Talaq is an Arabic word and its literal meaning is ‘undoing of or to a release from a knot’. Talaq is freedom from bondage of marriage. It means of dissolving the contract of marriage in abnormal circumstances. It is an unavoidable evil. In Islamic law, Talaq is considered as an exception to the status of marriage. The Prophet declared that among the things which have been permitted by law, divorce is worst. But sometimes this evil becomes a necessity.
Under the Hebraic law, a husband could divorce his wife for any cause, but under Islamic law this right and power was vested in the husband as well the wife.
According to Islamic law, marriage is a contract and divorces a means of ending this contract whenever necessary. Divorce encompasses many religio-aspects and is considered necessary and lawful only if reconciliation between the spouses is absolutely not possible.
Mohammed Ali has said in his Commentary, “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 misconceptions”.
KINDS OF TALAQ
Mainly there are, two express way of Talaq
1. Talaq-ul-sunnat (Revocable)
· Talaq Ahsan (Most Proper)
· Talaq Hasan (Proper)
2. Talaq-ul-Bidaat (Irrevocable)
Talaq- ul- Sunnat (Revocable) - Talaq which are in conformity with the dictates of the Prophet. This is the approved form of Talaq and the pronouncement of Talaq is revocable.
i. Ahsan Talaq - This is considered to be the most laudable of all types of divorce. It consists of one single pronouncement within the term of purity. This time is meant for reconciliation and arbitration. During this period, if any kind cohabitation occurs, the talaq is considered to have been revoked.
ii. Hasan Talaq - In this form of divorce a man must make three pronouncements during three consecutive terms of ritual purity. At 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. But if no revocation is made after the first or second declaration then lastly the husband is to make the third pronouncements in the third period of tuhr. It may be noted that the important feature of Talaq Hasan is its revocability before the third pronouncements and its irrevocability after the third.
Talaq-ul-Bidaat (Irrevocable) is instant (Triple Talaq) and is 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 or written, or as in recent times, delivered by electronic means- telephone, SMS, email or social media. Such a talaq is lawful, although sinful in Hanafi law but in Ithna Ashari and Fatimid laws it is not permissible. This is also called ‘al talaq al-bain’ (irrevocable issue)
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.
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-
1. ILA: - 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 husband.
2. ZIHAR: - 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 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.
Written by: Ms. Krati Sachdev
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of any person or official associated with Legis Orbis. Examples of analysis performed within this article are only examples. They should not be utilized in real-world analytic products as they are based only on very limited and dated open source information. Assumptions made within the analysis are not reflective of the position of any person or official associated with Legis Orbis.