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Talaq: Analysis of Divorce in Islam

Talaq is an Arabic word, which means "loosing or untying the knot" (Imam Raghib). In the terminology of lawyers, Talaq means, by uttering certain words, the annulment of its legality or dissolution of marriage. The Prophet declared that divorce was the worst of the things that were permitted by law. Since divorce is evil, it should be avoided as much as possible.

But in some cases, this evil becomes a necessity, for when it is impossible for the married parties to continue in union with mutual affection and love, it is better to let them separate than to force them to live together in the atmosphere of hatred and discontent. The basis of divorce in Islamic law is the inability of the spouses to live together, rather than any specific cause (or fault of the party) that makes the parties unable to live together. Divorce can be either the act of the husband or the act of the wife.

Different Types of Talaq in Islam:

Different Types of Talaq in Islam

Talaq-e-Ahsan: The husband gives talaq to the wife (in one sentence) in a state of purity (tuhr) and waits for the period of 'iddat'. This type of talaq is revocable during the iddat period. After iddat it becomes irrevocable.

Talaq-e-Hassan: There must be 3 consecutive pronouncements of talaq but three utterances must be made in 3 consecutive tuhrs (in case of menstruating women) or at consecutive intervals of 30 days (in case of non-menstruating women). It can be revoked at any time before the third declaration. After the third utterance, it becomes irrevocable.

Talaq-e-Bidat: Triple Talaq. The word 'bidat' means innovation and therefore this type of talaq is not purely Islamic. Later (during the Umayyads) it was innovated to suit the patriarchy. According to Shia Law, irrevocable Talaq is not recognized.

Here, 3 statements can be made in one tuhr (Instant Talaq), i.e.,by declaration three times of "I divorce you" at the same moment. It becomes irrevocable immediately after its utterance regardless of iddat. In that they cannot remarry without the formality of the woman marrying another man and not being divorced from him. This is termed as Halalahby some critics. If the Halalah is preplanned, then it may be pronounced as a sin i.e., illegal. Though some people not aware of Islam, look down upon this concept, this concept propounded by Islam only shows how undesirable and contemptible Islam considers Talaq.

The Qur'an chapter Surah al-Baqarah verse 2:230 says: "If a husband divorces his wife irrevocably, he cannot remarry her after that until she marries another husband and he divorces her. In that case, there is no blame on either of them if they reunite." The Qur'an says that after a divorce a woman becomes haram or forbidden to her husband. However, if she marries another man and the marriage does not last for any reason - the other husband divorces or dies: and she and her previous husband decide to remarry, it is lawful.

It is known from authentic Traditions that it is totally illegitimate for a person to arrange the marriage of his divorced wife with someone else on the understanding that the latter will divorce her to make it possible for the former husband to recontract marriage with that woman. Such trickery would in fact be an act of sheer sexual corruption and would not render the woman liable to remarriage with her former husband.

According to a Tradition transmitted from 'Ali, Ibn Mas'ud, Abu Hurayrah and 'Uqbah ibn 'Amir, the Prophet pronounced his curse on those who arrange, as well as on those who agree to contract, such fictitious marriages. (See Muslim. 'Talaq', l5, 71; Nasa'i, 'Talaq', 8; Ahmad b. Hanbal, Musnad, vol. 1, P. 314 and vol. 5, p. 334; Al-Muwatta', 'Talaq', 27; Abu Da'ud. 'Talaq'. 10 - Ed.)

Further, there is no reference of consummation of marriage before divorce here. The word Nikah Halalah is not mentioned in the Quran and the existence of such marriage in Muslim society is almost non-existent.

Here the husband is of sound mind and of legal age, and he swears by God not to have intercourse with his wife and leaves the wife to observe iddat. He must abstain from intercourse with his wife for four months or more after taking the vow.It can be cancelled by resuming intercourse within four months or by oral withdrawal. In India it is generally not practiced.

Liyan: False accusation of adultery
When a husband accuses his wife of adultery or denies the paternity of his child and the accusation is false, the wife has the right to sue and obtain a divorce.
These cases too are rare.

When a wife applies for divorce in a court, she is required to prove that her husband did not behave reasonably and did not fulfil his obligations towards her as a husband. In this type of divorce, the husband and wife may, with mutual consent, reunite during the iddat period. Mehr owed must be paid to the wife.

