissed by the final court. - That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years:
The Act does define ‘marital obligations of the husband’. There are several marital obligations of the husband under Muslim law. But for the purpose of this clause husband’s failure to perform only those conjugal obligations may be taken into account which is not included in any of the clauses of Section 2 of this Act. - That the husband was impotent at the time of the marriage and continues to be so:
For getting a decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and continues to be impotent till the filing of the suit. Before passing a decree of divorce of divorce on this ground, the court is bound to give to the husband one year to improve his potency provided he makes an application for it. If the husband does not give such application, the court shall pass the decree without delay. - That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease:
The husband’s insanity must be for two or more years immediately preceding the presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or incurable. Leprosy may be white or black or cause the skin to wither away. It may be curable or incurable. Venereal disease is a disease of the sex organs. The Act provides that this disease must be of incurable nature. It may be of any duration. Moreover even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce on this ground. - That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated;
- That the husband treats her with cruelty, that is to say,-
- Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
- Associates with women of ill-repute or leads an infamous life, or
- Attempts to force her to lead an immoral life, or
- Disposes of her property or prevents her exercising her legal rights over it, or
- Obstructs her in the observance of her religious profession or practice, or
- If he has more than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran.
CASE LAWS:
CRUELTY:
In Syed Ziauddin v. Parvez Sultana[15],Parvez Sultana was a science graduate and she wanted to take admission in a college for medical studies. She needed money for her studies. Syed Ziaudddin promised to give her money provided she married him. She did. Later she filed for divorce for non-fulfillment of promise on the part of the husband. The court granted her divorce on the ground of cruelty. Thus we see the court’s way of attributing a wider meaning to the expression cruelty.
In Zubaida Begum v. Sardar Shah[16], a case from Lahore High Court, the husband sold the ornaments of the wife with her consent. It was submitted that the husband’s conduct does not amount to cruelty.
In Aboobacker v. Mamukoya[17], the husband used to compel his wife to put on a sari and see pictures in cinema. The wife refused to do so because according to her beliefs this was against the Islamic way of life. She sought divorce on the ground of mental cruelty. The Kerela High Court held that the conduct of the husband cannot be regarded as cruelty because mere departure from the standards of suffocating orthodoxy does not constitute un-Islamic behaviour.
In Itwari v. Asghari[18], the Allahabad High Court observed that Indian Law does not recognize various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test of cruelty is based on universal and humanitarian standards; that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health.
Irretrievable Breakdown:
Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law.
In 1945 in Umar Bibi v. Md. Din[19], it was argued that the wife hated her husband so much that she could not possibly live with him and there was total incompatibility of temperaments. On these grounds the court refused to grant a decree of divorce. But twenty five years later in Noorbibi v. PirBux[20], again an attempt was made to grant divorce on the ground of irretrievable breakdown of marriage. This time the court granted the divorce.
Thus in Muslim law of modern India, there are two breakdown grounds for divorce:
- Non-payment of maintenance by the husband even if the failure has resulted due to the conduct of the wife,
- Where there is total irreconcilability between the spouses.
STEPS TAKEN BY INDIAN GOVERNMENT TO REDUCE THE MISERY OF MUSLIM WOMEN
- The Muslim Women (Protection of Rights on Divorce) Act 1986
According to this act, the husband is liable to pay alimony during the time of iddat or for the span of three months after the divorce. If the divorced woman has no close relatives to look after her or she is incapable of providing her own maintenance, the magistrate has the right to order the Waqf Board to take up the responsibility of providing support to the woman and her children. The act shifts the responsibility of maintenance from the husband to the relatives and the Waqf Board. The husband knows that if he does not provide maintenance, he could still control and harass his divorced wife to beg at different places for maintenance. The husband takes responsibility for the children till they are two years old. After that the responsibility falls on the wife to claim maintenance for them. The efforts by a lone woman to rightfully claim maintenance after divorce got converted into a huge political storm and the concerns of the woman were relegated to the background, the Quranic injunctions on gender justice notwithstanding. Since then there has been no effort either by the various governments or by the community to revive the process of gender-just reforms in Muslim personal law.
