INTRODUCTION
Under Muslim law, the contract of marriage may be dissolved in any of the following ways:
(1) By the husband at his will, without the intervention of the court (2) by the mutual consent of the husband and the wife, without the intervention of the court, this may be in the form of ‘Khula” or Mubarat? (3) By a judicial decree following a suit at the instance of the husband or wife. Ordinarily, a wife cannot divorce herself from her husband without his consent, except in circumstances where the husband may delegate the power of divorce to his wife. He may do so at the time of marriage contract or at any time when he so likes, this form of Talak is known at Talak-e-Tafwid or delegate divorce.
In India, most of the Muslims are adherents of the Hanafi school of thought based upon the teachings of Imam Abu Hanifa. The Hanafis recognized two kinds of talak, namely, (1) talak-us-sunnat, that is, talak according to the rules laid down in the sunnat (traditions) of the Prophet; and (2) talak-ulbiddat, that is, new or irregular talak. According to Mulla,
Talak-ul-biddat was introduced by the Omeyyade monarchs in the second century of the Mohammadan era. Talak-ul-bidaat or talak-i-badai. consists of –(i) Three pronouncements made during a single tuhr either in one sentence, e.g., “I divorce thee thrice,” – or in separate sentences e.g., “I divorce thee, I divorce thee, I divorce thee”, or (ii) a single pronouncement made during a tuhr indicating an intention irrevocably to dissolve the marriage, e.g., “I divorce thee irrevocably.” Talak-us-sunnat and talak-ul-biddat. The essential feature of a talakul-biddat is its irrevocability. One of the tests of irrevocability s the repetition three times of the formula of divorce within one tuhr. But the triple repetition is not a necessary condition of talaq-ulbiddat, and the intention to render a talak irrevocable may be expressed even by a single declaration. Thus if a man says “I have divorced you by a talaq-ul-bain (irrevocable divorce)”, the talaq is talaq-ul biddat or talaq-i-badai and it will take effect immediately it is pronounced, though it may be pronounced but once. Here the use of the expression “bain” (irrevocable) manifests of itself the intention to affect an irrevocable divorce.
Hedaya defines it, as a divorce where husband repudiates his wife by three divorces in one sentence or where he repeats the sentence separately thrice within tuhr. Thus he may pronounce, I divorce you, I divorce you, I divorce you, or he may say, I divorce you thrice. In this form of Talak after the pronouncement, if parties wish to reunite, they cannot do so till the wife undergoes Halala i.e. wife goes through another marriage which is consummated and subsequently dissolved. According to Ameer Ali, “Talakal-Biddat or triple divorce, as its name signifies, is a heretical or irregular mode of divorce which was introduced in die second century of the Islamic Hijri era. This condemned form is considered heretical because of its irrevocability. Triple Talak was prohibited during the lifetime of the Prophet and even during the Khilafat of Caliph Abu Bakr and even during the initial two years of Caliph Umar’s reign, however, on account of peculiar circumstances he later permitted it. Many jurists have come up with the following account which led Caliph Umar to permit triple talaq. According to this account:
“When the Arabs conquered Syria, Egypt, Persia, etc. they found women there much better in appearance as compared to Arabian women and hence they wanted to marry them. But the Egyptian and Syrian women insisted that to marry them, they should divorce their existing wives instantaneously, by pronouncing three divorces in one sitting. The condition was readily acceptable to the Arabs because they knew that in Islam divorce was permissible only twice in two separate periods of tuhr and its repetition in one sitting was considered un-Islamic, void and not effective. In this way, they could not only marry these women but also retain their existing wives. This fact was reported to the second Caliph Hazrat Umar. The Caliph Umar then, to prevent 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.
According to some Islamic scholars, it was a mere administrative measure of Caliph Umar, to meet an emergency, and not to make it a legally binding precedent permanently.
POSITION IN INDIA
In India, the practice of Triple Talak has been followed by the Hanafi sect since the advent of Islam in the Indian sub-continent. The Hanafi School acknowledges, that ‘talak-e biddat’ is a sinful form of divorce, but seeks to justify it on the ground that though bad in theology, it is good in law. In India, the practice of ’talak-e-biddat’, gained validity based on the acceptance of the same view by the British courts, before independence. The judgments rendered by the British courts in this context were finally crystallized, in the authoritative pronouncement by the Privy Council in the Rashid Ahmad case wherein the Lord Thankerton, stated that the triple talaq pronounced by the husband “constituted an effective divorce.” In post-independence period, the courts continued to validate the practice of triple talaq. However, lately, the courts have changed their approach towards about Triple Talak, in Rahmatullah v State of U.P; Allahabad High Court observed that “the mode of talaq giving unbridled power to the husband cannot be deemed operative as same has the effect of perpetuating discrimination on the ground of sex, that is, male authoritarianism. The need of the time is that codified law on Muslim marriage and divorce should be enacted keeping pace with the aspiration of the constitution”. In Shamim Ara v State of U.P, Justice Lahoti went a step ahead when he observed
“The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters one from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be affected. (Part 13). In Rukia Khatun’s case, the Division Bench stated that the correct law of talaq, as ordained by Holy Quran, is: (i) that ‘talaq’ must be for a reasonable cause; and (ii) that it must be preceded by an attempt of a reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, ‘talaq’ may be affected.”
