Talaq Talaq Talaq!

What does the Holy Quran say ?

The Quran is divided into ‘suras’ (chapters). Each ‘sura’ contains ‘verses’, which are arranged in sections.

‘section’ 28 of ‘sura’ II  verse 223

“Your wives are as a tilth unto you ; So approach your tilth when or how ye will ; But do some good act for your souls beforehand ;  and fear God, and know that ye are to meet him (in the hereafter), and give (these) good tidlings to those who believe.”

‘Verse’ 223 postulates, that sex is as solemn, as any other aspect of life. It is compared to a husband-man’s tilth, to illustratively depict, that in the same manner as a husband-man sows his fields, in order to reap a harvest, by choosing his own time and mode of cultivation, by ensuring that he does not sow out of season, or cultivate in a manner which will injure or exhaust the soil. So also, in the relationship towards a wife, ‘verse’ 223 exalts the husband, to be wise and considerate towards her, and treat her in such manner as will neither injure nor exhaust her.

‘section’ 29 of ‘sura’ II verse 231

“When ye divorce women, and they fulfil. The term of their (‘Iddat’) either taken them back on equitable terms or set them free on equitable terms; But do not take them back to injure them, (or) to take undue advantage; If any one does that, He wrongs his own soul. Do not treat God’s signs as a jest, But solemnly rehearse God’s favours on you, And the fact that he send down to you The Book And Wisdom, for your instruction. And fear God, and know that God Is well acquainted with all things.”

Verse’ 231 provides, that a man who takes back his wife after two divorces, must not put pressure on her, to prejudice her rights in any way. Remarriage must only be on equitable terms, whereupon, the husband and wife are expected to lead a clean and honourable life, respecting each other’s personalities. The Quranic message is, that the husband should either take back the wife on equitable terms, or should set her free with kindness.

‘section’ 6 of ‘sura’ IV verse 34

“Men are the protectors and maintainers of women, because God has given The one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard In (the husband’s) absence. What God would have them guard. as to those women, On whose part ye fear disloyalty and ill-conduct, admonish them (first), (Next), refuse to share their beds, (and last) beat them (lightly); But if they return to obedience, Seek not against them means (of annoyance): For God is most high, great (above you all).”

The Quran declares men as protectors, and casts a duty on them to maintain their women. In order to be entitled to the husband’s support, the Quran ordains the women to be righteous, and to be devoutly obedient to the husband, even in his absence. ‘Verse’ 34, extends to the husband the right to admonish his wife who is either disloyal, or ill-conducts herself. Such admonition can be by refusing to share her bed, and as a last resort, even to beat her lightly. Thereafter, if the woman does not return to obedience, the husband is advised not to use means of annoyance against her.

The legal standpoint.

Amongst all the ancient nations, the right to divorce has been regarded as a natural corollary right. It was recognized by the Romans, Hebrews, Israelis etc. in one form or the other. Prophet Mohammad restrained the power of divorce and gave to the woman the right of obtaining separation on reasonable grounds. The Prophet is believed to have opined “if a woman is prejudiced by a marriage, let it be broken off.”

“Talaq is an act of repudiation of marriage by the husband in exercise of his power which has been conferred on him. The term divorce includes all separation originating from the husband and repudiation for Talaq in the limited sense namely for separation effected by use of appropriate word. Under the muslim law a marriage is dissolved either by the death of the husband or wife or by divorce. After the death of the wife, the husband may remarry immediately but the widow cannot remarry before a certain specified period called “iddat” expires. The iddat of death is four months and ten days in case of death of the husband and if she is pregnant, until delivery of child. Generally, both the parties to the marriage contract have an option for divorce, but the husband’s right in this respect is much greater than that of the wife. The husband can dissolve the marriage tie at his will. But the wife cannot divorce herself from her husband without his consent. She can, of course, purchase her divorce from her husband and can have the marriage dissolved by Tafweez (delegation), Marriage may also be dissolved by Judicial decree under the Dissolution of Muslim Marriage Act, 1939.” (See Pg. 164 of Aqil Ahmad’s “Mohammedan Law” revised by Prof. Iqbal Ali Khan)

A Talaq may be effected either orally (in spoken words) or in writing (in form of a written document called Talaqnama). Among the Sunnis, talaq may be given orally or even in writing but the Shias do not recognize tlaq in writing unless the husband is physically incapable of pronouncing it. Where according to the Sunni Law, no witnesses are required to be present at the time of pronouncing talaq while under Shia Law, the presence of two male witnesses is necessary. Under Shia Law, intention is a necessary ingredient which is not considered necessary in Sunni Law meaning thereby that a talaq pronounced under intoxication or compulsion or in jest is invalid under Shia law but very much valid in Sunni law.

Different modes of Talaq include

  1. Talaq-ul-Sunnat
  2. Talaq-ul-Biddat
  3. Ila
  4. Zihar

Talaq-ul-Biddat is a the most controversial form of Talaq which is recognized among the Hanafis. Shia laws don’t recognize this practice but Sunni  Law recognizes talaq-ul-biddat, though Sunni people believe it to be sinful. The practice of talaq-ul-biddat includes:

  1. Three pronouncements (I divorce thee) are to be made during a single tuhr(period when a woman is not menstruating) either in one sentence or in three separate sentences.
  2. A single pronouncement (I divorce thee irrevocably) made during a tuhr, clearly indicating an irrevocable intention to dissolve the marriage.
  3. Under the talaq-ul-biddat, once a definite complete separation has taken place, the parties which have been separated cannot remarry each other again without the fulfillment of a condition according to which the woman has to marry another man and get divorced from him to remarry her ex-husband.
  4. Talaq-ul-biddat becomes irrevocable once written or pronounced.

The present situation.

The Constitutional bench comprising of former Chief Justice J.S Khehar, Justice K. Joseph, Justice R.F Nariman, Justice UU Lalit, Justice S. A Nazeer, in the case of Shayra Bano v. Union Of India and ors. Ministry of Women and Child Development Secretary on 22.08.2017 declared the practice of Triple Talaq as unconstitutional by 3:2 majority. Justice K. Joseph, UU Lalit and RF Nariman delivered the majority judgment while Chief Justice Khehar and Justice Abdul Nazeer dissented.

The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was passed by the Lok Sabha on 28th December without debate and discussion. But it has not been passed by the Rajya Sabha yet. The bill passed by Lok Sabha includes sections like:

Section 3- Talaq to be void and illegal.

Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.

Section 5 – Subsistence Allowance

Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced, shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children as may be determined by the Magistrate.

Section 7 – Offences to be cognizable and non-bailable

Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the said Code.

The muslim women going through tremendous anguish, suffering and angst surely see a ray of hope in this legislation. Are we progressing towards the idea of a uniform civil code?

-Tushar Kaushik

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