- Dissolution of Muslim Marriages Act 1939.
(Explained under the heading, ‘Modes of Divorces’)
After this, there has been no change in the laws pertaining to marriages, divorces in the Muslim society. These have still been highly inadequate in enabling justice for women in the matters of marriage and family. The purposes of it have not been fulfilled.
According to a survey, Over 50% of women had not received their mehr. A number of those who did reported having received it post their divorce. It is interesting to note that amongst those who received their mehr are mostly women whose mehr was fixed at a very meager token sum, some receiving Rs 501to others a mere symbolic Rs 786 and around 79% women reported not having received any maintenance from their husband post their divorce.
.
Reasons as to why it should be banned:
- Banned in various Muslim Countries:Tradition dictates that religious laws should be preserved. Unlike India however, there are several Muslim majority nations where triple talaq has been banned
- Egypt:
It was the first country to reform its divorce system in back 1929 with the accordance of the holy book Quran. - Pakistan:
It was abolished after the recommendation by a 7 member commission on marriage and family laws in 1956 and the framed the legislation of marriage and divorce similar to Egypt, the husband must pronounce Talaq in three successive menstrual cycles. - Tunisia :
As per Tunisian Code of Personal Status 1956, it enshrine that the institution of the marriage comes under the ambit of state and judiciary which cannot allow husband unilaterally to verbal divorce his wife without explanation of reason. - Sri Lanka
Although, it is not Muslim majority country but some Islamic scholars consider the Srilankan Marriage and Divorce (Muslim) Act, 1951 as the ‘most ideal legislation on divorce (Triple Talaq)’. This act envisages that if husband wants separation from his wife then he has to give notice of his intention to Qazi (Muslim Judge) along with the relatives of the partners, elders and other influential Muslims of the area, for attempting the provision of rethink, reconsider and reconcile. - Bangladesh
The process of divorce is very simple in Bangladesh just in three steps to divorce for both Husband and Wife (When power of giving Divorce has been delegated in the Kabin) wanting separation:
- Give Notice in writing;
- Face the Arbitration Board (Appeared or not doesn’t matter); and
- After expiry of 90 days take a registration certificate from a registered Nikah Registrar (Kaji).
- Turkey:
The process of Talaq in Turkey can began only if the marriage was registered at the Vital Statistics Office. Then the entire process of Talaq will be done in civil court. - Indonesia:
Every divorce can only be executed by a court decision. An agreement to divorce between the husband and wife will not be constituted as a divorce, only a court decision may constitute a divorce. It is regulated under Law No. 1 of 1974 concerning Marriage (“Marriage Law”) which also further regulated under Government Regulation No. 9 of 1975 concerning The Implementation of Law No. 1 of 1974 concerning Marriage (“Marriage Regulation”). - Iraq:
It was the first Arab country to replace Sharia court from the government-run personal status court.
So, if these countries being the ‘Muslim dominant countries’ have banned it and are following the basics of Quran to dismiss any marriage then there is no doubt that banning triple talaq in India will not be in accordance with the principles of Prophet Mohammad(may he live in peace)
- Against Fundamental rights as per The Indian Constitution
Talaq-i-Biddat (Triple Talaq) is the most disapproved detestable and draconian forms of divorce. This form of talaq is invalid and unconstitutional as it is repugnant to natural justice and various fundamental rights enshrined under Part III of the Constitution of India.
Equality as enshrined in Article 14 is the essence of democracy and a basic feature of the Constitution and it has been expanded to include concepts of non-arbitrariness and principle of natural justice. It is a necessary corollary of Rule of Law and its underlying object to secure everyone’s equality of status and of opportunity. If any law is arbitrary or irrational it would fall foul of Article 14. Every State action must be informed by reason and if the act is uninformed in reason then it is per se arbitrary. The husband in a case of giving triple talaq has unequivocal right to divorce the wife while the wife cannot do the same. The wife can divorce only if such a right has been delegated to her by the husband himself. Giving of triple talaq is manifestly arbitrary as it does not recognize equality of status of Muslim women with that of men. Moreover it is unreasonable as triple talaq is not preceded by any forms of reconciliation before effecting divorce.