Many academics are in agreement with the proposition laid down Justice Lahoti to the extent that talaq must be for reasonable cause and it must be preceded by an attempt of a reconciliation between the husband and wife by two arbitrators. This interpretation of the mandate of the Quran to a large extent mitigates the rigours of the practice of triple talaq. However, the practice of Triple Talak continued despite the observations of the court in Rahmatullah’s case.
In India, the practice of triple talaq has been criticized on the ground that it is gender discriminatory and gives the husband an unbridled power to divorce his wife. According to many, the harsh abruptness of triple talaq has brought about extreme misery to the divorced women and even to the men who are left with no chance to undo the wrong or any scope to bring about reconciliation.
POSITION IN OTHER COUNTRIES
In several countries, the rigours of the practice of Triple Talak have been mitigated by adopting the approach of the Hanbali scholar, Ibn Taimiyah (1268-1328), who argued that three talaqs in one sitting counts as one. The three-in-one position was considered a minority view, but over the last century, more than 20 countries have adopted it. The first country to deviate from the majority opinion of Muslim jurists was Egypt, which through Law No 25 of 1929 declared that a talak, regardless of whether accompanied by a number, will be counted as one and will be considered as a revocable divorce. The only exception to this law is when three talaqs are given in three successive tuhrs. Sudan followed suit in 1935 with some additional provisions. Most of the Muslim countries – from Iraq to Jordan to Indonesia to the United Arab Emirates and Qatar – have accepted Taimiyah’s position on triple talak. Algeria, too, adopted this code, besides earmarking 90 days for completing the reconciliation process. One of the countries which departed from this practice was Turkey which adopted the Swiss Code thereby freeing itself of the influence of the Islamic law on divorce altogether. Within the Indian sub-continent, Pakistan, Bangladesh, and Sri Lanka have adopted measures to abolish the practice of Triple Talak. In the year 1961 Pakistan came up with the Muslim Family Law Ordinance wherein section 7 laid down the provisions related to Talak which provided that: (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talak in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife. (2) Whoever contravenes the provision of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both. (3) Save as provided in subsection (5), a Talak unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman. (4) Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council to bring about reconciliation between the parties, and the Arbitration council shall take all steps necessary to bring about such reconciliation. (5) If the wife is pregnant at the time Talak is pronounced, Talak shall not be effective until the period mentioned in subsection (3) or of pregnancy, whichever are later, ends. (6) Nothing shall debar a wife whose marriage has been terminated by Talak effective under this section from re-marrying the same husband without any intervening marriage with a third person unless such termination is for the third time so effective.
Similarly, Bangladesh retained the provisions of the ordinance of 1961 and as such, there is a consensus that the practice of triple talak has been prohibited especially because the effectiveness of talak under this ordinance is delayed for 90 days from the service of notice to the chairman and also an initiative of reconciliation is tried between the parties which are not possible in case of talak-al-biddat (triple talak) as it becomes effective instantly.
In Sri Lanka, owing to the enactment of Marriage and Divorce (Muslim) Act, 1951, as amended up to 2006, the practice of Triple Talak has not been recognized. The Act of 1951 requires a husband wishing to divorce his wife to give notice of his intention to a qazi (Islamic judge), who should attempt reconciliation between the couples over the next 30 days. It is only then the husband can give talak to his wife – that too, in the presence of the qazi and
two witnesses. Thus it becomes clear that the practice of Triple Talak is not followed in most of the countries in the Indian sub-continent.
TRIPLE TALAK DECLARED UN-CONSTITUTIONAL IN SHAYARA BANO V UNION OF INDIA AIR 2017 SC 4609
Recently the law the practice of triple talak came to be challenged before a member Constitution bench on the ground that it is violative of the provisions of part 3rd of the Constitution. In the instant case the petitionerShayara Bano had approached this Court, for assailing the divorce pronounced by her husband – Rizwan Ahmad on 10.10.2015, wherein he affirmed in the presence of witnesses that he gave talak by three express pronouncements of ‘talak, talak, talak’, followed by the statement that “hence like this, I divorce from you from my wife. From this date, there is no relation between husband and wife. From today I am ‘haraam’, and I have become ‘naamharram’. In future, you are free for using your life.”
