It has been more than 6 years of passing the judgment by Hon’ble Supreme Court in case of Shayara Bano vs Union Of India And Ors. declaring the practice of triple Talaq unconstitutional as the said practice in Muslim society violets the fundamental rights of Muslim wife and even after 3 years of the enactment of law by parliament Muslim Women (Protection of Rights on Marriage) Act, 2019 there are still a lot of confusion/questions prevailing regarding divorce practices among Muslims and also the effect of judgment passed by Hon’ble Supreme Court and law laid down by the parliament in this regard.
This article is an effort to summarize the prevailing practices and changes brought after progressive steps taken by Indian judiciary and parliament towards the equalizing the rights of husband and wife to get divorce.
PRACTICES OF DIVORCE PREVAILING IN MUSLIM SOCIETY BEFORE AND AFTER THE JUDGMENT PASSED BY HON’BLE SUPREME COURT AND LAW LAID DOWN BY PARLIAMENT
That all other practices of divorce except “talaq-e-biddat or triple talaq” are still prevailing in Muslim Society and Judgment passed by Hon’ble Supreme Court and Law laid down by parliament had no effect on these following practices:
Talaq-ul-Sunnat (Revocable Talaq/Approved mode)
- Talaq-ul-Sunnat is regarded to be approved form of Talaq and there is possibility of compromise and reconciliation between husband and
It is further sub-divided into:
- Ahsan (Most Proper): In the Ahsan Talaq there is a single declaration during the period of The reason being the most proper is two- fold: there is possibility of revoking the pronouncement before expiry of the iddat period. Secondly, the evil words of talaq are to be uttered only once.
- Hasan (Proper): In this form too, there is a provision for revocation. In this practice words of Talaq are to be pronounced three times in the successive
In the case of Sayid Rashid Ahmed v. Anisa Khatun, Justice Baharul Islam observed that, “Reasonability as an essential for Talaq; Reconciliation attempts by the elders or the well-wishers of the family to be of utmost importance before commencement of Talaq” and “it may be effected” if the said effects fails. An attempt at reconciliation by two relations one each of the parties, is an essential condition precedent to Talaq.
Talaq should be preceded by the reconciliation attempts. The Gauhati High Court in the case of Rukia Khatun v. Abdul Khalique Laskar, it was held that Talaq was only to be pronounced after failed attempts between the husband and the wife, after each appointed an arbitrator to solve the dispute. Without reconciliation, the commencement of divorce is held to be in contempt with the saying of the Holy Quran.
This observation was upheld by the Justice Badar Durrez Ahmad of the Delhi High Court in the case of Masroor Ahmad v. State (N.C.T of Delhi) & Another, and he further held that;
“Reconciliation before the procedure of the divorce is of utmost importance and is in concurrence with the Holy Quran. It is of utmost necessity to follow the procedure of divorce as written in Quran and proper reasoning to be given before the commencement of the Divorce”
Ila:
In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably.
Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.
Zihar:
In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the given period Zihar is complete. According to Shia law, Zihar must be performed in the presence of two witnesses.
After the expiry of fourth month, the wife has following rights:
- Approach court to get a decree of judicial divorce;
- Approach court to grant the decree of restitution of conjugal
Where the husband wants to revoke Zihar by resuming cohabitation within the mentioned period, the wife cannot seek judicial divorce.
It can be revoked after performing certain practices by the Husband.
DIVORCE BY MUTUAL AGREEMENT
Khula and Mubarat:
They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. Once the husband gives his consent, it results in an irrevocable divorce.
The husband has no power of cancelling the Khula on the ground that the consideration has not been paid. The consideration can be anything; usually it is mahr, the whole or part of it. But it may be any property though not illusory. In Mubarat, the outstanding feature is that both the parties desire divorce.
Thus, the proposal may emanate from either side. In Mubarat both, the husband and the wife, are happy to get rid of each other. Among both, Shias and Sunnis, Mubarat is irrevocable. Other requirements are the same as in Khula and the wife must undergo the period of Iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.
DIVORCE BY WIFE:
The divorce by wife can be categorized under three categories:
a. Talaaq-i-tafweez:
Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently. A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated.
b. Lian:
If the husband levels false charges of adultery against his wife then this amounts to character assassination and the wife has got the
right to ask for divorce on this grounds. Such a mode of divorce is called Lian.
c. By Dissolution of Muslim Marriages Act 1939:
A woman married under Muslim law shall be entitled to obtain a decree on the grounds of mentioned u/s 2 of the Act.
