The end of Talaq-e-biddat
By Ajith Wagh
Dissolution of marriage by the husband under Muslim Law
Pre Islamic-Arabia consisted of both settled as well as nomadic tribes who practiced polytheistic religions and had a variety of practices which governed sexual relations between men and women. Many of these practices would not be recognised as marriage in today’s sense of the term.However, with the advent of Islam, such practices were codified and many of the practices were abolished. The right of a Muslim husband to dissolve his marriage is called talaq. The dissolution of Muslim marriage by the wife doesnot find mention in the Quran, however, in India such dissolution of marriages are governed by “The Dissolution of Muslim Marriages Act, 1939”.
The word Talaq is usually rendered as repudiation by the husband. It signifies the absolute power, which the husband possesses of divorcing his wife at will and all times and the divorce/ Talaq operates from the time of pronouncement of Talaq, for which the presence of the wife is not necessary. a.Ahsan, b. Hasanand c.talaq al bid'ah are the forms of talaq.Out of these three only the first two are in terms of the procedure prescribed by the Quran.There are four schools of Islamic jurisprudence among Sunni Muslims viz. Hanafi (majority in India), Maliki, Shafi'i and Hanbali. It is pertinent to note that talaq al bid'ah is followed only among the Hanafi school.
We shall discuss the various forms of talaq hereunder.-
Approved Form of Divorce
(i) talaq al-sunna: (i.e. in conformity with the dictates of the Prophet)
(a) ahsan (the most approved)
(b) hasan (approved)
Talaq al-sunna consists of one single pronouncement in a period of tuhr (purity, i.e. when the woman is free from her menstrual courses) followed by abstinence from sexual intercourse during that period of sexual purity (tuhr) as well as during the whole iddat.
If any such intercourse takes place during the periods mentioned, the divorce is void and of no effect.
[It is this mode or procedure which has been approved by the Prophet at the beginning of his ministry and is consequently regarded as the regular or proper and orthodox form of divorce.]
Ashan- A pronouncement such made in ashan form is revocable during iddat. Revocation can be done by express words or by conduct.
After expiration of Iddat the divorce becomes irrevocable.
Hasan- Hasan form of talaq is three successive pronouncements of talaq are made during three consecutive periods of purity (tuhr)
- Husband (H) pronounces talaq on his wife (W) for the first time when (W) is free from her menstrual courses. The husband and wife had not come together during the period of purity. This is the first talaq.
- H resumes cohabitation or revokes the first talaq in this period of purity. Thereafter in the following period of purity, at a time when no intercourse has taken place H pronounces the second talaq.
iii. This talaq is again revoked by express words or by conduct and the third period of purity is entered into. In this period, while no intercourse having taken place, H for the third time pronounces the formula of divorce.
- This third pronouncement operates in law as a final and irrevocable dissolution of the marital tie.
- As a consequence the marriage is dissolved; sexual intercourse becomes unlawfull; iddat becomes incumbent; remarriage between parties becomes impossible unless (W) lawfully marries another husband, and this other husband lawfully divorces her after the marriage has been actually consumed.
The ahsan form is ‘most approved’ because the husband behaves in a gentlemanly manner and does not treat his wife as cattle.
The Hasan ‘approved’ form was a method by which the Prophet tried to put an end to a barbarian pre-Islamic practice.
The practice was to divorce a wife and take her back several times in order to ill-treat her. The Prophet by the rule of irrevocability of the third pronouncement indicated clearly that such a practice could not be continued indefinitely. Thus, if a husband really wants to take his wife back he should do so; if not, the third pronouncement after two reconciliations would operate as a final bar.
Thus, it is clear that in these two forms there is a chance for the parties to be reconciled by the intervention of friends or otherwise. They are therefore the ‘approved’ forms and recognized both by Sunni and Shia laws.
Disapproved form of divorce
(a) talaq-e-biddat: (i.e. of innovation; therefore not approved)
(i) talaq al-ba’in - talaq by triple declarations in which three pronouncements are made in a single tuhr, either in one sentence, eg. “I divorce thee triply or I divorce thee, I divorce thee, I divorce thee.”
(ii) talaq al-ba’in (II)- Irrevocable pronouncement made either during the period of tuhr or even otherwise. This form of divorce is also called talaq al-ba’in and may be given in writing. Such a bill of divorcement comes into operation immediately and severs the marital tie.
Talaq- e-biddat and the Supreme Court of India
The practice of Talaq-e-biddat has been abolished by the Supreme Court has by its order dated 22.08.2017. There were many very important grounds taken to propagate the cause of Shayaro bano. However in this article we shall be restricting our discussion to a couple of grounds taken in I.A. 28 /2017 of the said Writ petition. Two of the grounds in the said I.A. that we shall be discussing in this article are as under.-
- talaq-e-biddat - Divorce in the absence of a marriage
- Not a Religious Practice - lacks protection of Article 25 of the Constitution of India
Talaq-e-biddat- Divorce in the Absence of a Marriage
The Ashan and Hasan form of talaq are undisputedly accepted by all the parties to be a valid form of Talaq under Islamic law. In view of this position the only logical consequence to follow with the utterance of talaq in ‘talaq-e-biddat’ is that - if a person utters more than one talaq in immediate succession, only the first utterance is valid. This utterance would result in either an ahsan or hasan form of talaq depending on whether the man has previously pronounced talaq to the same wife and if so on whether he had revoked the earliertalaq during the iddat period or remarried her after the period of iddat was over. The following any number of utterances can only be construed as the man repeating the said word only for the purpose of laying emphasis on the first utterance.