The petitioner sought a declaration, from the Bench that the ‘talak-e biddat’ pronounced by her husband on 10.10.2015 be declared as void ab initio. She also contended, that such a divorce which abruptly, unilaterally, and irrevocably terminates the ties of matrimony, under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 are declared unconstitutional. During the hearing, it was submitted on behalf of the petitioner, that the ‘talak-e-biddat’ (-triple talak), pronounced by her husband is not valid, as it is not a part of ‘Shariat’ (Muslim ‘personal law’). It was contended by the petitioner, that divorce of the instant nature, cannot be treated as “rule of decision” under the Shariat Act. It was also submitted, that the practice of ‘talak-e-biddat’ is violative of the fundamental rights guaranteed to citizens in India under Articles 14, 15 and 21 of the Constitution. Moreover, the petitioner argued, that the practice of ‘talaq-e-biddat’ cannot be protected under the rights granted to religious denominations (-or any sections thereof) under Articles 25(1), 26(b) and 29 of the Constitution. The petitioner submitted, that the practice of ‘talaq-e-biddat’ is denounced internationally, and further, a large number of Muslim theocratic countries, have forbidden the practice of ‘talaq-e biddat’, and as such, the same cannot be considered sacrosanct to the tenets of the Muslim religion.
In this case, a 5 member constitution bench by a majority of 3:2 declared the practice of Triple Talaq as unconstitutional. On behalf of the majority, the judgments were rendered by Justice Nariman (for himself and Justice Lalit) and Justice Kurien Joseph whereas the dissenting opinion was delivered by the then Chief Justice H.S.Khehar (for himself and Justice Nazeer). The learned bench mainly dealt with the following issues:
A) WHETHER TRIPLE TALAK OR TALAK E BIDDAT VIOLATES THE FUNDAMENTAL RIGHTS OF THE WOMEN?
On the issue, whether Triple Talak violates the fundamental rights of the women, Justice Kurien Joseph, expressed the view that the practice of Triple Talaq is against the basic tenets of Quran since it neither provides a mode of arbitration nor can is reconciliation possible in case of such a practice. According to the learned judge after the coming into effect of the Shariat Act of 1937 no practice against the tenets of the Quran is permissible. He expressly endorsed and reiterated the law declared by the Court in Shamim Ara’s case. The judge reaffirmed the proposition that what is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well. Justice Nariman while declaring triple talaq as un-constitutional made the following observation:
“Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a form of Talak which is it considered being something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talak. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad, such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds well after Shamim Ara. This being the case, it is clear that this form of Talak is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation to save it. This form of Talak must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India.”
B) WHETHER TRIPLE TALAK OR TALAK E BIDDAT IS AGAINST THE TENETS OF QURAN?
According to Justice Kurien Joseph, The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. However, the learned judge stressed that an attempt for reconciliation should be made and if it succeeds, then it should be followed by the revocation. According to these are the Quranic essential steps before talaq attains finality. Based on this reasoning, the judge declared that triple talaq is against the basic tenets of the Holy Quran since it closes the door for reconciliation because of its irrevocable character. Justice Khehar in his dissenting opinion differed with the majority. According to the judge ‘Muslim ‘personal law’ – ‘Shariat’, cannot be tested on the touchstone of being a State action. In the opinion of the judge ‘Shariat’, is a matter of ‘personal law’ of Muslims, to be traced from four sources, namely, the Quran, the ‘hadith’, the ‘ijma’, and the ‘qiyas’. According to Justice Khehar, none of these can be attributed to any State action. While rejecting the argument of the petitioner, that learned judge stated that Personal law’, being a matter of religious faith, and not being State action, there is no question of its being violative of the provisions of the Constitution of India, more particularly, the provisions relied upon by the petitioners, to assail the practice of ‘talaq-e-biddat’, namely, Articles 14, 15 and 21 of the Constitution.
C) WHETHER TRIPLE TALAK IS PROTECTED UNDER ARTICLE 25 OF THE CONSTITUTION?
On the issue whether Triple Talak is protected under Article 25 of the Constitution?, Justice Nariman stated that though Hanafi jurisprudence permits the practice of triple talaq yet this very jurisprudence castigates it. According to the learned judge, Triple Talak forms no part of Article 25(1).
CONCLUSION
With the authoritative pronouncement of the Supreme Court in Shayara Bano v Union of India, the practice of Triple Talak has been declared as unconstitutional in India. The judgment of the Supreme Court has generated mixed responses from the masses whereas one line of thought has welcomed it as being a historic judgment which will usher in a new era for Muslim women whereas on other hand some are disappointed with the judgment expressing the fear that the verdict may pave the way for a uniform civil code.
