Under Muslim law, divorce or Talaq unlike marriage or nikah,
dissolve the sacred marital tie between a husband and wife. It is done only by
the husband either by single or three successive pronouncements of talaq during
tuhr or via mutual consent (Khula or Mubarat) between the parties to marriage.
Interestingly, marriage or Nikah can also be dissolved in 'one go' and that too
again by the husband. This type of talaq is famously known as Triple Talaq which
has a unique importance in Muslim law.
Triple Talaq or Talaq-e-Biddat or Talaq-ul-Bain or Talaq-ul-Badai is considered
to be the most sinful and heretical form of divorce. It was introduced by Omayad
Kings in order to escape the strictness of law. Talaq-e-Biddat is that form of
divorce where the evil words of talaq are pronounced thrice in one sentence
i.e., I pronounce thee Talaq, Talaq, Talaq made during single period of purity (tuhr).
Therefore, these evil words have the power to destroy the beautiful relationship
between the parties.
It thus dissolves the marriage there and then as it is not at all
revocable. Even when the talaq is in writing it becomes irrevocable immediately.
Thus, the status of husband and wife comes to an end immediately.
On the pronouncement of talaq the wife has to observe Iddat. It is to be
duly noted that both the Holy Quran and the Prophet discarded this form of talaq.
Sadly, it was recognised by the Sunni Muslims though at present the position has
quite changed as they too find it sinful, but the Shia Muslims and Malikis never
recognised this form of divorce.
After pronouncing triple talaq the parties cannot marry each
other without going through the process of Halala (i.e., the wife after being
divorced by triple talaq, has to marry some other person; consummate the
marriage; get divorce from him and only then she can remarry her former
husband). Moreover, they even cannot reside together and cohabit as it is
considered to be unlawful and does not provide legitimacy to children born out
of such unlawful cohabitation.
Validity Of Triple Talaq:
It is significant to note that in recent years, this
form of talaq has been widely criticized by jurists and Indian courts.
Triple Talaq Act:
First judicial decision on the validity of triple talaq can be referred to the judgment of Rashid Ahmad v Anisa Khatun (AIR 1932 PC 25), wherein A, a muslim divorced his wife B by three pronouncements of talaq in the presence of witnesses but in the absence of the wife and also executed a divorce deed; but afterwards continued to cohabit with her and to treat her as his wife for 15 years and 5 children were born. The dispute arose regarding their paternity. The doctrine of halala was not performed so no marriage was possible. In this situation illegitimacy stands proved on record and the divorce was held to be valid.
In Rahmat Ullah v State of U.P. (AIR 1979 All. 257), the Allahabad High Court observed that this talaq is unlawful because it is against the dictates of Holy Quran as well as against the Constitution of India but the Hon'ble Supreme Court of India held that triple talaq is not unconstitutional.
In Shamim Ara v State of U.P. (AIR 2022 SC 3551), it was held that:
If their attempt fails, 'talaq' must be effected. But talaq effected in violation of the above two conditions should not be valid.
- 'talaq' must be for a reasonable cause;
- it must be preceded by an attempt of reconciliation between the husband
and wife by the arbiters.
In 2017 a Five Judge Bench of the Supreme Court of India in Shayara Bano v Union of India stressed that Triple Talaq is unconstitutional as it violates the fundamental rights of the Muslim women and is no longer a ground of divorce under Muslim law in India.
Therefore, in view of the judgment of the Hon'ble
Supreme Court of India the Central Government enacted the Muslim Women
(Protection of Rights on Marriage) Act, 2017 also known as the 'Triple Talaq
Act' which decriminalizes the practice of triple talaq (Section 3) and punishes
people with a three year imprisonment and fine (Section 4) on the pronouncement
of Triple Talaq in India.
Hence, Triple Talaq in the present scenario is declared as unconstitutional and
is considered to be the most disapproved form of divorce and an irregular mode