If a husband compares his wife to his mother or other female relative to a prohibited degree, the woman has the right to refuse him (or have intercourse with him) until he performs penance, such as freeing a slave or fasting for a month. In default of atonement by repentance, the wife has the right to request a judicial divorce.

Mubarrat: Divorce by mutual consent
In Mubarrat the offer of divorce can be made by either the wife or the husband and they can settle for divorce with mutual consent.

This divorce is initiated by the wife. In this she has to return the dowry she received from her husband at the time of her marriage or make financial settlement with her husband for getting divorce.

A woman does not divorce her husband, but gets divorced (at her command) from her husband. In Talaq-e-Tafweez is a provision in the marriage contract that allows the husband to delegate the power of divorce to his wife. It is an arrangement where the husband voluntarily grants the wife the authority to pronounce talaq independently without requiring his consent or involvement.

Dissolution of Muslim Marriages Act 1939
Section 2 of the Dissolution of Muslim Marriages Act, 1939 is governed as follows:
A woman married under Muslim law shall have the right to obtain a decree of divorce to dissolve her marriage on one or more of the following grounds, namely:

  • That the husband's whereabouts were unknown for four years;
  • That the husband neglected or did not provide for her maintenance for a period of two years;
  • That the husband has been sentenced to imprisonment for a term of seven years or more;
  • That the husband has not fulfilled his marital obligations without reasonable cause for a period of three years;
  • That the husband was impotent at the time of the marriage and continues to be so: to obtain a decree of divorce on this ground, the wife must prove that the husband was impotent at the time of the marriage and is impotent until the suit is filed;
  • If the husband has been insane or suffering from leprosy or a virulent venereal disease for two years;
  • That she, having been given in marriage by her father or other guardian before the age of fifteen years, has repudiated the marriage before the age of eighteen years, provided the marriage has not been consummated;
  • That her husband treats her cruelly means:
    1. habitually assaults her or makes her life miserable by cruel conduct, even if such conduct does not amount to physical abuse, or
    2. is linked to women of questionable character or lives a notorious lifestyle, or
    3. attempts to make her lead an immoral life, or
    4. disposes of her property or prevents her from exercising her legal rights to it, or
    5. prevents her from maintaining her religious profession or practice, or
    6. If he has more than one wife, he does not treat her fairly in accordance with the injunctions of the Holy Quran.
Court Judgments
In Ghulam Mohyuddin v. Khizer, the husband wrote a Talaqnama in which he said that he had pronounced his first Talaq on 15th September and the third Talaq would be completed on 15th November. He announced this to his wife on September 15.

The Lahore High Court ruled that it was Talaq Hasan. The court observed that the Talaqnama was only a record of the first declaration and the Talaq was revocable. The court further observed that for an effective and final Talaq, the three declarations must actually be made in three tuhrs, mere mention of the third declaration is not enough.

In Marium v. Md. Shamsi Alam, the wife left her husband's place and went to her parents' house because she found that her husband was not paying attention to her health. When her husband went to take her back, she refused to go with him. The husband became agitated and in anger uttered Talaq three times in one breath. But later realizing his mistake, he revoked the Talaq during the Iddat period.It was held by the Allahabad High Court that notwithstanding the word Talaq was blurted out thrice, but since it was uttered in one breath, it should be construed as one single utterance.

The court found that Talaq in this case was in the form of Ahsan which was revocable. Since the husband has expressly revoked the Talaq before the Iddat, it cannot be said that he was serious about the divorce. So, the marriage was not annulled and the wife had to accompany the husband. In this case, the court interpreted the rules of Muslim law liberally to discourage hasty and rash divorces.

It is important to note that in recent years, Talaq-ul-Bidat has come under criticism among jurists and Indian courts have tried to discourage it. In Rahmat Ullah v. State of U.P., the Allahabad High Court observed that Irrevocable Talaq (Talaq-e-Biddat) is illegal because this kind of Talaq is against the dictates of the Holy Quran and is also against the provisions of the Constitution of India.

The facts and law established in this case are summarized below:
Shia law
According to Shia law (as well as other Sunni schools), talaq pronounced under coercion, undue influence, fraud or voluntary intoxication is invalid and ineffective.
According to Sunni law, talaq can be oral or written. It can be simply spoken by the husband or he can write Talaqnama. No particular formula or use of any particular word is required to make a valid talaq. Any expression that clearly indicates the husband's desire to break up the marriage will do. It does not have to be done in the presence of witnesses.

