Discuss in detail the Islamic procedure of 'divorce' and its development in India with the help of decided cases. Discuss with the help of decided cases the validity of 'Triple Divorce' under Muslim Law. Do you agree that 'Triple Divorce' has no place in Shariat?

Question: Discuss in detail the Islamic procedure of 'divorce' and its development in India with the help of decided cases. Discuss with the help of decided cases the validity of 'Triple Divorce' under Muslim Law. Do you agree that 'Triple Divorce' has no place in Shariat? Give reasons. [UPJS 2006]

Find the question and answer of Muslim Law only on Legal Bites. [Discuss in detail the Islamic procedure of 'divorce' and its development in India with the help of decided cases. Discuss with the help of decided cases the validity of 'Triple Divorce' under Muslim Law. Do you agree that 'Triple Divorce' has no place in Shariat? Give reasons.]

Answer

Islamic procedure of 'divorce' and its development in India

Divorce signifies the dissolution of the marriage tie. All separations effected for causes directly originating in the husband are termed Talaq, and separations affected otherwise by the decree of the court are known as Farqat.

Talaq in its literal sense means "the taking off of any tie or restraint". The right of divorce is conceded in Muslim law, but the law prohibits its exercise by threats of divine displeasure, "it was", says Baillie, originally forbidden and is still disapproved, but has been permitted for the avoidance of greater evils.

A divorce can be initiated by the husband, but in some rare cases, it can also be done by the wife, by consent of both parties, or by operation of law. In Muslim law, the concept of a null marriage was essentially nonexistent. It was possible to request an annulment of marriage from the Kazi in situations where a minor had the legal ability to reject the marriage or choose to enter puberty.

Divorce is the term for the dissolution of a marriage when it ends by the act of the parties. According to Muslim law, a divorce can be granted either through the parties' own actions or through a court order. Divorce is regarded as an exception to the status of marriage in Islam. The prophet proclaimed that divorce is the worst thing that has been legalized.

The Gauhati High Court in Musst. Rebun Nessa v. Musstt. Bibi Ayesha & others, AIR 2011 Gauhati 36, have observed that the correct law of Talaq as ordained by the Holy Quran is that (i) Talaq must be for a reasonable cause; (ii) that it must be preceded by an attempt of a reconciliation between the husband and the wife by two arbiters, one from the wife's family and the other from the husband. If an attempt fails, talaq may be effected.

Marriages can be dissolved by either the act of the husband or by an act of the wife. A husband can end their marriage without giving a reason. It is sufficient to pronounce the words that indicate a man's intention to divorce his wife; typically, a talaq is used to accomplish this. But he also has the option of divorcing his wife through ila and zihar, which are merely formalities and not true divorces.

A wife cannot decide to end her marriage on her own. Only in cases where the husband has granted her this authority or in accordance with a contract can she divorce the husband. It was agreed that a wife could divorce her husband either through Mubaraat or Khula. Prior to the Dissolution of Muslim Marriage Act of 1939, a Muslim wife had no other grounds for divorce than a husband's false accusation of adultery (lian), insanity, or impotence. But the Dissolution of Muslim Marriage Act, 1939 now lays down several other grounds on the basis of any one of which, a Muslim wife may get her marriage dissolved by an order of the court. Islam provides a modern concept of divorce by mutual consent. Today, this is known as the breakdown theory of divorce.

The modern breakdown theory of divorce forbids the court from delving into the reasons why marriages fail. Islam has a policy of avoiding court proceedings in divorce cases whenever possible. The Holy Prophet forbade his people from engaging in divorce, categorically declaring it to be the worst of all permissible things. Despite the fact that the Holy Prophet significantly altered the pre-Islamic divorce system in order to protect women from exploitation and give them a status equal to men as well as a sense of moral, social, and financial security from infancy to motherhood.

The current position is that the dissolution of marriage under Muslim law can be classified under three heads:

1. Extra judicial divorce.

It can be again divided into three:

i) Divorce at the instance of husband (talaq)

In this, there are two types of dissolutions:

a) talaq pronounced by the husband himself;

b) talaq delegated by the husband (talaq-i-tafweez).

ii) Divorce at the instance of wife:

Under this heads, falls

a) khula

b) ila

c) zihar

d) Lian.

iii) Divorce by mutual consent (mubaraat).

2. Judicial separation.

3. Judicial divorce.

Position of 'Triple Divorce' in Shariat

The Muslim Personal Law (Shariat) Application Act of 1937 legalized and allowed the practice of Triple Talaq which gave a Muslim husband special privileges over his wife. Talaq-ul-Biddat, also known as Talaq-ul-Bain is an irrevocable form of divorce and hence is a disapproved mode of divorce. Biddat means disapproved, wrong innovation or to some extent, forbidden. In common parlance, this is also called 'instant triple talaq'.

The Talaq-ul-Biddat has 2 forms:

a) Triple irrevocable talaq.

b) Single irrevocable talaq.

It is recognized only under Sunni law. A peculiar feature of this talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. The Prophet never approved a talaq in which, there was no opportunity for reconciliation. Therefore, the irrevocable talaq was not in practice during his life. The talaq-ul-biddat has its origin in the second century of the Islamic era.

Following are the requirements of a triple form of talaq:

1) Marriage must be consummated.

2) Triple pronouncement of talaq must be made, such as "I divorce thee, I divorce thee, I divorce thee" or such pronouncement may be made in one sentence such as, "I divorce thee thrice or triply" or the husband may say "I release you from the marital bond by giving three Talaqs".

3) Such pronouncement may be made any time, either in a period of tuhr or even during menstruation.

4) Such pronouncement may be made even if the husband had sexual intercourse with her since the last menstruation.

5) Marriage is dissolved immediately on the irrevocable pronouncement of talaq

The essential feature of a talak-ul-bidaat is its irrevocability. One of tests of irrevocability is the repetition three times of the formula of divorce within one tuhr. But the triple repetition is not a necessary condition of talak-ul-bidaat , 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 talak-ul-bain (irrevocable divorce)", the talak is talak-ul-bidaat or talak-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 effect an irrevocable divorce.

Validity of 'Triple Divorce' under Muslim Law

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

"talak-ul-biddat or talak-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 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 talak 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.

The above observation of the court was the 'obiter dicta' of the judgment but it helped in mobilizing public opinion.

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, the Apex Court further observed that the talak to be effective has to be pronounced. The term 'pronounce' means to proclaim, to utter formally, to utter rhetorically, to declare, to utter, to articulate a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talak on the date of the delivery of the copy of the written statement to the wife. The husband has to prove by adducing evidence of the pronouncement of talak.

In 2017, by a five-judge bench of the Supreme Court with a ratio of 3:2, the court declared Talaq-e-Biddat unconstitutional in the case of Shayara Bano v. Union of India, (2017) 9 SCC 1. It was declared unconstitutional on grounds of being arbitrary and against the Quran. The majority held that the practice was not covered by the Quran and therefore could not be protected under Article 25.

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