The wife is not given a chance to represent her case before the arbiters during reconciliation as there is none (the wife also doesn’t have a right to resort to the judicial process of courts). This is also an unjust violation of principle of natural justice. A provision not unconstitutional at the commencement of the Constitution can be rendered unconstitutional by later developments and thinking, such as gender equality. Thus triple talaq which promotes gender inequality is liable to be struck down as unconstitutional. Article 21 lays down that “no person shall be deprived of his right to life and personal liberty except according to the procedure established by law.” The Due process mentioned above has two forms (a) Substantive due process, wherein the law must be just and fair and not arbitrary or oppressive.(b) Procedural due process, wherein the aggrieved is given a fair right of hearing.
This personal liberty of a person cannot be taken away by a law which is arbitrary, unfair or unreasonable. There must be some semblance of reasonableness when a law is trying to restrict someone’s right to personal liberty. The All India Muslim Personal Law Board which regulates the application of Sharia’ah to Indian Muslims, tries to enforce the practice of triple talaq and halala under the ambit of Section 2 of the Muslim Personal Law (Shariat) Application Act of 1937. As stated in the above paragraphs, the practice of triple talaq is arbitrary and irrational. It is oppressive in nature as it tries to limit the rights of Muslim women subject to such discrimination. The aggrieved women in such a case do not have recourse to any judicial proceedings. As the practice is not preceded by any forms of reconciliation, the women also do not get any chance of a fair hearing before the Qazis or the arbiters.
Article 25(2) further empowers the State to regulate secular affairs surrounding religion and to legislate and enact measures pertaining to social welfare and reform. Any such reform brought in the form of a uniform civil code would fall under Article 25(2) and would not violate religious freedom guaranteed under Article 25.The State can regulate or restrict a practice if it is of the view that in the interest of social welfare and reform, it is necessary to do so. The Constitution of India requires the State to strive to secure for the citizens of India a uniform civil code throughout India. The members of the drafting committee of our Constitution envisaged that bringing in the uniform civil code would promote national integrity. It is a matter of necessity that religion be separated from law. This would lead to realization of one of the principle aspects of Indian Constitution i.e. Secularism. The Supreme Court itself has stated in numerous cases that a uniform civil code will help in protection of the oppressed and promotion of national unity and integrity by removing the contradictions based on ideologies. The personal law system in India draws distinction between groups on the basis of religion and between members of such groups on the basis of gender.
The Supreme Court regarding the right of a husband to unequivocally divorce his wife (triple talaq) has laid down that such a divorce, if contested by wife, will not be valid if (i) it was not given for a reasonable cause and (ii) there was no attempt for reconciliation between the parties.
- Testimonies of women suffering from triple talaq
- M Begum, 31 years old, is a resident of Begumpore, Dindigul. Unemployed, she is a mother of two children aged seven and three years. Her husband divorced her seven years after their marriage, unilaterally, in her absence. Domestic violence, suspicion and a disturbed life with her in-laws were problems she faced in her daily married life. Despite having a nikahnama, with 3 gms of gold fixed as mehr or dower at the time of marriage, she did not receive it. She received it neither at the time of marriage nor divorce. Not having received any maintenance post-divorce, nor been allowed to take back her belongings after the unilateral divorce by her husband, she now resides in her parents’ house, with both her children living with their father.
- Twenty eight year old Fathima, does not have her nikahnama. Though she received her mehr at the time of marriage, which was fixed at 2 gms of gold, she received no maintenance post-divorce. A victim of oral divorce, she faced harassment and violence at the hands of her in-laws. She is not educated and post divorce lives with her parents. She has not been able to get back her belongings, nor her jewelry etc from her husband’s house post divorce.
