This article is written by Chalamalasetti Lakshmi Naga Sai of 4th Semester of ICFAI law School, Hyderabad
ABSTRACT
This research paper starts with introduction of marriage and divorce in Muslim law. Then the paper proceeds with explaining the various types of dissolution of marriage under Muslim law. Then paper gives a detailed explanation about divorce by husband in which Talaq-ul-sunnat and talaq-ul-biddat are included. Then paper gives the reader a brief insight about history of triple talaq and then this research paper gives a detailed analysis of shayara Bano vs union of India case and this will be followed by providing legal developments after shayara Bano case, and the research paper proceeds with highlighting the main elements of Muslim women (protection of Rights on marriage) Act 2019.Then “Zihar will be explained in detail and this research paper ends with conclusion by comparing situations in pre-Islamic period and contemporary society regarding talaq-ul-biddat and Zihar.
KEY WORDS
Talaq-ul-biddat, Zihar, Talaq, Islamic, shayara Bano
INTRODUCTION
Islamic law recognises Muslim marriage, also known as Nikah, which is a holy and legitimate union of a man and a woman. The purpose of the religious and social institution known as nikah is to unite two people via a relationship built on respect, affection and understanding. A nikah is a detailed contract that details all of the rights and responsibilities of both spouses. It specifies dowry payment requirements, obligations shared by the husband and wife, and divorce procedures. Muslim law emphasises the significance of both partners’ consent and their freedom to act as they like in the Nikah contract. Due to this, for an agreement to be valid, each party ought to freely agree to its terms and conditions.[1]
A marriage ends by divorce, while there are two ways to end a marriage in accordance with Islamic law i.e., Divorce and Talaq. These two names are interchangeable in daily life, but in Islamic law, a person who wants a “divorce” is subject to the rules of the Dissolution of Muslim Marriage Act of 1939. In contrast, Muslim personal law governs “Talaq” processes.[2]
DISSOLUTION OF MARRIAGE UNDER MUSLIM LAW
There are four ways in which Muslim marriage can be dissolved, they are
- By husband
- By wife
- Through mutual consent
- Judicial process
This research paper mainly analyses divorce by husband. Husband can dissolve the marriage either by “Talaq-ul-sunnat” or “Talaq-ul-biddat”
TALAQ-UL-SUNNAT
This is a kind of divorce which conforms with traditions, again there are two types in talaq-ul-sunnat they are
- “Talaq -e-Ahsan”
- “Talaq-e-Hasan”
“Talaq-e-Ahsan” is considered as very good forms of divorce
process
1. During the wife’s Tuhr, the husband is required to utter only one Talaq. The wife’s parity period, or Tuhr, is when she is on her period. As a result, the window of opportunity for cohabitation is the period of Tuhr. But a Talaq can be issued against a woman at any time if she is exempt from menstruation because of old age or pregnancy.[3]
2. The wife is required to observe Iddat period of three months following this single proclamation. the Iddat period will be extended if the wife is pregnant at the time of first pronouncement. There shouldn’t be any reversal of the Talaq by the husband after completion of Iddat period.[4]
The Talaq becomes irrevocable after the Iddat time if the husband does not voluntarily or by consummation cancel it. Still, the husband has the option to withdraw the talaq throughout the iddat time. The cancellation may be expressed formally or inferred. If there is even a single instance of cohabitation during this time, the Talag is cancelled and it is assumed that the husband and wife are reconciled.[5]
“Talaq-e-Hasan” is considered as good form of divorce in Islamic law. This “Talaq” is additionally recognised as the legitimate and authorised version of “Talaq”. There is a revocation clause included in both of these forms. But this is also not the best method of “Talaq”.
Procedure to be followed
1. The husband must only make one Talaq declaration throughout the “Tuhr” term.
2. Another single proclamation is made for the second time in the next “Tuhr”.
3. The husband is to make the third proclamation in the third period of purity if there is no revocation after the first or second declaration (“Tuhr”). The third statement makes the Talaq final, the marriage ends, and the wife is then compelled to observe the prescribed Iddat.
