There are two categories of divorce under the Muslim law:
The category of extra judicial divorce can be further subdivided into three types, namely,
The Judicial divorce category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.
‘Triple Talaq’ is the term used to signify the methodology of divorce in Islam. Usually the term is used to signify that after saying divorce three times, the couple cannot be together.
In Sharia law, there are broadly two kinds of talaq :
Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. In Islam, divorce is considered as an exception to the status of marriage.
Under the “Shariah” law in India, there are three forms of Express divorce- Ahsaan Talaq, Hasan Talaq (both are forms of Talaq-ul-sunnat) and Triple Talaq (Talaq-ul-bidaat).
A single pronouncement of Talaq (‘I divorce you’) is made by the husband during wife’s menstruation free time (called Tuhr). In another form of express divorce – Hasan Talaq, the Husband is required to make three pronouncements during consecutive menstruation free period of his wife. Divorce becomes effective after the third declaration if it has not been revoked earlier. And the most popular form of Talaq is instant ‘Triple Talaq’ or (Talaq-ul-bidaat). it is also the most controversial.
This Talaq is also known as Talaq-ul-Bain. The most distinctive feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Sharia. It commands neither the sanction of Holy Quran nor the approval of the Holy Prophet.
There have been Numerous court judgements which have established that Triple Talaq is invalid and have set some definite requirements for its validity.
In Masroor Ahmed v. State (NCT of Delhi) [2008 (103) DRJ 137 (Del.), Triple Talaq was held to be one revocable Talaq meaning that the divorce can be revoked at any time before the completion of a waiting period of 90 days (called Iddat) after which the marriage is dissolved. Talaq must be for a reasonable cause. (Talaq given in anger is not valid).
In Riaz Fatima v Mohd. Sharif [(2007) DMC 26], evidence must be given by the husband of the reasons that has compelled him to seek divorce. A proof that talaq was proclaimed thrice in the presence of witnesses or in the letter must be provided and an attempt of reconciliation has been made. There has to be proof of payment of meher (dowry) amount and observance of iddat (the period of waiting by a woman after divorce or the spouse’s death before she can marry again).
While many Muslim countries have amended their legal strictures in terms of divorce procedure, India, as far as this practice is concerned, continues to be stuck in the medieval age by continuing to uphold provisions of the archaic Muslim Personal Law (Shariat) Application Act 1937.
Although there has been a wave of debates, petitions and uproar over the constitutional validity of this mode of Talaaq, the archaic law continues to persist in India due to country’s rules protecting Muslim, Christian and Hindu communities following religious law.
India being a Hindu majority nation has to assure the Muslim community that it is not doing injustice with them. And in order to appease the Muslim community, Indian political leadership refrains from taking a risk of involving their personal laws. The frequent communal riots are an example of the sensitivity of the personal laws in India. Furthermore, any attempt to trifle with these laws is met with ferocious opposition from religious boards like All India Muslim Personal Board and other Authorities, who support that there is no scope of change in the triple talaq system. Their contention is that the abolition of triple talaq would be contrary to the teachings of the Quran; second, that men are more capable of making decisions; third, that polygamy, although not desirable, is Islamic and that it actually helps rather than hurts women; and fourth, that the Supreme Court does not have the right to intervene in religious law.
After first divorce, there is a waiting period. This waiting period is called iddah and depends on the state of the woman (usually three menstrual cycles). The couple can reunite in this iddah without having to have a new marriage contract.
After this period has ended and the couple wants to reunite then there will be a new marriage contract and new mahr’ (dowry given by the groom to the bride.) If the husband does not want his wife back then after this iddah, the woman can marry another person.
Majority of Muslim population work as per the Sharia law. Sharia is derived from the religious precepts of Islam, particularly the Quran and the Hadith.
In Sharia law, a couple which undergoes a divorce cannot remarry unless the woman marries another man, consummates the marriage and then her second husband dies or divorces her. In this case, the marriage (Nikah) of the women with her second husband is called Nikah Halala.
Muslim women in India can get a divorce from their husband through two customary ways –
However, divorce through personal Sharia law has to be under the scrutiny of Quazi, mostly guided under the regulations of All India Muslims Personal Law Board (AIMPLB).
A husband may delegate his power to give Talaq to any third party or even to his wife. 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. This delegation is called tafweez. An agreement made either before or after the marriage providing that the wife is at liberty to divorce her husband under certain specified conditions is valid, provided that such power is not absolute and unconditional and that the conditions are reasonable and are not opposed to public policy. Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis.
If the husband points false charges of unchastity or adultery against his wife, then this amounts to character assassination and the wife will have the right to ask for a divorce on these grounds. Such divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behavior and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behavior of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian.
Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April 1936. It, however, became law on 17th March 1939 and thus stood the Dissolution of Muslim Marriages Act 1939.
Section 2 of the Act runs thereunder:
A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds:-