- Naveena J, an MPhil from Thirupore, is a mother of a one year old. Divorced unilaterally three months after her marriage by her husband, by a mere letter through the Qazi, neither did she receive her mehr fixed at ten gms of gold, on her marriage, nor has she received any maintenance from her husband post-divorce. Domestic violence, issues and fights with in-laws and husband, harassment for more dowries and a suspicious husband were problems she faced in the three months that she was married. She has not been able to get back her belongings and jewelry from her husband’s house, post-divorce and lives with her one year old child in her parent’s home. Her husband is now preparing to marry for a second time.
- Rafeekha, 36 years of age has four children aged 16, 12, 6 and 4 years. A daily wage laborer, she does not have her nikahnama and had never received the Rs 1001 fixed as mehr during her marriage. Divorced unilaterally by her husband, she has not received any maintenance from him. A victim of domestic violence and having faced an alcoholic husband, post-divorce she stays with her parents and all the four children also are her responsibility. She managed to get back her belongings and jewelry from her husband’s home after their divorce.
- A house help by occupation, Jennath N, 45 years of age became a victim of oral talaq four years after her marriage. Mother to a 16 year old, Jennath’s unilateral divorce by her husband was communicated to her by the local jamaat. With neither maintenance nor mehr, she has to work very hard to make ends meet and stays with her daughter at her brother’s house where she has to face a lot of humiliation and social stigma. She has not been able to retrieve her belongings or jewelry from her husband’s house, who married a second time after having easily divorced her.
The count of the testimonies doesn’t end here; there are many more women who are suffering from this obnoxious practice that has destroyed many lives. Testimonies of around 117 women from various states of India show how badly it has affected people.
- Triple talaq not being ethically correct:
Only men cannot decide the fate of a marriage and when it affects the life of both, husband and wife , then depriving them of a right when it is about their life is not ethically correct. - Reasons given by All India Muslim Personal Law Board(AIMPLB) for not letting it ban were baseless
REASONS:
- If there is no triple talaq then husbands might end up murdering their wives and burning too
- The Indian society has been patriarchal and that’s why all the personal laws follow that notion only.
- It is true that triple talaq is sin but it is Shariart that says yes for it
- Triple talaq is followed because the arbitration process or the judicial proceedings may take a lot of time and thus it is the right way to end a marriage quickly.
- Disclosing the reason of divorce might ruin the status of the respective family and could even question the dignity of the girl.
If such kind of divorce continues to prevail in India on such basis then the marriages that are highly recommended by Quran to e unbound of time won’t even exist. The reasons given were right if it was about the India that existed a few decades back but now since the system has improved with the change in society then such inimical ways of repudiating marriages should also be changed. The Indian society undoubtedly has been patriarchal but it does have change many of its system which originated due to this man-minded society.
Not allowed by Quran.
As per Quran, when the couple decides to repudiate their marriage then a procedure is supposed to be follow, period of iddat has to be given, appointment of an arbitrator has to be done, attempts must be made by the family members to restore the marriage and the reason to end the marriage has to be clear and specific and then talaq should be used as a last resort. But in Triple Talaq no such procedure is followed, husband might enunciate the word ‘Talaq’ thrice over the phone or text on whatsapp or he might say it because of anger or in a drunken state violating the rules of Quran. Thus triple talaq can be classified as a non-essential and non-integral part of Islam.
- Negated by Islamic Scholars.
MaulanaAbul Ala Maududi, founder of Jamaat-e-Islami had said, “If people knew that triple divorce is superfluous and even a single talaq would dissolve the marriage, of course, leaving room for revocation during the next three months and remarriage thereafter, innumerable families could have been saved from disruption.”
Maulana Ashraf Ali Thanvi, renowned graduate from DarulUloom Deoband, had recommended the Quranic method of talaq.”A man pronounces a revocable talaq. He reconciles and resumes cohabitation. A few years later under some provocation he pronounces a revocable talaq again. On recovering from provocation he resumes cohabitation again. Now two talaqs are over. Thereafter whenever he pronounces a talaq it will be counted as the third talaq which will dissolve the marriage forthwith,”
Maulana Wahiduddin Khan, another noted scholar said a man uttering talaq to his wife three times in a row contravenes the sharia, which is a sin. If he was known to be in an emotionally overwrought state at the time, his act may be considered a mere absurdity arising from human weakness.
