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:
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
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
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,
- 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:
- habitually assaults her or makes her life miserable by cruel conduct, even if such conduct does not amount to physical abuse, or
- is linked to women of questionable character or lives a notorious lifestyle, or
- attempts to make her lead an immoral life, or
- disposes of her property or prevents her from exercising her legal rights to it, or
- prevents her from maintaining her religious profession or practice, or
- If he has more than one wife, he does not treat her fairly in accordance with the injunctions of the Holy Quran.
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
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
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
The facts and law established in this case are summarized below:
According to Shia law (as well as other Sunni schools), talaq pronounced under
coercion, undue influence, fraud or voluntary intoxication is invalid and
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
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:
Requirement to pronounce Talaq by Muslim men:
- failure of the husband to pay maintenance, even if the failure is due to
the conduct of the wife,
- where there is complete irreconcilability between the spouses.
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.,
- The husband who is divorcing must be healthy.
- 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
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
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:
Mohd. Ahmed Khan v. Shah Bano Begum
- It was not given for a reasonable reason.
- There was no attempt at reconciliation between the parties
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
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
Chand Patel v. Bismallah Begum
- 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.
- His liability under section 3 to pay maintenance is not limited to the Iddat period;
- 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.
- The provisions of the Act do not conflict with Articles 14, 15 and 21 of the Constitution.
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
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
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:
Triple Talaq Law in India
- Cohabitation becomes illegal
- Cohabitation between husband and wife becomes illegal after divorce.
- 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.
- 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.
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
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.
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.
- Mohammedan Law, Aqil Ahmad
- Muslim Law, Syed Khalid Rashid's
- Mulla's Principles of Mahomedan Law
- https://nationalviews.com/types-divorce-talaq-in-islam-women-rights, Farhan Rahman
- 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