‘Talaq’ ‘Talaq’ ‘Talaq’; when pronounced thrice by a Muslim husband, results in instant termination of the marriage. 😦
The man need not cite any reason for the divorce, and the wife need not even be present at the time of pronouncement of talaq. But the question here is, is this even legal in India? Talaq is a highly sensitive issue as it can break years of marital relations between spouses. So, the Indian courts have been very active in determining the legality of various practised modes of talaq under Islamic law.
Did you know that the ‘Quran’ does not allow triple talaq at all? Three talaqs must be pronounced over three months so that husband and wife get enough time for reconciliation through the intervention of relatives and friends. So, the Holy Quran has been very cautious in matters of divorce, but not the people. Triple Talaq has been immensely used by Muslim husbands infringing the rights of women.
Let’s run through the triple talaq laws in India and their legality with reference to some renowned judicial pronouncements.
What is ‘Talaq’?
The direct translation of the Arabic term talaq is "to release." Talaq is defined by Islamic law as "the husband's renunciation of the marriage." The word "talaq" originates from the root “tallaqa”, which means to release an animal from a tether, meaning to reject the wife or remove her from the bonds of matrimony.
Hedaya says that the word "talaq" originally meant "dismission" and now denotes the legal dissolution of a marriage or the nullification of its validity. Talaq is described as the exercise of the husband's unilateral authority to divorce the wife without giving a reason at any point when a legitimate marriage is still in existence, even during the iddat period.
History of Talaq
1. Position before the advent of Islam
The husband's authority to divorce was unrestricted among pre-Islamic Arabs. They had the right to divorce their spouses whenever they wanted, for any reason or no reason at all. Additionally, they had the option to annul their divorce and do it again as often as they wanted. Also, if they so desired, they might swear that they would not have intercourse with their wives while still residing with them. They might dismiss their wives without cause, accuse them of infidelity, and leave them with a reputation that would deter other potential suitors while absolving themselves of any formal obligations of maintenance or legal penalties.
Even though all major religions acknowledge the possibility of divorce, Islam may be the first to explicitly sanction the breakup of a marriage by divorce.
In ancient Arabs, divorce was taken often and was a simple process. Even though Prophet Mohammad expressed his distaste for it, this trend has remained to some extent in Islamic law.
The Prophet considered it to be the most abhorrent of all things that the Almighty God had permitted since it interfered with the normal rearing of children and hindered conjugal happiness.
2. Position after the advent of Islam
Even before the advent of Islam, the institution of arbitrary talaq at the husband's pleasure has existed. There were absolutely no restrictions back then. The husband was free to issue the talaq as many times as he wanted and to reverse it, he could just re-establish his sexual relationship with his wife, and the divorce could be revoked. The Prophet acknowledged this right to divorce, but he also established moral and legal limitations that serve as balances on the husband's authority. According to Hadis, talaq was seen to be the most morally abhorrent of all things authorized by God.
The legal restraints imposed are the following:
1. The fixing of dower.
2. Provision for revocation of talaq in some cases.
3. Restraints on re-marriage between the parties.
The Prophet Mohammad held these divorce traditions in the highest respect and believed they were designed to weaken the fabric of society. It was, however, difficult to completely eradicate the practice given the social structures that existed at the time. The Prophet had to educate a primitive and uneducated community’s minds to a higher level of development.
As a result, he let spouses utilize their right to divorce under specific circumstances. He gave divorcing partners three unique and independent windows of time during which they might try to mend fences between them, but if all such efforts failed, the definitive separation became effective within the third window.
Types of Divorce under Muslim Law
There are three types of divorce recognized under Muslim law:
Talaq-E-Ahsan:- Out of these three, the first is regarded as the best method of divorce, with the husband separating from his wife while she is not menstruating with a single pronouncement of talaq. This is followed by the wife being required to observe an Iddat period (period a woman must observe after the death of her husband or after a divorce, during which she may not marry another man) and constantly watched. It is a type of divorce that is revocable.
Triple Talaq or Talaq-E-Biddat:- Most specifically, "Talaq-E-Biddat” was outlawed by the Supreme Court in 2017 (Shayara Bano v. Union of India). It was passed by pronouncing the word talaq thrice in one sitting, and the divorce remains irrevocable. If talaq is pronounced during menstruation, it is not considered valid.
The Talaq-E-Biddat has its origin in the second century of the Islamic era when according to the statement of Islamic scholar and Jurist Ameer Ali (1849–1928), it was stated that this mode of talaq was introduced by the Omayad Kings because they found the checks in the Prophet's formula of Talaq very inconvenient to them.
Talaq-E-Hasan- A man can divorce his wife under the "Talaq-E-Hasan" by saying the word "Talaq" three times over three months, once every month. The husband has to make a single declaration of Talaq and then wait for another menstrual cycle to pronounce another declaration. The first and second pronouncements may be revoked by the husband. By resuming conjugal rights. Talaq can only be given when the wife is in a state of tuhr i.e., purity after menstruation (menstruation free) This form is presently in question under the petition filed by Benazir Heena. A Public Interest Litigation was filed by a journalist named Benazir Heena, who challenged the Islamic Divorce System of “Talaq-E-Hasan”.
Benazir Heena submitted that the practice must be abolished since it was arbitrary, unlawful, and against the provisions of Articles 14, 15, 21, and 25 of the Indian Constitution. She also sought guidance from the Center on creating standards for unbiased and equitable divorce reasons and procedures for all people. The Muslim Marriages Act of 1939 and the Muslim Personal Law Shariat Application Act of 1937 have also been contested in the case since they supported the husband's unilateral talaq practice. The judgment is awaited.
Since the Supreme Court's 2017 decision invalidated triple talaq, both the husband and the wife have equal rights to dissolve their marriage, according to Islamic law. Two people may not know each other all that well when they get married, but they get to know one another by living together. If they both find that they are not compatible after living together, the best choice at this point is to decide to live apart. The matter challenging “Talaq-E-Hasan” is now posted on 22nd July 2022. What do you think should be the outcome in this case now?