Critically examine the law of divorce in Islam and elaborate upon Talaq-ul-Biddat analyzing the judicial interpretation pertaining to the validity of Triple Talaq.

Question: Critically examine the law of divorce in Islam and elaborate upon Talaq-ul-Biddat analyzing the judicial interpretation pertaining to the validity of Triple Talaq. [HJS 2019]

Find the answer only on Legal Bites. [Critically examine the law of divorce in Islam and elaborate upon Talaq-ul-Biddat analyzing the judicial interpretation pertaining to the validity of Triple Talaq.]

Answer

The Hanafis recognized two kinds of talaq, namely, (1) talaq-ul-Sunnat, i.e., talaq according to the rules laid down in the Sunnat (traditions) of the Prophet: and (2) talaq-ul-bidaat or Triple talaq, that is, new or irregular talaq.

Talaq-ul-biddat was introduced by the Omeyyads monarchs in the second century of the Mohammedan era. The talaq-ul-biddat is good in law, though bad in theology, and it is the most common and prevalent mode of divorce in this country.

In the case of talaq Ahsan and talaq Hasan, the husband has an opportunity of reconsidering his decision, for the talaq in both these cases does not become absolute until a certain period has elapsed, and the husband has the option to revoke it before then. But the talaq-ul-biddat becomes irrevocable immediately after it is pronounced.

The essential feature of a talaq-ul-biddat is its irrevocability. One of the tests of irrevocability is the repetitive three times of the formula of divorce within one tuhr. But the triple repetition is not a necessary condition of talaq-ul-bidaat, and the intention to render a talaq 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-bidaat 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 itself as the intention to effect an irrevocable divorce.

The Allahabad High Court in Rahmat Ullah v. State of UP And Ors., II (1994) DMC 64, has given a new meaning and new direction to the law of talaq. Justice Tilhari observed:

"talaq-ul-biddat or talaq-i-bidai , that is giving an irrevocable divorce at once or at one sitting or by pronouncing it in a tuhr once in an irrevocable form, without allowing the period of waiting for reconciliation or without allowing the will of Allah to bring about a reunion, by removing difference or cause of differences and helping the two in solving their differences, runs counter to the mandate of the Holy Quran and has been regarded as by all under Islam-Sunnat, to be sinful."

The court further observed that the mode of talaq giving unbridled power to the husband, cannot be deemed operative, and creating as same has the effect of perpetuating discrimination on the ground of sex male authoritarianism. The need of the time is that codified law of Muslim marriage and divorce should be enacted keeping, pace with the aspiration of the Constitution.

It is viewed by jurists that the divorce must be preceded among Muslims by an attempt of a reconciliation between the husband and the wife by two mediators, one chosen by the wife from her family and the other by the husband from his side. A Mohammedan husband cannot divorce his wife at his whim or caprice i.e. divorce must be for a reasonable cause, and it must be preceded by a pre-divorce conference to arrive at a settlement. Even if there is any reasonable cause for the divorce, there must be evidence to show that there was an attempt for a settlement prior to the divorce and when there was no such attempt prior to divorce to arrive at a settlement by mediators, then there cannot be a valid divorce under Mohammedan Law.

Now the Supreme Court of India has put a seal on the true law (relating to triple divorce) under Islam. In Shamim Ara v. State of UP & Another, A.I.R. 2002 SC 619, Supreme Court reiterated the following statement of Justice Iyer.

"It is a popular fallacy that a Muslim male enjoys under the Quranic Law an unbridled authority to liquidate the marriage. The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him, namely, women) obey you, then do not seek a way against them (IV: 34). The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the prophet, rests on him who repudiates his wife capriciously."

The Apex Court is of the view that the correct law of divorce as ordained by the Holy Quran is that talaq must be for a reasonable cause, and it must be preceded by an attempt of a reconciliation between the husband and the wife by two arbitrators. Thus factum of divorce is required to be proved by the husband, including the conditions precedent there. A mere plea taken by the husband in his written statement at an earlier date shall not amount to the dissolution of marriage under Muslim Personal Law. If the husband relies upon rajai (biddat) form of talaq given on an earlier occasion, he is required to prove the factum by leading evidence before the court.

Thus, it is now a settled position that mere pronouncement of talaq by the husband or merely declaring his intentions or his acts of having pronounced talaq is not sufficient and does not meet the requirements of law. In every such exercise of the right to talaq, the husband is required to satisfy the preconditions of arbitration for reconciliation and reasons for talaq.

Muslim Law – Notes, Case Laws, And Study Material

Test Series for Competitions