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.

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

Among almost all the nations of antiquity, divorce was regarded as a natural corollary or marital rights. Romans, Hebrews, Israelites etc. all had divorce in one or the other form. Even though the provision of divorce was recognised in all religions. Islam is perhaps the first religion in the world which has expressly recognised the termination of a marriage by way of divorce.

According to Ameer Ali, the reforms of Prophet Mohammad marked a new departure in the history of Eastern Legislation. The Prophet of Islam is reported to have said "with Allah, the most detestable of all things permitted is divorce", and towards the end of his life he practically forbade its exercise by men without the intervention of an arbiter or a Judge. The Quran Ordains,

" ...if ye fear a breach between them twain (the husband and the wife) appoint an arbiter from his folk and an arbiter from her folk. If they desire amendment, Allah will make them of one mind".

The Quran permits divorce partly because of some countenance to the customs and partly to enable men to get rid of an odious union.

Prophet Mohammad restrained the power of divorce and gave to the woman the right of obtaining separation on reasonable grounds. The Prophet is reported to have said,

" if a woman be prejudiced by a marriage, let it be broken off."

Under Muslim Law, 'Triple Divorce' is the practice where a Muslim man can divorce his wife by simply uttering the word "talaq" three times in succession. This form of divorce is considered to be irrevocable, meaning that the couple cannot remarry unless the wife marries another man and gets divorced again. This practice of 'Triple Divorce' has been the subject of much debate and has been challenged in various courts across the world.

In India, the Supreme Court in the case of Shayara Bano v. Union of India, (2017) 9 SCC 1, declared the practice of triple talaq as unconstitutional and violative of Article 14 (right to equality) and Article 21 (right to life and personal liberty) of our Indian Constitution. The Court held that triple talaq was arbitrary and not an essential part of Islamic law. The Court also observed that the practice of triple talaq was a form of discrimination against Muslim women and that it violates their right to equality.

In the case of Danial Latifi v. Union of India, (2001) 7 SCC 740, the Supreme Court held that the provision of "triple talaq" in one sitting is not in accordance with the Holy Quran, hence it is bad in law.

In the case of Shamim Ara v. State of UP & Others, (2002) 6 SCC 518, the Supreme Court held that the provision of "triple talaq" in one sitting is not a part of the essential religious practice, hence it cannot be protected under the right to freedom of religion.

In conclusion, the validity of 'Triple Divorce' under Muslim Law has been challenged in various courts and has been declared unconstitutional and violative of Indian Constitution. The courts have held that it is not in accordance with the Holy Quran and not an essential part of Islamic law. The courts have also held that it is not a part of the essential religious practice and cannot be protected under the right to freedom of religion.

No place for 'Triple Divorce' in Shariat

The practice of 'triple divorce' (talaq-e-biddat) has been widely criticized for being discriminatory towards women, as it allows men to easily terminate a marriage without any regard for the well-being of their wives. This form of divorce is considered to be irrevocable, meaning that the couple cannot remarry unless the wife marries another man and gets divorced again. This practice is not in line with the principles of gender justice and equality, which are fundamental to the Islamic faith.

Many scholars and Islamic jurists argue that the practice of 'triple divorce' is not in accordance with the Quranic teachings and that it is a later development in Islamic law, which has been misused and abused by some men to oppress women. The Quran lays down a process of divorce that involves arbitration and reconciliation, and it also encourages the husband and wife to attempt to resolve their differences before proceeding with the divorce.

In addition, many Islamic countries and communities have reformed their laws and practices to align with the principles of gender justice and equality, and have abolished or restricted the practice of 'triple divorce'.

In conclusion, it is argued that the practice of 'triple divorce' has no place in Shariat as it is discriminatory towards women and not in line with the principles of gender justice and equality, which are fundamental to the Islamic faith. Additionally, it is not in accordance with the Quranic teachings and it is a later development in Islamic law, which has been misused and abused by some men to oppress women.

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