The wife begins to observe the iddat period only after the third pronouncement, and no revocation can be performed after the third pronouncement. Revocation in Hasan Talaq is only permitted during “Tuhr”, specifically between the first and second pronouncements and the second and third pronouncements.[6]
“TALAQ-UL-BIDDAT”
This practice came into existence by innovation not by traditions. This is also called as “Triple talaq”
Process-Here husband pronounces “Talaq” for three times at a time. In this kind of divorce there is no time for reconciliation and arbitration. That is the reason, this is unapproved form of dissolution of marriage.
BACKGROUND OF “TRIPLE TALAQ”.
The Prophet forbade the practise of triple-talaq, which is not mentioned in the holy Quran. Once the Prophet passed away, the Arabs invaded Egypt, Persia, Syria, and other Middle Eastern nations, and they discovered that the ladies there were more enticing than those in Arabia. Women from the conquered nations stipulated that if Arabian men wanted to have relationship with them, they should immediately divorce their wives. The men of Arabia enthusiastically consented to this since, according to Islam, talaq can be cancelled in a single process and is inconsistent. This allowed the men of Arabia to keep their wives while engaging in sexual relations with other women because the talaq was void and could, thus, be revoked at any time.
Upon witnessing the egregious exploitation of religious principles by such men to quench their unjust lust, the second Caliph Umar ordered quick triple talaq to be irrevocable. To put an end to the unethical practises that were then common, the governor approved the triple talaq practise. The Hanafi school of thought’s jurists gave this practise a theological sanctity and portrayed it as a vital Islamic practise, despite the fact that it was first implemented as a societal policy to safeguard the interests of women.[7]
ANALYSIS OF SHAYARA BANO JUDGEMENT.[8]
Brief facts of the case
Rizvan Ahmed and Shayara Bano were married. Rizvan Ahmed pronounced talaq for 3 times and the divorce became irrevocable.so shayara Bano filed a writ petition in supreme court of India and challenged three practices in Islam.
- Instant triple talaq
- Nikah halala
- Polygamy
Five judge bench was constituted to decide the case, supreme court framed two main issues in the case after considering all the facts.
- Whether triple talaq is an essential religious practice is Islam religion
- Whether the practice of triple talaq is violation of any fundamental rights guaranteed under constitution of India.
Judgement
- CJI Jagadish khehar and Abdul Nazeer observed that Triple talaq practice is a part of Muslim personal law and article 25 of Indian constitution provides every Individual “Right to religion”, so this practice was protected by this article, so judiciary cannot interfere in this matter, parliament has to decide whether triple talaq is valid or void by making a law.
- J. Rohinton Nariman and J.U.U. Lalit is of the view that all pre constitutional and post constitutional laws must be consistent with fundamental rights guaranteed by Indian constitution. According to “Article 13 of Indian constitution”, personal laws cannot be challenged, but this practice was not challenged under “Article 13”, this was challenges under “Article 14,15,21 and 25”. supreme court of India has the power to declare some provision as unconstitutional, if it violates fundamental rights. Instant triple talaq is arbitrary in nature and it also violates rights of women which is violation of fundamental rights under “Article 14 of Indian constitution”.so judiciary is having power to interfere in this matter.
- J. Kurian Joseph observed that triple talaq is un-Islamic practice, so it is not essential practice of Islam.as this practice lacks two prerequisites that are arbitration and reconciliation.
- So, by 3:2 ratio, it was decided that the practice of “Triple talaq” is unconstitutional.
LEGAL DEVELOPMENT AFTER SHAYARA BANO CASE
| August 2017 | Supreme court of India declared Triple talaq as illegal |
| 2017 | There are repeated instances of violations, so there is a need to make law against Triple talaq. |
| December 2017 | Lok Sabha passed Muslim (protection of rights on marriage bill)2017, but got lapsed in Rajya Sabha. |
| September 2018 | Cabinet made an ordinance in which Triple talaq is made as punishable offence and prescribed imprisonment for three years |
| July 2019 | This bill got passed by both Lok Sabha and Rajya Sabha and got assent by the president |
MAIN ELEMENTS OF MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT,2019
- Offence and penalty
The act declares triple talaq, whether there in written or in electronic form to be void and illegal
The act makes triple talaq a cognizable offence with imprisonment upto three years and fine.
- who can file a complaint?
only the wife (married woman) against whom talaq has been declared or any person related to her by blood or marriage can file a case on behalf of her.
