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Triple Talaq: Is Talaq-E-Biddat Islamic In Nature?

This article discusses Muslim personal law relating to talaq and the concept of talaq in Islam. It then focuses on TALAQ-UL-BIDDAT i.e., Instant triple talaq, which is regarded as highly sensitive among Muslims, not only in India but elsewhere, and explains it in terms of Islam as well the Quran. It further raises the point that how women have been struggling for their rights in society for ages, and also put forward the point that how major Islamic countries have also abolished this practice on the ground of it being discriminatory on the part of women.

There are majorly two ways by which marriage in Islam can be dissolved:

  1. By the death of a party to the marriage.
  2. By divorce.
Marriage is a great blessing. Each partner in the marriage has certain rights and responsibilities, which are to be fulfilled lovingly in the best interest of the family.
  • Then how mere utterance of three words in one breath could terminate a marriage within a second?
  • How could the recklessness of one person dissolve the union of two people so instantly?

What is talaq?

Divorce in Islam involves the pronouncement by a husband of the Arabic phrase 'talaq' ("I divorce you") to his wife. Divorce or in Arabic talaq means 'freeing or undoing the knot' in Islamic terminology. Divorce is permitted in Islam as a last resort if it is not possible to continue a marriage. The Holy Prophet (SAW) declared that among the things which have been permitted by law divorce is the worst.

He once said, "Of all lawful things, divorce is the most hated by Allah". The Qur'an and SUNNAH provide clear guidelines for the dissolution of marriage that protects the right of all stakeholders. The Quranic message is very explicit about divorce, it leans more towards safeguarding marriage than dissolving it abruptly.

Conditions For Valid Talaq:

Capacity:
Every Muslim husband of sound mind and who has attained the age of puberty is competent to pronounce talaq. The guardian cannot pronounce talaq on behalf of a minor husband. Some jurists also consider that even talaq pronounced against a minor or insane wife is void and ineffective.

Free capacity:
Except under Hanafi law, the consent of the husband in pronouncing talaq must be free. Under Hanafi law, a talaq pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc. is valid.

Express words:
The words of talaq must indicate the husband's intention to dissolve the marriage. So, the pronouncement must be expressed.

Presence of wife:
The presence of a wife at the time of pronouncement of talaq is necessary (except in Hanafi law). The name of the wife must be specifically referred to in the pronouncement. Where the husband has more than one wife he must specify and name the wife against whom he is pronouncing talaq.

A Muslim who wishes to divorce his wife is advised in the first instance to ask for an arbitration meeting, arranged by the elders of the couple so that a reconciliation may be reached. If such efforts fail and the man sincerely thinks he cannot live a harmonious life with his wife, he may divorce her either verbally or in writing-known as talaq. In both cases, it is recommended for there to be two witnesses present on the occasion of the pronouncement of such a divorce.

A man should divorce only once, and only when his wife is not on her menses, and when there has been no sexual contact with her since the time of her last menses.

Sahih Bukhari, Book 63
Volume 7, book 63 number 178 'Abdullah Bin Umar: that he had divorced his wife while she was menstruating during the lifetime of Allah's Apostle said, order him (your son) to take her back and keep her till she is clean and to wait till she gets her next period and becomes clean again, whereupon if he wishes to keep her, he can do so, and if wishes to divorce her he can divorce her before having sexual intercourse with her, and that is the prescribed period which Allah has fixed for the women meant to be divorced".

"Divorce may be pronounced twice; then the wife may either be kept back in fairness or allowed to separate in fairness" [Surah Al Baqarah 229]

And the divorced women (after the pronouncement of the divorce) must wait for three monthly courses... and their husbands are fully entitled to take them back (as their wives) during this waiting period if they desire reconciliation." [ Surah Al Baqarah 228]

"Then, if the husband divorces his wife (for the third time), she shall not remain lawful for him after this divorce, unless she marries another husband..." [Surah Al-Baqarah 230]

"When you marry the believing women and then divorce them before you have touched them, they do not have to fulfil a waiting period, the completion of which you may demand of them." (Al-Ahzab: 49)

"And if those of you who die, leave wives behind, the women should abstain (from marriage) for four months and ten days." (Al-Baqarah 234)

Division Of Divorce

  • Divorce by mutual consent of the husband and wife:

    The first mode of talaq is 'Khula', this type of divorce is at the instance of the wife. The second category of divorce is 'mubaraat' - divorce by mutual consent. Khula is the right of divorce purchased by the wife from her husband, while in mubaraat both spouses desire the separation.
     