According to Shias, talaq must be pronounced orally, except when the husband is unable to speak. If the husband can speak but gives it in writing, the talaq is invalid under Shia law. According to this law, in presence of two witnesses the talaq must be pronounced.

The words of talaq must clearly indicate the intention of the husband to dissolve the marriage. If the declaration is not express and unambiguous, then it is absolutely necessary to show that the spouse clearly intends to divorce.

In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science graduate and wanted to apply to college for medical studies. She needed money for her studies. Syed Ziaudddin promised to give her money if she would marry him. She did that. She later filed for divorce on the grounds of her husband's breach of promise. The court granted her divorce on the grounds of cruelty. So, we see the position of the court, which attributes a wider meaning to the term cruelty.

In Zubaida Begum v. Sardar Shah, a Lahore High Court case, the husband sold the wife's ornaments with her consent. It was argued that the husband's conduct did not amount to cruelty.

In Aboobacker v. Mamu Koya, a husband forced his wife to wear a saree and see pictures in a cinema. The wife refused because she believed it was against the Islamic way of life. On the grounds of mental cruelty, she sought a divorce. The Kerela High Court ruled that the husband's conduct could not be considered cruelty because mere deviation from the standards of stifling orthodoxy did not amount to un-Islamic conduct.

In Itwari v. Asghari, the Allahabad High Court noted that Indian law does not recognize various types of cruelty such as "Muslim cruelty", "Hindu cruelty" and so on, and that the test of cruelty is based on universal and humanitarian standards; that is, conduct by the husband that would cause such physical or mental pain as to endanger the safety or health of the wife.

Divorce based on the irretrievable breakdown of marriage arose in Muslim law through the judicial interpretation of certain provisions of Muslim law. In 1945, in the case of Umar Bibi v. Md. Din it was argued that the wife hated her husband so much that she could not live with him and that there was a complete incompatibility of natures. For these reasons, the court refused to issue a divorce decree.

But twenty-five years later, in Neorbibi v. Pir Bux, a divorce was again attempted on the ground of irretrievable breakdown of marriage. This time the court granted the divorce. Thus, in the Muslim law of modern India there are two grounds for divorce:
  1. failure of the husband to pay maintenance, even if the failure is due to the conduct of the wife,
  2. where there is complete irreconcilability between the spouses.
Requirement to pronounce Talaq by Muslim men:
There are certain criteria that must be met in order to pronounce talaq. This requirement further varies according to different Muslim schools of thought.
Shia: Must be of sound mind and must have reached the age of puberty.
It must be said orally in the presence of two witnesses, unless he is able to speak. Furthermore, Talaq pronounced under duress is invalid. It must be spoken in Arabic and strictly in accordance with the Sunnah.

Sunni: Only two requirements are needed in Sunni Law i.e.,
  1. The husband who is divorcing must be healthy.
  2. He attained majority.
Talaq pronounced under duress or intoxication is invalid.

Remarriage after pronouncement of Talaq
Under Muslim law, where the annulment of a Muslim marriage is caused by a single pronouncement of talaq, there is no prohibition against the couple remarrying.

This rule applies to Talaq-Ahsan and one of the two modes of Talaq-ul-Bidat.But where the marriage is annulled by a declaration of triple talaq, the remarriage of the couple is not lawful unless the divorced wife undergoes a temporary marriage with another man and is divorced by him after the actual consummation.

This abominable condition was said to have been intended to check the arbitrary exercise of the power of divorce by the husband, and to arrest the repeated divorces and remarriages which were so frequent in Arab society at the time of the Prophet's advent, and contrary to the interest of public morality. Justice S.A. Kader, (2004) 1 LW (JS) 41
The above ruling is misconceived in the sense that the word actual consummation is not mentioned in the Quran.

Will pronouncing three divorces at once will count as three divorces or just one?
This method of divorce is against the Sunnah.
That is why such divorces are called 'biddat divorce'.

There are differences of opinion among the ulema (scholars) on this point, therefore safety lies in not pronouncing three divorces at once and simultaneously.
Regarding the husband's right to an unequivocal divorce from his wife (triple talaq), the Supreme Court held that such a divorce, if challenged by the wife, would not be valid if:
  1. It was not given for a reasonable reason.
  2. There was no attempt at reconciliation between the parties

Mohd. Ahmed Khan v. Shah Bano Begum
In Mohd. Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945, the Supreme Court reiterated its position and held that a divorced Muslim woman, unless she has remarried, is a wife for the purposes of Section 125 of the Code of Criminal Procedure, 1973 and is entitled to maintenance from her ex-husband after the Iddat period.