Maulana Wahiduddin Khan, another noted scholar said a man uttering talaq to his wife three times in a row contravenes the sharia, which is a sin. If he was known to be in an emotionally overwrought state at the time, his act may be considered a mere absurdity arising from human weakness.
Considering the facts that triple talaq is un-Islamic, negated by highly regarded Islamic scholars, that such a practice has been invalidated in many Muslim-dominated nations and that it blatantly violates provisions of Constitution of India, the practice of triple talaq must be pronounced as unconstitutional.
MEASURES TO BE TAKEN:
- Implementation of Uniform Civil Code
- Codification of Muslim Personal Laws
UNIFORM CIVIL CODE AND TRIPLE TALAQ:
Article 44 of The Indian Constitution speaks about Uniform Civil Code that, “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. Under which all the personal laws based on the scriptures and customs of each major religious community in India will be replaced with a common set governing every citizen.
Religion is the root of all these problems and if Uniform Civil Code is implemented then it can resolve all the contradictions that will arise from substitution of the present system with any other system that derives its sustenance and sanctity primarily from religion. If religion is continued to be treated as a supreme when it is about marriage, divorce or anything which directly affects the life of a woman, then the women of that society will continue to suffer from inequality and discrimination. And that has happened with the Muslim women, under the rule of Ostrich-like mentality of the AIMPLB. AIMPLB has always been against it, it was formed when the question of implementation of Uniform Civil Code arose in the early 1970s by the then law minister Mr H R Gokhalewhen Mrs. Indira Gandhi tried to control the dominance of Sharia Law of 1937. AIMPLB has consistently asserted that Sharia is beyond reach and scope of India’s courts of law, including the Supreme Court, as in its opinion, secular courts do not have the authority to either interpret or apply Sharia, which is based on the Quran and the Hadith[21], which are above any manmade law.
In its self-appointed role as the sole arbiter of Muslim destiny in secular, democratic India, AIMPLB may have taken upon itself the onerous task of saving the minority Indian Muslims from the persecution of majority Indian Hindus.
The point is, once you remove the words ‘Muslims’ and ‘Hindus’, only Indians remain – with no majority or minority – but equal in every respect before law (today they are guided by different sets of laws) enjoying equal rights and privileges under the Constitution. That can happen once the Shariah is no longer allowed to control the lives of Indian Muslims and their freedom to worship and follow their religious practices are left to individuals, as in most religions. AIMPLB cannot allow it to happen, since it then loses its raison-d’etre. In no other religion and perhaps in no other country, least of all in any democracy, the clergy, or the mullahs, are allowed to wield so much power by the State.
In Mohd. Ahmed Khan v. Shah Bano Begum[22] Case, when Supreme Court made a recommendation of Uniform Civil Code. The All India Muslim Board defended the application of their laws and supported the Muslim conservatives who accused the government of promoting Hindu dominance over every Indian citizen at the expense of minorities. The Criminal Code(under which the Shah Bano got justice which she rejected after sometime) was seen as a threat to the Muslim Personal Law, which they considered their cultural identity. According to them, the judiciary recommending a uniform civil code was evidence that Hindu values would be imposed over every Indian. The orthodox Muslims felt that their communal identity was at stake if their personal laws were governed by the judiciary. The members of the Muslim board, including Khan, started a campaign for complete autonomy in their personal laws. An independent Muslim parliamentarian proposed a bill to protect their personal law in the parliament. The Congress reversed its previous position and supported this bill while the Hindu right, the Left, Muslim liberals and women’s organizations strongly opposed it. The Muslim Women’s (Protection of Rights on Divorce) was passed in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women. The debate now centered on the divinity of their personal law. A Muslim member of parliament made a claim emphasizing the importance of the cultural community over national by saying that only a Muslim judge could intercede in such cases.