The subsequent utterances made thereto cannot be construed independent utterances of talaq. The reason being.-
- When the husband had first uttered talaq, the wife was in NIKAH. The immediate moment upon utterance of the first talaq the period of IDDAT commences upon the wife. Unless the husband revokes the first talaq either expressly by announcing that he revokes the talaq or by implication of his act of consummating the marriage thereafter before the IDDAT period is completed, there is no occasion for the husband to pronounce a second valid talaq. There is no provision in Quran where after the first utterance of talaq that the second utterance of talaq would be valid unless the first is either revoked during Iddat, or if iddat period is over and the couple had remarried.
- It is an established fact and understood as per principles of Islamic law as well as can be understood even by a layman that nobody has a right or capacity to announce talaq (effect divorce) without there being an existence of a marriage. As the first utterance of talaq results in immediate termination of marriage, the subsequent utterances would come at a stage when the man is no more in the state of marriage with the woman he is allegedly giving the subsequent talaq to. i.e. a divorce in the absence of a marriage.
iii. Three talaqus does not mean stating of three words of talaq, but it means three occurrences of talaq. Each occurrence consists of firstly a valid marriage, secondly a pronouncement of talaq and finaly completion of Iddat period. In the Quran talaq is never referred in the context of one, two, three talaqs but first, second and third talaqs. Therefore the second and third pronouncement of talaq in talaq-e-biddat is non-existent in terms of the provisions in Quran.
Not a religious practice (Lacks the protection of article 25 of the Constitution of India)
What is protected under Article 25?
Article 25 of the Constitution of India guarantees the Right to Freedom of Religion. It guarantees that all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
- Thus, the right to perform religious rituals, customs, etc. as well as to hold religious beliefs and to propagate them are protected. The right to establish and run minority educational institutions also emerge from this provision.
What is not protected under article 25?
- Article 25 of the Constitution of India protects discrimination based on religion. i.e. there can be different laws for different religions butonly to the extant necessary to freely profess, practice and propagate religion.
- Article 25 however doesnot allow discrimination based on race, caste, sex, place of birth or any of them within the religion. Thus a child of religion A may have a right to inherit a certain percentage of property from his father, however a child of religion B may not have an identical right. However, a male child of religion A cannot have a different right of inheritance than a female child of the same religion A.
iii. The protection of Article 25 is always subject to public order, morality and health and other fundamental rights such as right to equality and equal protection of law, right against discrimination on the ground of race, caste, sex, place of birth or any of them, right to life, etc
- The protection under this article doesnot affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Why is Talaq-e-biddat not procted by article 25?
In the case of talaq-e-biddat there is discrimination based on sex among persons within the Muslim religion,because the right to give talaq by the Muslim husband is unfettered, whereas a Muslim woman seeking divorce has to file a civil suit and only on the grounds mentioned in Section 2 of The Dissolution of Muslim Marriages Act, 1939. Such a discrimination based on sex is within the same religion and therefore not protected under Article 25 of the Constitution.
Why is Talaq-e-biddat not a religious practice?
One of the conditions for a practice to be granted the protection enjoyed by personal law is that it should be a practice of religion and by inference sanctioned by that religion.
- After the Privy Council Judgment in Saiyid Rashid Ahmed vs. Aneesa Khatoon, A.I.R. 1932 P.C. 25 was pronounced the legal position in the pre-independent and post independent era has changed drastically. As per S.2 of Muslim Personal Law (Shariat) Application Act, 1937, dissolution of Marriage including talaq, are governed by the law of Shariat and therefore ceased to be an issue of religion or for that matter Muslim religion. Hence, the dissolution of marriage by Talaq in whatever format does not remain to be a religious issue after the Muslim Personal Law (Shariat) Application Act, 1937 was brought into force in the year 1937.
- Also, in the instant case the practice of talaq-e-biddat cannot be traced to the Quran, instead instances of the said practice being prohibited and being used as a punishable offence are to be found in Muslim law.The practice of ‘talaq-e-biddat’ has either been banned by statute in many Muslim countries where the practice was prevalent, or such a practice never existed in most Muslim societies. The said practice exists only in the Hanafi school of the Sunni sect of Muslims in India. Even the Hanafi school traces the practice pertaining to more than one talaq back only to the temporarily reforms of Caliph Umar and Ibne Abbas (raziyallahu-anhuma), which was introduced as a measure to punish such persons who pronounced talaq-e-biddat as it was considered by him to be an insult to the Quran. This practice was in violation of the principles of jury system of the Khilafah governed by His companions SAHABAH,TABAEEN, O TABA TABAEEN. It is even against the HIKMAH, ALFIQH, ASSUNNAH and preaching’s of Messenger Muhammad.Therefore the order issued itself was not in terms of the religion or in accordance with the religious practice. The practice of talaq-e-biddat even according to the Hanifi school is sinful. Hence the claim of talaq-e-biddat to be a religious practice doesnot hold ground.
By the judgment and order dated 22.08.2017 the Constitution bench of the Supreme Court of India has finally set aside the practice of talaq-e-biddat. The reasons stated in the said judgment are not limited to those discussed in this article, however the author has limited the discussion in this article on the grounds taken in I.A.28 of 2017 in Writ Petition Civil No.118 of 2016
The author is an advocate practicing at the Supreme Court of India. He is a progressive thinker and a rationalist actively involved in social causes. His very recent contribution in the triple talaq case before the constitution bench is much acclaimed.
Disclaimer:"The views in the article are of the author and do not represent the views of the Invisible Lawyer"