Triple Talaq - Shayara Bano v. Union of India
The Supreme Court of India struck down the practice of talaq-e-bidat (triple talaq), which allowed some Muslim men to divorce their wives immediately and irrevocably, on the grounds that it violated the Constitution of India.

Danial Latifi v. Union of India
  1. The Muslim husband is obliged to make adequate and just provision for the future of the divorced wife, which of course includes her maintenance, even after the iddat period; and must do so within the period of Iddat within the meaning of section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
  2. His liability under section 3 to pay maintenance is not limited to the Iddat period;
  3. A divorced Muslim woman who is not remarried and is unable to support herself after the iddat period can proceed according to section 4 against her relatives who are obliged to support her in proportion to the property they would inherit from her. If none of them are able to maintain it, the courts can direct the State Wakf Board to pay.
  4. The provisions of the Act do not conflict with Articles 14, 15 and 21 of the Constitution.

Chand Patel v. Bismallah Begum
One Chand Patel was married to Mustaq Bee. With his wife's consent, he married her sister Bismillah Begum and had a daughter by her. Later he began to neglect Bismillah Begum,who had no means to support herself and the child.

She suggested that the trial court order alimony for each of them. The finding court granted the request and this decision was confirmed by both the district court and the high court.Challenging the HC order, Patel argued that the marriage was prohibited by law, which did not entitle her to any maintenance. The Bench rejected this argument and stated that a marriage with the wife's sister during the existence of the earlier marriage was only irregular (fasid) and not void (batil). Chand Patel was ordered to pay all arrears by the court.

Ahmedabad Women Action Group (AWAG) v. Union of India, AIR (1997) 3 SCC 573
The facts of the case
Muslim law allows Muslim men to contract four marriages along with the right to divorce under the concept of Talaq, whereby the husband has the power to divorce by pronouncing the term "Talaq" without judicial methods, and this can happenwithout her consent. The PIL filed in this case dealt with both these issues and some others.

The PIL dealt with five main issues. They were:
  • Declare the Muslim personal law that permits polygamy invalid as a violation of Articles 14 and 15 of the Constitution.
  • Promulgate the Muslim Personal Law that allows a Muslim man to give unilateral Talaq to his wife without her consent and without the use of a judicial process as invalid, contrary to Articles 13, 14 and 15 of the Constitution.
  • Declare that the mere fact of a Muslim husband taking more than one wife is an act of cruelty within the meaning of Clause VIII of Section 2 of the Muslim Marriages Annulment Act, 1939.
  • Declare that Muslim Women (Protection of Rights on Divorce Act, 1986) is invalid because it violates Articles 14 and 15 of the Constitution.
  • Further declare that the provisions of Sunni and Shia inheritance laws which discriminate against women in their share compared to that of men of equal standing void as discrimination against women based solely on sex.

In light of these contentions, the court was of the view that India and Indians are governed by Personal Laws irrespective of the time period. It was of the view that court intervention would lead to several undesirable consequences, as adjudication of personal rights is beyond the jurisdiction of the courts. The petition was therefore dismissed.

Noor Saba Khatoon v. Mohammed Quasim | AIR 1997 SC 3280
In the landmark judgment of Noor Saba Khatoon v. Mohd. Quasim, the Supreme Court ruled that a divorced Muslim woman is entitled to maintenance for her children until they become of age. The court held that both under Muslim Personal Law and under Section 125 CrPC, the father's duty was absolute when children lived with a divorced wife.

Smt. Sarla Mudgal, President, Kalyani & Ors v. Union of India
It is a landmark judgment that held the practice of conversion to another religion to secure a second marriage against the basic principles of justice, equality and good conscience. It discontinued the practice of conversion to Islam to form a valid second marriage when the first Hindu marriage is not dissolved. It was held that such marriages are offences under Section 494 of the IPC.

Shamim Ara v. State of U.P. & Ors
In the case of Shamim Ara v. State of U.P. &Ors, Supreme Court held that a written declaration by the husband to the effect that he has divorced his wife will not by itself operate as 'talaq' because 'talaq to be effective must be pronounced.

