Talaq: Dissolution of Marriage
Talaq is an Arabic word, and its literal meaning is the "undoing of or release
from a knot." Talaq represents freedom from the bondage of marriage. It refers
to the dissolution of the contract of marriage in abnormal circumstances and is
often considered an unavoidable evil. In Islamic law, Talaq is regarded as an
exception to the status of marriage. The Prophet declared that among the things
permitted by law, divorce is the worst. However, sometimes this evil becomes a
Under Hebraic law, a husband could divorce his wife for any cause, but under
Islamic law, this right and power were vested in both the husband and the wife.
According to Islamic law, marriage is a contract, and divorce is a means of
ending this contract when reconciliation between the spouses is absolutely not
possible. Divorce encompasses many religious aspects and is considered necessary
and lawful only under certain circumstances.
Mohammed Ali has stated in his commentary that "Divorce is one of the
institutions in Islam regarding which misconceptions prevail so much so that
even Islamic law, as administered in the court, is not free from
Kinds of Talaq:
Mainly, there are two express ways of Talaq:
- Talaq-Ul-Sunnat (Revocable)
- Talaq Ahsan (Most Proper)
- Talaq Hasan (Proper)
- Talaq-ul-Bidaat (Irrevocable)
Talaq-ul-Sunnat (Revocable) refers to Talaq that is in conformity with the
dictates of the Prophet. This is the approved form of Talaq, and the
pronouncement of Talaq is revocable.
- Ahsan Talaq:
This is considered the most laudable form of divorce. It
consists of a single pronouncement within the term of purity. This period is
meant for reconciliation and arbitration. If any kind of cohabitation occurs
during this period, the Talaq is considered to have been revoked.
- Hasan Talaq:
In this form of divorce, a man must make three pronouncements
during three consecutive terms of ritual purity. After the pronouncement of
divorce for the third time, the divorce becomes final and irrevocable. No sexual
intercourse should take place during these three periods of tuhr.
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.
However, if no revocation is made after the first or second declaration, then
the husband is to make the third pronouncement in the third period of tuhr. An
important feature of Talaq Hasan is its revocability before the third
pronouncement and its irrevocability after the third.
Talaq-ul-Bidaat (Irrevocable) is instant (Triple Talaq) and becomes effective as
soon as the word "Talaq" has been pronounced thrice. In this form of Talaq,
three pronouncements can be made during a single tuhr (when the woman is not
menstruating) by saying "I divorce thee" thrice at the same instant. The
pronouncement can be oral, written, or delivered through electronic means such
as telephone, SMS, email, or social media. Such a Talaq is lawful, although
sinful in Hanafi law, but not permissible in Ithna Ashari and Fatimid laws. This
is also called 'al talaq al-bain' (irrevocable divorce).
Triple Talaq is debatable issue:
Some interpreters are of the opinion that pronouncement of Triple Talaq in one sitting is a pre-Islamic practice. The
Prophet (PBUH) was not happy with it as indicated by the Hadith.
Shayara Bano And Others V. Union Of India And Others
On 22 August, 2017 The Hon'ble Supreme Court pronounced its judgement on
landmark case and Set aside the "Talaq-ul-Bidaat" or "Triple Talaq" with the
majority of 3:2 The constitutional Bench of Five Judges from different religions
Chief Justice. Kurian Joseph, Justice Rohinton Nariman,
Justice Lalit delivered the MAJORITY Judgement while Justice Khehar and Justice
Nazeer dissented with the MINORITY.
The majority judgment held Triple Talaq to be unconstitutional under Article 14
read with Article 13(1). In this regard, the Court held that the practice had
been sanctioned as a matter of personal law by the Muslim Personal Law (Shariat)
Application Act, 1937.
The Court clarified that "�an action that is arbitrary, must necessarily involve
negation of equality" and determined, as Triple Talaq provides that "�the
marital tie can be broken capriciously without any attempt at reconciliation so
as to save it", this arbitrariness violates Article 14. The Court concluded that
the 1937 Act is void to the extent that it recognizes and enforces Triple Talaq, on the basis that as per Article 13(1) all laws in force
immediately before the commencement of the present Constitution (which includes
section 2 of the act) shall be void in so far as they are inconsistent with the
fundamental rights set out in the Constitution.
The Court also considered whether Triple Talaq is protected under Article 25 but, following a review of
relevant precedents and Islamic scholarship, concluded that it is not essential
to the practice of Islam.
The decision means Triple Talaq is no more in our society and the government
introduced a bill criminalizing Triple Talaq
- The Muslim Women (Protection of Rights on Marriage) Bill, 2017
To protect the rights of married Muslim women and to prohibit divorce by
pronouncing talaq by their husbands and to provide for matters connected
therewith or incidental thereto.
According to section 3 & 4 of the said bill which criminalizes the practice
of Triple Talaq. Section 3, Any pronouncement of talaq by a person upon his wife,
by words, either spoken or written or in electronic form or in any other manner
whatsoever, shall be "void and illegal". This is followed by the consequence of
such void action in terms of Section 4, whoever pronounces talaq referred to in
section 3 upon his wife shall be punished with imprisonment for a term which may
extend to three years and fine.
- Other Forms Of Talaq:
In this form of Talaq mentioned in Section 2 of Shariat Act, 1937 in
this Husband takes oath to abstain from sexual intercourse with his wife. He
should follow this for four months. The marriage is dissolved with the same
legal results, as if there had been irrevocable divorce pronounced by the
It is a form of inchoate Talaq Here the husband swears that to him
the wife is like the "back of his mother". If the intends to revoke this
declaration he has to pay money by way of expiation of fast for a certain
period. After the oath has been taken, the wife has the right to go to court and
obtain divorce or restitution of conjugal rights on expiation.
Ila and Zihar, as modes of divorce have now become outdated. Although the
provision of such a who constructive divorce still exist In the law, but it does
not exist in practice. A Muslim husband who wants to repudiate his marriage may
do so by Talaq which is simple and more convenient than the indirect modes of
Ila and Zihar.
In the last I have to conclude that the institution of divorce, as
provided under Islam, has been the subject of repeated controversy and is still
a live issue capable of generating much heat and passion due to the changing
concept of gender equality and emancipation in the western civilization and its
impact on the woman in general. Islam does not allow the husband or wife to use
divorce as mockery and takes extra precaution for the welfare of wives.
It is in
conformity with the breakdown theory of divorce. The Quran did not specify any
matrimonial offences. It nowhere gives male citizens the permission to oppress
female citizens. Muslim women have been denied their Quranic rights owing to
misinterpretations and interference of patriarchal orthodox bodies.
We are confident that the courts will make this
long-pending correction and give justice to the Muslim women of the country.
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