  • Divorce by the wife under a power delegated to her:

    Talaq means to divorce and Tafwid or Tafweez means to delegate the right of divorce to his wife or any third person. This delegation can be made at the time of marriage by way of a prenuptial agreement, with or without conditions. Where the husband grants his wife the right of unconditional divorce, she may talaq him any number of times. However, if the husband while delegating the right of talaq does not mention the number of times that the wife is authorized to give talaq, the wife is entitled to pronounce only one divorce.
     
  • Divorce by judicial decree under the dissolution of Muslim marriages act, 1939:

    Section 2 of the dissolution of Muslim Marriage Act, 1939 provides grounds through which a woman can obtain a decree of dissolution of her marriage.
    Grounds such as:
    1. Whereabouts of husband not known for 4 years.
    2. Cruelty
    3. Impotence, Insanity for 2 years or leprosy or virulent venereal disease.
    4. Repudiation of marriage by the wife etc.

  • Divorce by the husband at his will, i.e., Talaq-ul-Sunnat, Ila, Zihar & Talaq-ul-Biddat:

    Talaq-ul-Sunnat / Talaq-i-rajaee This is a revocable form of talaq because, in this form, the consequences of talaq do not become final at once. Therefore, there is the possibility of compromise and reconciliation between husband and wife.

    Talaq-i-rajaee is also known as Talaq-ul-Sunnat is further divided into two parts:
    1. Talaq-e-Ahsan
    2. Talaq-e-Hasan

The Quran 'Hadith' i.e., the saying of prophet Muhammad, approve of talaq-e-Ahsan and talaq-e-Hasan as they are considered the most reasonable forms of divorce.

Ahsan-It is the most approved and considered to be the best kind of talaq.

The word Ahsan means best or very proper. It has three following conditions:

  1. The husband must pronounce the formula of divorce in a single sentence.
  2. Pronouncement should be in the period of Tuhar i.e., state of purity.
  3. He must abstain from intercourse for a period of iddat.

Hasan-Hasan in Arabic means "good" and so this form of talaq is considered to be a good form of talaq but not as good as Ahasan.

It must satisfy the following conditions:
  1. There must be three successive pronouncements of the formula of divorce.
  2. In the case of a menstruating wife, the three pronouncements must be made in three consecutive tuhrs.
  3. In the case of a non-menstruating wife, the three pronouncements must be made during the successive intervals of 30 days.
  4. No sexual intercourse must take place during these three periods of tuhr.
It can be revoked any time before the third pronouncement. It becomes irrevocable on the third pronouncement.

Ila:

It is a type of constructive divorce, in this, the husband vows abstinence and if he keeps the vows for 4 months wife gets the right to seek judicial divorce. This type of divorce is almost obsolete nowadays.

It has the following conditions:
  1. The husband must be of sound mind and above the age of maturity.
  2. Must take a vow.
  3. A vow must be that he will not have sexual intercourse with his wife.
  4. It can be cancelled by resuming sexual intercourse within the period of four months or by a verbal retraction.
It is not practiced in India.

Zihar:

Zihar is a form of inchoate divorce. If the husband compares his wife to any of his female relations within such prohibited degrees as renders marriage with such person unlawful, the wife has a right to withdraw from him until he has performed penance. If the husband does not expiate, the wife has a right to apply for judicial divorce.

Ingredients:
  1. The husband must be sane and adult.
  2. Husband compares wife to his mother or any other female relative within prohibited degrees.
  3. In that case, the wife has a right, to refuse to have sexual intercourse with him till he has expiated himself by penance, and to apply in court for an order directing him for penance or to decree her a regular divorce.

