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Divorce With Special Reference To Triple Talaq

Talaq is an arabic word which means' freeing or undoing the knot'it signifies the dissolution of marriage when a Muslim man can severe all marital ties with his wife. Talaq in its original sense means repudiation, or rejection, but under Muslim law, it means a release from the marriage tie. It is a genric term from all types of divorce but it was particularly applied to repudiation by or on behalf of husband.

Forms of Talaq under Myslim law
First one is Talaq -us- sunnat
This Talaq means which is sanctioned by sunnat Or according to the traditions laid down by Prophet (pbuh)
These can be of two types

Talaq Ahsan
The most appropriate method of divorce. In this type of Talaq there are certain requirements which have to be fulfilled.

The husband must make a single pronouncement of divorce

This pronouncement must make during tuhr (period between menstruation)

The husband must abstain from sexual intercourse for the period of Iddat.

In this form of Talaq pronouncement is revocable during Iddat. Such revocation either express words or implied. Cohabitation is an implied revocation. After the expiration of Iddat it becomes irrevocable.

Talaq Hasan... This is also proper method but not the most proper method. The requirements of this form is

There are three pronouncements of Talaq made during sucessive tuhrs

There must be abstinence from sexual intercourse for the period of Iddat.

Talaq Ul BIddat nd Triple Talaq
As the name suggest "Biddah means an innovation that has no roots in the traditional practice (Sunnah Of The Prophet)

Talaq ul BIddat is an instant nd irrevocable divorce. It is mostly banned in many Muslim nations. In India it was only recognized by sunni Muslim . It was held unconstitutional by supreme court in Shayra Bano v/s Union Of India.

Supreme court describes it as "manifestly arbitrary " And said that it allows a man to breakdown a marriage whimsically and capriciously.

If we consider the Quranic view on divorce. Quran is incredibly explicit about divorce . It leans more towards safeguard the marriage rather than dissolving it abruptly.

In Surah e Talaq

Allah says:
When you intend to divorce women, than divorce them with concern for their waiting period, and count it accurately. And fear Allah your Lord.

Do not force them out of their homes nor should they leave unless they commit a blatant misconduct. These are the limits set by Allah. And whoever transgresses Allah's limits has truly wronged his own soul.

It is concluded from Qurans view that Talaq is discouraged by Quran also but it is available for Muslim in certain situations. The Islamic scriptures demands time and patience in executing a divorce in the hope of continuing the Union knowing that the couple is bound to have differences.

Triple Talaq
First of all it is banned in most of the Muslim countries and it is considered as most disapproved form of Talaq but yet recognised. Islamic jurists considered it as an innovation within the fold of shariat. Some jurist considered it bIddat as it has no sanction of holy Quran nor the approval of prophet (pbuh).

It was not in practice during lifetime of prophet (pbuh) nor during the time of first caliph Abu Bakr.

It was permitted by second caliph Hazrat umar on account of certain peculiar situations.

When the Arabs conquered persia syria and egypt and they found women there much more better in appearance as compared to Arabian women's and hence they wanted to marry them. But the Egyptian and Syrian Women insisted that in order to marry them, they should divorce to their existing wives instantaneously by pronouncing three divorce in one sitting.

The condition was not acceptable to Arabs as they knew divorce was only permissible only twice in two tuhr periods and it's reputation at one sitting is Unaslamic and void and shall not be effective. In this way, they could not only marry these women but also retain their existing wives.

The fact was reported to the second caliph Hazrat Umar the caliph then in order to prevent the misuse of the religion by the unscrupulous husbands decreed that even repetition of the word Talaq, Talaq, Talaq at one sitting would dissolve the marriage irrevocably.

It was however a mere administrative measure of caliph umar to meet an emergency situation and not to make it a law permanently. But unfortunately the Hanafi jurists later on at the strength of this instant administrative order of second caliph declared this form of divorce valid and also pave religious sanctions to it.

Imam Abu Hanifa Holds that three Pronouncement shall amount to three separate divorce and they shall result in a Mughallazah Divorce. Though it is sinful and bad in theology but at the same time good in law.

Imam Malik regarding effectiveness of Triple divorce makes a distinction between various expressions used in the Prouncenment of divorce . A husband in the process of Prouncenment of divorce may use the word as when he says, I divorce you divorce you divorce you. He may, on the other hand not use it as when he says , "I divorce you, I divorce you, I divorce you " The Prouncenment in the former case shall amount to three divorces or Mughallazah Or irrevocable final divorce but in the latter case the matter can according to Imam Malik, be considered from the following two aspects
  1. When the husband merely repeats the word ' you are divorced "three times or as when he says " You are divorced, divorced, divorced. In such a case if husband explains that he had repeated the words three times merely to emphasie the divorce then his explanation that he had repeated the divorce to make it more emphatic would not be accepted.
  2. If a husband did not repeat the divorce to lay emphasis but intended three divorce or repeated the divorce without any intention at all then three divorces shall be affected. If the husband pronounces three divorces on different occasions but in the same tuhr, then same result shall follow.

..Judicial trend of Triple Talaq in India...

In the British India as well as independent India all the courts are declaring triple Talaq Prouncenments of divorce in one sitting as lawfull and effective.

The common pharse used by courts at that Talaq ul bIddat or triple Talaq is good in law though but bad in thelogy. The triple divorce is recognised and endorsed by the indian judiciary.

The Bombay highcourt in Sara Bai v/s Rabia Bai 'recognised triple divorce on irrevocable footing.

The calcutta High Court in Fulchand vs Nazib Ali held that presence or absence of wife makes no difference so far as effectiveness of triple divorce is concerned.

Justice Venkta subha Rao observed:
"We therefore hold that it is not necessary for the wife to be present when the Talaq is pronounced. Triple divorce to be effective, it is imperative that it should be addressed to the wife in particular sense. "

The triple divorce Pronounced at one time was condemned by jammu and Kashmir highcourt but nevertheless treated it effective and expressed helplessness regarding the bringing of any change by judicial interpretation.

The present scenario if triple Talaqs validity can be traced from the recent judgement of supreme court in shayra bano vs union of India in which courts struck down this arbitrary practice unconstitutional and declared void.

It was challenged on the grounds of Article 14 , 15 , 21.

In another case sumaila vs Aqil ahmed where husband divorced his wife by single Prouncenment was held by Allahabad highcourt as wrongfull and violative of Article 14.

Needless to say Talaq ul bIddat has devastated the lives of many women's and childrens. Depreived of any opportunity for settlement, this mode of divorce has been subject to certain criticism in several Muslim countries and have brought about reform through codification.

Countries like Pakistan turkey tunsia syria iraq iran Malaysia have either reformed this law completely or brought strict preventive measures in this area.

In India
Parliament passed the Triple Talaq law also referred to as protection of rights on marriage Bill, 2019 to make instant triple Talaq a criminal offence.

The law also makes triple Talaq non bailabe and cognizable offence.

The supreme court considered triple Talaq unconstitutional as it is against gender law and against the principle of equality as a fundamental right as per Constitution and it is not fundamental to the faith of islam.

It mostly favours the men and it pavs an easy way to break marital tie.

India is a diverse country of culture and religion no doubt . Each community have their personal practices and personal religious laws which governs their family matters.

However, a fine balancing has to be done between the right to practice any religion and social justice..

Divorce is Discouraged by Allah and prophet (pbub).

Written By: Rashad Amin Malik, LLB 3rd Sem University Of Jammu

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