- The husband missing for 4
- Husband’s failure to maintain the wife for 2
- Imprisonment of husband for 7
- Husband’s failure to perform marital obligations for 3
- Husband’s
- Husband’s insanity, venereal
- Option of puberty by
- Cruelty by
CHANGES BROUGHT BY PARLIAMENT AFTER JUDGMENT PASSED BY HON’BLE SUPREME COURT OF INDIA:
TALAQ-E-BIDDAT OR TRIPLE TALAQ
That Supreme Court vide Shayara Bano vs Union Of India And Ors. had declare the “TALAQ-E-BIDDAT OR TRIPLE TALAQ” as unconstitutional considering it undesirable, ‘sinful’ and considering this kind of instant divorce not the norm within Islam, but a rarity.
That Supreme Court after observing that the Practice of Talaq-e-Biddat or Triple Talaq (that is instant, irrevocable, unilateral divorce by husband by formula of pronouncing divorce three times), is not protected by Art. 25 as it is not an essential religious practice triple. Court further observed that the this form of talaq is against the basic tenets of Quran and thus violates the Shariat. Hon’ble Supreme Court in Shamim ara, (2002) it made a specific finding as to how Triple Talaq does not adhere to Quranic principles and therefore is bad in
both theology and law. Triple talaq cannot be treated as essential religious
practice merely because a practice is widespread and has been continued and practiced for long thus, declared illegal and set aside.
NIKKAH HALALA:
Nikkah Halala is important to note in addition to Talaq-e-Biddat. This is a stringent condition laid down in order to restrict the husband to the form of Talaq-e-Biddat as this talaq is pronounced in hastiness by the husband. The condition is that if the husband wants to remarry the wife to whom the talaq is
pronounced, He cannot remarry her unless the wife is married to another person and consummation must occur between them and thereafter the dissolution of marriage occurs. Such a type of marriage is called Nikkah Halala.
This is also called as Tahleel marriage. Then after dissolution, the first husband could remarry her. If the marriage is done without this condition being satisfied it would be an irregular marriage.
MUSLIM WOMEN ON THEIR THE RIGHT TO DIVORCE
After Supreme Court’s verdict whereby Triple Talaq was declared as unconstitutional, a need was arisen to enact a law which not only prohibit such practice but penalize the person who follow such practices.
Considering the directions passed by Hon’ble Supreme Court Parliament enacted Muslim Women (Protection of Rights on Marriage) Act, 2019 is an Act to protect the rights of married Muslim Women and to prohibit divorce by pronouncing Talaq by their husbands and to provide for matters connected therewith. The Act makes all declaration of Talaq, including in written or electronic form, to be void and illegal. It defines Talaq as Talaq-e-Biddat or any other similar form of Talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.
PROVISIONS:
Making Talaq to be illegal and void?
Section 3 says that any pronouncement of Talaq by a Muslim husband upon his wife, by words, which can be either spoken or written or it can be in electronic form or in any other manner which shall stand to be void and illegal.
What punishment is prescribed Under this Act for pronouncing Talaq?
As stated under Section 4 any Muslim husband who pronounces Talaq upon
his wife as referred under Section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and shall be liable to fine.
Are the Muslim Women entitled to allowance by her husband after talaq? Section 5 states that Muslim Women against whom such Talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount for allowance will be determined by the magistrate.
Are the Muslim women entitled to seek custody of minor children?
Under Section 6, a Muslim Woman against whom Talaq has been declared, is entitled to seek custody of her minor children and the manner of custody will be determined by the magistrate.
What makes this offence punishable and cognizable under this legislation? The offence will be cognizable, if the information relating to the offence is given by:-
- The married women (against whom Talaq has been declared), or
- Any person related to her by blood or marriage.
What is the process of obtaining bail by accused under this offence?
Under Section 7 sub clause (c), the Act provides that the magistrate may grant bail to the accused. The bail may be granted only after hearing the women against whom Talaq has been pronounced, and if the magistrate is satisfied that there are reasonable grounds for granting bail.
What is the punishment prescribed under the Act for the Muslim husband if Talaq is pronounced on Muslim women?
Section 4 defines that violation of Section 3 by the Muslim husband will subject him to the punishment which will be in the form of imprisonment for a term of 3 years along with the imposition of fine.
Remedy available to the Muslim husband under the Act?
Section 7 of the Act under which Clause (b) states that the offense as per this Act shall be compoundable which means that the victim or complainant can go for a compromise and at the instance of the complainant or married Muslim woman, the charges framed against the accused will be dropped but with the prior permission of the Magistrate which will include certain terms and conditions.
How provisions of Triple Talaq law are often misunderstood:
- Anti-triple talaq law together with Section 498A is proving destructive for the
In the Case of Rahna Jalal v. State of Kerala (2020), Hon’ble Supreme Court Bench led by Justice D Y Chandrachud observed that:
In the Muslim Women (Protection of Rights on Marriage) Act of 2019, a Mother-in-Law of the second Respondent (wife) cannot be accused of the offence of pronouncement of triple talaq under the Act as the offence can only be committed by a Muslim man (husband). It clearly shows that the act is being misunderstood.