Religion is the root of all these problems and if Uniform Civil Code is implemented then it can resolve all the contradictions that will arise from substitution of the present system with any other system that derives its sustenance and sanctity primarily from religion. If religion is continued to be treated as a supreme when it is about marriage, divorce or anything which directly affects the life of a woman, then the women of that society will continue to suffer from inequality and discrimination. And that has happened with the Muslim women, under the rule of Ostrich-like mentality of the AIMPLB. AIMPLB has always been against it, it was formed when the question of implementation of Uniform Civil Code arose in the early 1970s by the then law minister Mr H R Gokhalewhen Mrs. Indira Gandhi tried to control the dominance of Sharia Law of 1937. AIMPLB has consistently asserted that Sharia is beyond reach and scope of India’s courts of law, including the Supreme Court, as in its opinion, secular courts do not have the authority to either interpret or apply Sharia, which is based on the Quran and the Hadith[21], which are above any manmade law.
In its self-appointed role as the sole arbiter of Muslim destiny in secular, democratic India, AIMPLB may have taken upon itself the onerous task of saving the minority Indian Muslims from the persecution of majority Indian Hindus.
The point is, once you remove the words ‘Muslims’ and ‘Hindus’, only Indians remain – with no majority or minority – but equal in every respect before law (today they are guided by different sets of laws) enjoying equal rights and privileges under the Constitution. That can happen once the Shariah is no longer allowed to control the lives of Indian Muslims and their freedom to worship and follow their religious practices are left to individuals, as in most religions. AIMPLB cannot allow it to happen, since it then loses its raison-d’etre. In no other religion and perhaps in no other country, least of all in any democracy, the clergy, or the mullahs, are allowed to wield so much power by the State.
In Mohd. Ahmed Khan v. Shah Bano Begum[22] Case, when Supreme Court made a recommendation of Uniform Civil Code. The All India Muslim Board defended the application of their laws and supported the Muslim conservatives who accused the government of promoting Hindu dominance over every Indian citizen at the expense of minorities. The Criminal Code(under which the Shah Bano got justice which she rejected after sometime) was seen as a threat to the Muslim Personal Law, which they considered their cultural identity. According to them, the judiciary recommending a uniform civil code was evidence that Hindu values would be imposed over every Indian. The orthodox Muslims felt that their communal identity was at stake if their personal laws were governed by the judiciary. The members of the Muslim board, including Khan, started a campaign for complete autonomy in their personal laws. An independent Muslim parliamentarian proposed a bill to protect their personal law in the parliament. The Congress reversed its previous position and supported this bill while the Hindu right, the Left, Muslim liberals and women’s organizations strongly opposed it. The Muslim Women’s (Protection of Rights on Divorce) was passed in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women. The debate now centered on the divinity of their personal law. A Muslim member of parliament made a claim emphasizing the importance of the cultural community over national by saying that only a Muslim judge could intercede in such cases.
This clearly shows that AIMPLB will never let Uniform Civil Code happen but if it is implemented then there will be equal status to all the citizens, gender parity, accommodation to the aspirations of young population, national integration will be supported and it will bypass the contentious issue of reform of existing personal laws. Facing the difficulties like diverse nature of India and fighting against people like AIMPLB who consider UCC as encroachment on religious freedom, once is implemented all the worries and discrimination towards Muslim women will flew away.
CODIFICATION OF MUSLIM PERSONAL LAW
According to a survey by Bharatiya Muslim Mahila Andolan, an overwhelming 83.3% women felt that their family disputes could be resolved if a law based on Quranic principles was codified and 89% wanted the government to intervene in helping to codify Muslim personal law.