- Bail
Bail may be granted by the magistrate, but only after hearing the woman and then, if the magistrate thinks that there are reasonable grounds for granting the bail.
Offence can be compounded by the magistrate on the request of the woman.
- Allowance and custody
The woman is entitled to seek subsistence allowance for herself and her dependent children, also the woman is entitled to seek custody of minor children.
“ZIHAR”
“Zihar” is another recognised divorce. In this style, the husband matches his wife to a woman who is within the prohibited degrees of relationship, such as his mother or sister. According to the spouse, the wife is now like his mother or sister. The man stays away from his wife for four months after making such a repulsive analogy. -The “Zihar” is finished at the end of the fourth month. But the union as a whole remains intact. The wife’s rights after the fourth month are as follows:
- She may apply for a legal divorce through the court or
- She may ask the court to issue a decree restoring conjugal rights.[9]
The wife cannot file for a judicial divorce if the husband intends to withdraw “Zihar” by starting a new relationship during the allotted time. However, it is wicked to live together with a wife who has been compared to a mother or sister. Therefore, even if the wife cannot obtain a legal divorce in this situation, she can nevertheless force the husband to make atonement for equating her to his mother or sister.[10]
The Husband must either feed sixty needy people, or observe a fast for two months, or free a slave as his penance in order to be cleansed of this wicked behaviour. It should be emphasised that the woman may demand the husband carry out the penance if she receives a court order for the restoration of her conjugal rights. The court may mandate a husband to do penance if a wife files a lawsuit for the restoration of their conjugal rights after the husband has performed Zihar but not expiation (penance).[11]
The admission of “Zihar” must have been made in front of two qualified witnesses in accordance with Shia law. “ILA” and “Zihar” as divorce procedures are now outmoded. Although the legal framework for such a constructive divorce is still in place, it is not used in daily life. If a Muslim husband wishes to annul his marriage, he may do so through the “Talaq” procedure, considered straightforward and more practical than using “ILA” or “Zihar”.[12]
CONCLUSION
Although all religions recognised the possibility of divorce, Islam is arguably the first to explicitly acknowledge the dissolution of marriage through divorce. Divorce was a kind of torture in Arabian pre-Islamic culture. The husband had unrestricted authority to file for divorce. Such social and moral inequalities drew the Prophet of Islam’s attention, and he worked to remove these afflictions while protecting people’s freedoms and ensuring that marriage would last forever. Islam used the requirement that in the event of an irrevocable separation, the wife must marry another man and that this union be consummated before divorce as a powerful deterrent against frequent divorce and remarriage.[13]
According to Muslim law, both the husband and the wife have equal rights to end their marriage after the Supreme Court’s 2017 ruling invalidated “Triple talaq”. As they came to know each other after living together, two people may not know each other that well when they get married. Following that, choosing to live apart is the greatest option if the two are not compatible. So now the misuse of the triple talaq practice has been curbed by the supreme court in the case of shayara Bano vs union of India[14].
[1] Marriage under Muslim law, available at: Marriage under Muslim Law (lawctopus.com), (last visited on June 8,2023)
[2] Talaq under Muslim law, available at: Elucidating the provisions of Muslim Law on Divorce- iPleaders (last visited on June 8,2023)
[3] Types of talaq/Divorce in Islam/Muslim law, available at: TYPES OF TALAQ/ DIVORCE IN ISLAM / MUSLIM LAW – Tripaksha Litigation (last visited on June 9,2023)
[4] Ibid
[5] Id at 3
[6] Id at 3
[7] Triple Talaq: A historical and legal analysis: The said and the unsaid, available at: Triple Talaq: A historical and legal analysis: The said and the unsaid (legalserviceindia.com), (last visited on June 8,2023)
[8] AIR 2017 9 SCC 1
[9] What is Zihar under Muslim law in India?, available at: What is Zihar under Muslim Law in India? (shareyouressays.com),(last visited on June 9,2023)
[10] Id at 7
[11] Id at 7
[12] Id at 7
[13] Divorce under Muslim law: The concept, available at: Divorce Under Muslim Law: The Concept (legalserviceindia.com), (last visited on June 9,2023)
[14] Id at 5
