T he word “Talaq” these days is very much in news due to ongoing debate regarding implementation of Uniform Civil Code envisaged under Article 44 of Constitution of India.
PREMISE of UCC
Let me first give you a brief on Article 44 of Indian Constitution. This article is provided in Part IV of the constitution which provides for Directive Principles of the State Policy. This part of the constitution is not enforceable or justiciable i.e. it cannot be enforced in courts nor government can be sued for their non-implementation. They are just directives which ought to guide the State policy whenever and wherever the state promulgates a policy or ordinance and/or comes up with Legislative Act. If any other Article or Act of the parliament is in contravention to Article 44 or any Article of Part IV of the constitution, the former will prevail.
BACKGROUND of “Talaq”
Talaq in its literal sense means to separate and when this meaning is applied to a muslim marriage, it in all-purpose means end of the marriage. Muslim marriage is essentially a contract. A contract to legalise sex between two people of opposite gender. The law governing marriage and divorce in Muslims is essentially derived from Quran and Hadith/Hadees. Quran is the holy book while Hadith/Hadees refers to the saying/ruling of Prophet. Leading sources of Hadith are Sahih-Muslim, Sahih-bukhari, sunan-al sughra etc for Sunni Muslim and Nahj al-Balaghah by Imam Ali, Risalah al-Huquq by Imam Sajjad, Golden dissertation by Imam Redha , Al-Sahifat al-Ridha by Imam Redha , Al-Sahifa al-Sajjadiyya by Imam Sajjad etc for Shia Muslims.
“Talaq” in Shia and Sunni Islam
Various forms of Divorce in Islam are: –
- By husband- Talaq, ila, and zihar.
- By wife- Talaq-i-tafweez, lian.
- By mutual agreement- khula and mubarat.
Let’s keep our focus more on Talaq as it is the predominant form of divorce in Islam
TALAQ in SUNNIS
Sunnis have 2 categories of Talaq. One is Talaq-ul-sunnat and other is Talaq-ul-Biddat. Without going in the details for the sake of brevity, let me give you brief on either of the categories.
Talaq-ul-sunnat has 2 types of Talaq/divorce i.e. Talaq-ul-Ahsan and Talaq-ul-Hasan. There is not much of a difference between the two of them except the mode of saying of the word “Talaq”
Both have 3 steps: –
Both i.e. Ahsan and Hasan has initiation which means that the Husband will initiate the divorce by pronouncing “I divorce thee” once. This will initiate the talaq process.
After the Talaq has been initiated, Talaq can be revoked if couple repudiates by either vocal expression or by engaging in sexual act before the 3 months of initiation of talaq (if she is has stop menstruating) or before her 4th successive menstruating cycle i.e. within 3 successive menstrual cycle. The only difference between ahsan and hasan is that after each menstruation, in ahsan, the expression “I divorce thee” must be expressly said while in the case of hasan it is not necessary to expressly say it.
If the couple don’t reconcile within 3 successive “tuhr” or menstrual cycle, the divorce is complete. After completion, the woman is required to observe “iddah” waiting period to check for any pregnancy or if she is pregnant then the Iddah period is extended upto the birth of Child. A woman cannot marry during the ‘Iddah” period.
Both forms of talaq of talaq may seem reasonable as if in case the Talaq is initiated by Husband in haste, it always provides the scope of reconciliation and repudiation of at least 3 months (if we take the gap between each menstrual cycle as 1 month)
After the talaq is complete, couple cannot reconcile and marry again. The condition is that woman must marry another person, consummate it and then take divorce from that person and thereafter can marry the former husband.
While there are very few avenues for a Muslim woman to take divorce from her husband, legislature to fill the abyss of grounds to take divorce from husband enacted Dissolution of Muslim Marriages Act 1939. This legislative action act as medium for Muslim woman to take divorce from her Husband, on various grounds as mentioned in the Act itself, via Judicial decree passed by order. Before this Act, Muslim Woman had no right whatsoever to take divorce from her Husband except on the grounds of false charges of adultery, insanity or impotency of the husband.
The various grounds envisaged by Dissolution of Muslim Marriages Act 1939 is provided in the section 2 of the act which is as follows: –
A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:
(i)that the whereabouts of the husband have not been known for a period of four years;
(ii)that the husband has neglected or has failed to provide for her maintenance for a period of two years;
(iii)that the husband has been sentenced to imprisonment for a period of seven years or upwards;
(iv)that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
(v)that the husband was impotent at the time of the marriage and continues to be so;
(vi)that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
(vii)that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years; Provided that the marriage has not been consummated;
(viii)that the husband treats her with cruelty, that is to say;
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
(b) associates with women of evil repute or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal rights over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran;
(ix)on any other ground which is recognised as valid for the dissolution of marriages under Muslim law
Talaq-ul-Biddat/ Triple Talaq
We all are well versed with the meaning of the word Talaq, however, we must understand the meaning of the word “Biddat”. “Biddat” basically means innovation. This form of Talaq, namely triple talaq, has no mention whatsoever anywhere in the Quran or Hadith. This is a religious shortcut invented by Kings/Clergy to instantly marry a woman, to make sex with them legal and then after sex, divorce them immediately. This practise of Triple Talaq is not allowed in Shia Islam and is vehemently denounced by Shia Sect. This innovation is very predominant and prevalent during Mughal rule in India. This biddat allowed Mughal rulers to immediately divorce their wife by pronouncing the word “Talaq” thrice without any reconciliation period of atleast 3 menstrual Cycles. Thus if the word “Talaq” was said thrice in presence of 2 witness, the Talaq is complete. In Hanafi School of Jurisprudence of Sunni Islam it is not even mandatory that Husband needs to be in orientation and of rational mind, thus “Talaq” said thrice even in anger in front of 2 witness will complete the divorce.
JUDICIAL STAND ON Talaq-ul-Biddat/Triple Talaq
Supreme Court in in the Shamim Ara vs State of UP case–Justice RC Lahoti (who later served as the Chief Justice of India) said that a mere plea of talaq in response to the proceedings filed by the woman for maintenance cannot be treated as a pronouncement of talaq. In order to be valid, talaq has to be pronounced as per the Quaranic injunction. The judge described “pronounce” as “to proclaim, to utter formally, to declare… to articulate”.
Around the same time that year, in the Dagdu Pathan vs Rahimbi case, Justice B Marlapalle, presiding over the Aurangabad Bench of the Bombay high court, invalidated triple talaq by citing the following words from the Quran: “To divorce the wife without reason, only to harm her or to avenge her for resisting the husband’s unlawful demands and to divorce her in violation of the procedure prescribed by the Shariat is haram(forbidden).” The court declared that a Muslim husband cannot repudiate the marriage at will and has to prove that all stages – conveying the reasons for divorce, appointment of arbitrators and conciliation proceedings between the parties – were followed when the wife disputes the talaq before a competent court.