The British enacted the Shariat Application Act, 1937 which was an attempt at applying Shariat law and not customary laws to the Muslim community. This act states that the Muslim community will be governed by the Shariat and not customary laws. Although it states that Muslims will be governed by Shariat, it does not specify much on aspects such as the age of marriage, divorce, maintenance, custody of children, polygamy, etc. This is of no help to women as it does not list the various issues that they face. In practice, followers of different schools of thought continue to apply their own varied understanding and interpretation of the Shariat. There are, therefore, many conflicting views on several significant issues, especially those concerning divorce. The irony is that each view claims to be based on their respective interpretations of the Shariat. And the practice of unilateral oral divorce continues. Several Muslim countries have codified their laws and tried to ensure justice to women. Several socio-religious communities in India, including minorities, have codified personal laws as per their religious texts. But such a move has not been taken up for the Muslims owing to the politics over leadership.
The Dissolution of Muslim Marriages Act 1939 gave a Muslim woman the right to seek dissolution of her marriage on nine specified grounds. This is the only legislation enacted by the British, which introduced a substantive codification of the divorce law. However, although the act benefits women, it is rather piecemeal. It only lays down the grounds on which women can seek divorce. It does not lay down any procedure or a time frame within which she can get a divorce. The man can divorce his wife without assigning any reason and even in her absence. He may or may not approach the court or any authority to seek divorce. This act does not question or restrict the man’s unbridled right to oral triple divorce. The act deals only with divorce and not with related matters such as maintenance, custody of children, payment of mehr, etc. For these matters, the woman has to file separate cases under other laws, sometimes in other courts. This law is a welcome measure but it needs more elaboration and matters under its purview. Our findings clearly indicate that it has not stopped Muslim women from being divorced unilaterally and instantly.
The latest development in recent times has been the Shah Bano controversy and the Muslim Women (Protection of Rights on Divorce) Act 1986. The Shah Bano case is one of the most significant lawsuits in the history of the Indian judicial system. The case pioneered the Muslim women’s fight for justice on the right to claim alimony. There was a huge uproar at the time over the right to maintenance granted by the courts to Shah Bano. It was dubbed “interference in religious matters” by some conservative male sections. In the aftermath, the Muslim Women (Protection of Rights on Divorce) Act 1986 was passed by Parliament. These three laws exist in India in the name of Shariat or Muslim personal law but these are highly inadequate in enabling justice for women in the matters of marriage and family. There is no codified law that covers all aspects of family and marriage matters.
In Muslim society there are multiple implementing agencies that dispense justice in family matters. There exist Shariat courts, qazis, muftis (religious clerics), jamaats (sect arbitration councils) that also take in cases of family dispute. These bodies are readily accessible and have closer contacts with the community unlike the secular court structures. Poor people find going to a court expensive, cumbersome and time- consuming. The community mechanisms are accessible but are dominated by men who arbitrate and settle disputes, which more often than not go against the interest of the women. These individuals and institutions have adopted patriarchal, conservative and anti-women interpretations of the religious texts. In some cases there is little recognition of the Constitution and the values of justice and equality. Besides, the Muslim law being followed by these bodies is not homogeneous and its provisions vary according to the different sects and sub sects.
Furthermore, it is an amalgamation of customary law and practices, statutory law and interpretations of the verses of the Quran. So while a Muslim woman is required to go to the court to seek divorce, a Muslim man is not required to do so. He can pronounce divorce thrice and terminate the marriage contract instantly and unilaterally. The presence of wife or witnesses is not required. These councils are mostly approached by men as most of these places may not be women-friendly. However, Muslim women do approach Shariat courts regularly with the help of male relatives or directly.
Clearly, the existing male-oriented community justice framework has not helped Muslim women to get justice in matters of marriage and family. It is important to understand the meaning of the popularly held perception about Indian Muslims being governed by Shariat in matters of personal laws. The secular democratic state has failed to enable fair representation for all sections of the population, including women, by only recognizing the conservative religious voice as the voice of the whole community. The conservative sections are unaware and unconcerned about the issues of Muslim women and therefore they cannot continue speaking for them.