Talaq-ul-biddat:


Talaq-ul-biddat also known as talaq-ul-bain, Biddat came from biddah (innovation), which means that this form of talaq was devised later.

There is no notion of arbitrary or one-time instant triple talaq in the Quran. The book traces the origin of triple to the time of Caliph Umar in the 7th century, years after Prophet Muhammad's demise.

There was no prevalence of such a practice during the prophet's time. There is an oft-repeated narrative that Umar ordered instant triple talaq to be valid to tackle exigencies of some urgent situations. The book claims the caliph's administrative decision was meant to prevent men from cheating and mistreating their wives.

"Though caliph Umar made triple talaq valid, he put in a condition. The instant divorce would be accepted, but the man giving instant talaq would be publicly flogged. it is this condition which modern-day maulanas have conveniently ignored, even as they declare triple talaq a valid way of divorcing one's wife".

This form of divorce is for 'instant divorce'. It is neither recognized by 'Quran' nor by 'hadith' It is an irrevocable form of divorce, also known as 'Triple talaq' in which the husband pronounces the word 'Talaq' repeatedly three times and hence dissolves the marriage.

In this type of divorce, the wife has no right to question the reason or motive behind the talaq. Women are left with broken ties and are given no explanations. The question of maintenance is not even raised in this type of talaq. Therefore, it is considered against equality and justice.

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. Major Islamic countries have also abolished this practice on the ground of it being discriminatory on the part of women. In India also it was only recognized by Sunni schools.

It was held unconstitutional by the supreme court in ShayaraBano VS uoi (2017)9 SSC 1(SC). Shayara Bano vs Union of India, better known as 'Triple Talaq Case', gave India a historical judgement which declared the practice of Triple Talaq to be unconstitutional. The Triple Talaq judgement is widely regarded throughout the jurisdictions as a safeguard against social evil.

What is the Triple Talaq law?

Triple Talaq, also known as Muslim Women(protection of Rights on Marriage) bill, 2019 , was passed by the Indian parliament as a law on July 30,2019, to make instant Triple Talaq a criminal offence. The Triple Talaq law makes the instant triple talaq a criminal offence and provides for a jail term of three years for a Muslim man who commits the crime.

The law also makes Triple Talaq a cognizable and non-bailable offence. Introduced in the Lok Sabha by Minister of law and justice Ravi Shankar Prasad on June 21, 2019, the bill replaced an ordinanace promulgated on February 21, 2019.

According to clause 3 in Chapter 2 of the bill, "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".

According to Clause 7 (c) in Chapter 3, "No person accused of an offence punishable under Triple Talaq law shall be released on bail after the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq was pronounced, is convinced that there are reasonable grounds for granting bail to the accused".

There is provision for subsistence allowance for the wife and her dependent children as determined by the magistrate, including the right of wife for the custody of her minor children.

It is indeed a sad commentary that in spite of more than 20 Islamic countries having regulated triple talaq in one form or the other, it took us more than 70 years since independence to pass such a law in parliament.

Conclusion
Thus, it is very clear that triple talaq was not an integral feature of Islam, it is considered evil and is nowhere mentioned in the Holy Quran or hadith i.e., messages of Prophet Muhammad (SAW). The supreme court also announced this practice as unconstitutional and not protected regarding religious freedom by Article 25.

Getting respect is a fundamental right of every individual, one of the most important conclusions to be drawn through the abolishing of the triple talaq bill is that no Muslim will face such discrimination and injustice in their life in future. The court has given progressive thoughts over the personal law in society. The abolishment of triple talaq will deny discrimination and injustice from Muslim women's lives in the future.

Talaq-ul-Biddat is a sinful form of divorce but, still, it is being practiced for ages merely because it exists. Something relevant 1400 years ago not necessarily needs to be continued. With changing times things have to amend for the betterment of society and instant Triple Talaq is something that was not relevant even then so, how would it work now, therefore what is sinful under religion cannot be valid under law!

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