Legal effects of divorce under Muslim law
Whatever the method, Talaq operates as a complete severance of the marital relationship between husband and wife. Upon completion of each form of Talaq, the marriage is dissolved and the parties cease to be spouses.

The effects or legal consequences of divorce are listed below:
  • Cohabitation becomes illegal
  • Cohabitation between husband and wife becomes illegal after divorce.
  • Iddat
    • The wife is required to observe Iddat for three lunar months after the divorce or, if she is pregnant, until the child is born. However, if the divorce occurs before consummation, the wife need not observe the Iddat.
  • Maintenance during Iddat
    • During the Iddat period, a divorced wife is entitled to maintenance from her ex-husband. The maintenance of a divorced wife is now governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986. According to this Act, the ex-husband is required to maintain the divorced wife only until the period of Iddat.
  • The right to enter into another marriage
    Both parties are free to remarry with other persons. Thus, the husband can marry another wife immediately after the divorce. But a divorced wife cannot marry another husband before the expiry of the Iddat period. If their marriage has broken up before consummation, the wife can also enter into another marriage immediately after the divorce. However, if a husband has four wives at once and one of them was divorced, even the husband cannot contract another marriage during the Iddat of the divorced wife.
  • Dower
    • The unpaid dower immediately becomes payable to the divorced wife. Whether the dower is quick or delayed, the divorced wife is entitled to it immediately after the divorce.
    • If the marriage was consummated, she is entitled to the full amount of her specified dower; if the divorce occurs before consummation, she is only entitled to half of the stipulated dower. If the dower was not specified, he is entitled to a proper dower; but if the divorce takes place before consummation, he is entitled to receive only some gifts.
  • Remarriage between a divorced couple
    After a divorce, spouses cease to be parties. There is no restriction on their remarriage to other persons. However, there are certain restrictions on the remarriage of a divorced couple. Muslim law prescribes certain special rules for remarriage between divorced spouses.
  • Mutual inheritance rights cease
    • After the divorce is finalized, i.e., when it becomes irrevocable, the mutual inheritance rights between the spouses cease. This means that if the husband dies after the divorce, the wife is not entitled to inherit his property. Likewise, if the wife dies, the husband cannot inherit her property. But if the divorce was pronounced during the husband's death bed (Marz-ul-Maut), this general rule does not apply.

Triple Talaq Law in India
The Supreme Court of India in Shayara Bano v. Union of India and others and related matters, on 22 August 2017, by a 3:2 majority judgment, struck down the practice of talaq-e-biddat (three pronouncements of talaq simultaneously) practiced by some Muslim husbands to divorce their wives.

Instant triple talaq has been made cognizable and non-bailable with a maximum of three years imprisonment and fine. Only a complaint to the police by the wife or her blood relative will be accepted. Only a magistrate can grant bail, not the police.

Later on some amendments were made in the said law. The "offence" of instant triple talaq will remain non-bailable when the man is arrested, but he will be able to apply for bail in court, but only after the judge hears the wife. The offence has become compoundable, that is, if the wife and husband wish to settle their disputes, the judge can compound the offence under suitable conditions.

In such a case, only the victim (wife) or a blood relative can file a complaint and the judge can grant bail subject to conditions. A woman can apply to the magistrate for a living allowance for herself and her minor children, and she can also seek custody of the minor children from the magistrate, who will make the final call on the matter.

Islam has strongly discouraged Talaq but some people out of their ignorance of Muslim Law and for of their own personal interest and sometimes due to poverty resort to giving Talaq to their wives on flimsy grounds.Even today the percentage of divorce among people who follow Muslim Law is the lowest as compared to other communities.

However, the provision of Talaq in the laws is necessary otherwise people may even kill their husbands/wives to get rid of them in cases of irretrievable break up of marriage or get engaged in adulterous relationship. In the absence of concept of Talaq in some societies, there is prevalence of adultery, extra marital affairs, illegitimate children, wife killing and secret second marriage.

  4. Mohammedan Law, Aqil Ahmad
  5. Muslim Law, Syed Khalid Rashid's
  6. Mulla's Principles of Mahomedan Law
  11., Farhan Rahman
  12. Input from Mr. Faiz Ahmed, Superintending Engineer, PWD, West Bengal

Written By: Md. Imran Wahab
, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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