Furthermore, Muslim women and girls face several challenges of safety, security, survival and dignity in modern times like women and girls from all other communities. They are gradually learning to cope with these challenges. The solution cannot be that of confining them to homes for their own safety and well-being. They have aspirations like other citizens and it is binding on both the government and the community to recognize and support their concerns. Muslim women cannot forever live with the threat of instant oral unilateral divorce or polygamy or post-divorce economic uncertainty. These must be resolved by evolving a just and fair legal framework based on the principles of the Quran.
Uniform Civil Code is one of the way by which the problem of all the inequalities, injustice and the obnoxious practices could be stopped that are going on in the name of religion whereas Codification of Personal Laws is the need of the hour of all the Muslim women as they believe that their family disputes could be resolved if law based on Quranic principles is codified. Both ways the society will be uplifted and the Muslim women will get justice.
India’s top court on Tuesday struck down the controversial Islamic practice that allows men to divorce their wives instantly by a 3:2 majority, deeming it “unconstitutional”.
The Supreme Court (SC) ruled that the practice of “triple talaq”, whereby Muslim men can divorce their wives by reciting the word talaq (divorce) three times, was both unconstitutional and un-Islamic.
Victims including Shayara Bano, whose husband used triple talaq to divorce her by letter in 2015, had approached India’s highest court to ask for a ruling.
A panel of five judges from India’s major faiths — Hinduism, Christianity, Islam, Sikhism and Zoroastrianism — said triple talaq was “not integral to religious practice and violates constitutional morality”.
They said it was “manifestly arbitrary” to allow a man to “break down (a) marriage whimsically and capriciously”.
“What is sinful under religion cannot be valid under law,” said the judges.
Indian Chief Justice JS Khehar, who was a part of the panel, asked the government to bring legislation in six months to govern marriage and divorce in the Muslim community
CONCLUSION
India is a diverse country where every religion has its important and has the right to continue its practices. Muslims are the largest minorities in India and have been given various privileges to follow their religion and are not bound to do anything which against their religion or something which they are not allowed to do.
Triple talaq, a practice that is being followed in India under the cover of religion and traditions has devastated results in our society. Suppress the right of other because of Religion is not acceptable. But this practice has gone against many rights enshrined in our Constitution. A husband divorces his wife over the phone just because he wanted a son; another person send a text on Whatsapp and ends the marriage, there and then only; another person ended his marriage with his wife in a drunken state, not even realizing the consequences of it. These instances clearly shows that this practice must be stopped, the aftermath of this inimical practice not only ruins the life of the wife but also shatters the dreams of the children and affects the future life of the husband. The wife looses trust in marriage, alumina, which is a must, is not provided to the wife because of which she and her kids have to live a life in poverty. Unemployment, illiteracy, criminal activities are few aftermaths of this practice. Husbands too take this practice for granted, they marry whoso ever they want to and for how short period they want to, at times they have a purpose behind it and when the purpose is over they leave the girl like that only.
There have been instances where courts gave judgments in the favor of wife and asking the husband to state a reasonable cause (Dagdu v. RahimbiDagduPathan[23]), whenever they repudiate a marriage and if they fail to provide a valid reason there wasn’t any talaq.
A 2015 survey of about 5,000 women across 10 states by the Bharatiya Muslim MahilaAndolan (BMMA) found that over 90% wanted an end triple talaq. Of the 525 divorced women surveyed, 78% had been given triple talaq; 76 of these women had to consummate a second marriage so that they could go back to their former husbands.
In India we have arrived at this commonsense that women in marriage have less rights then men. Article 25 and 26 of are equally meant for men and women, whatever be the denomination. Triple Talaq is Against the Progressive spirit of Quran. It symbolizes the subordination, subjugation and suppression of human rights of women. The practice of triple Talaq is grossly injurious to the human rights of the Muslim women. This form of Talaq is infested with the malady of inequality which goes against equality which is enshrined in Article 14 of the Indian Constitution.
The Sharia law as practiced in India falls short of meeting the evolved standards of gender equality and justice, now it is the society who has to change it. India has moved away from the clutches of orthodoxy and fanaticism, this era is an era of empowerment, literacy and freedom, and then why not gives women her due.
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