Talaq means freedom from the ties of marriage or dissolution of marriage by husband in accordance with the law. Islamic divorce laws recognize a man’s absolute right to give divorce to his wife without assigning any reason and at his own will. The law does not consider such talaq invalid even if the man is in jest, intoxicated or the wife is not present at the time when a husband announces talaq.
Talaq may be oral or written, in any form or expression, in absence of any witness and at the complete will of the husband. The word talaq must be a clear indication of the husband’s will to dissolve the marriage.
Talaq is of two kinds:
1. Talaq-ul-Sunnat or revocable talaq.
2. Talaq-ul-Biddat or irrevocable talaq.
TALAQ-UL-SUNNAT (REVOCABLE TALAQ)
It is the talaq, which is effected in accordance with the traditions of Prophet. It is regarded to be the approved form of talaq. Talaq-ul-Sunnat is also called as Talaq-ul-Sunna, which means divorce in accordance with the requirement of the traditions. It is a traditional mode of divorce, and approved by Prophet Mohammad, and is valid according to all Schools and Sub-Schools of Muslim law. As a matter of fact, the prophet always considered talaq as an evil. If at all this evil was to take place, the best formula was one in which there was possibility of revoking the effects of this evil. With this idea in mind, the Prophet recommended only revocable talaq; because in this form, the evil consequences of talaq do not become final at once. There is possibility of compromise and reconciliation between husband and wife.
It has been further sub-divided into:
- Talaq Ahsan (most approved form or most proper form):
This Arabic word ‘ahsan’ means ‘best’. It is also called ‘very proper’ form of talaq. This signifies that the talaq pronounced in the ahsan form is very best kind of talaq. Ahsan talaq is the most approved and best form of talaq. Ahsan means ‘very good’. The best feature this kind of talaq is that, it is revocable. So, hasty divorce can be prevented.
According to Hedaya, this method of divorce is the most approved because the companions of the Prophet approved of it, and secondly, because it remains within the power of the husband to revoke the divorce during iddat, which is three months, or till delivery.
This is the most proper form of repudiation of marriage because of two reasons:
- First, 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. Being an evil, it is preferred that these words are not repeated.
This mode of talaq consists of a single pronouncement of divorce made in a period of tuhr (purity, i.e., the period between two menstruations) or at any time if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period of iddat.
In case of a pregnant woman, there must be no sexual intercourse till the birth of the child. The requirement that pronouncement of should be made during a period of tuhr applies only to oral divorce. It does not apply to talaq in writing. Similarly, this requirement is not applicable where the parties have been away from each other for a long time, or when the marriage has not been consummated.
This talaq may be revoked either by express words or impliedly, by cohabitation within the iddat period. On such revocation, it is not necessary for the wife to undergo intermediary marriage. The husband can simply say ‘I have retained you’.
If cohabitation takes place even once during this period, the talaq is revoked and it is presumed that the husband has reconciled with the wife. When the period of iddat expires and the husband does not revoke the talaq either expressly or impliedly, through consummation, the talaq becomes irrevocable and final.
The characteristic feature of the Ahsan form of talaq is a single pronouncement followed by no revocation during the period of iddat. Therefore, where a husband makes any declaration in anger, but realizing his mistake afterwards, wants to cancel it, there is sufficient time for him to do so. Single pronouncement of talaq and sufficient opportunity to the spouses for reconciliation are the two reasons for calling this form as the ‘most proper’ form of talaq.
The Shias requires the presence of two witnesses at the time of pronouncement of talaq. If a man had sexual intercourse during her Pak (pure) period and wishes to divorce his wife, he should wait till she enters into menstruation and then again becomes Pak, only then she could be divorced. In case a husband had sexual intercourse during Pak period and separated from wife, like, if he proceeded on journey and wishes to divorce, then he should wait for at least one month.
- Talaq Hasan: (Approved form)
In Arabic, Hasan means “good”. While Ahsan means very good, Hasan means good. This kind of talaq is also regarded to be proper and approved form. In this form also, there is a provision for revocation. But it is not the best mode because evil words of talaq are to be pronounced three times in the successive tuhrs.This is also a kind of Talaq-e-Sunnat but considered less approved than Talaq-e-Ahsan.
In this form, the husband is required to pronounce the formula of talaq (i.e., the utterance of the words, “I divorce thee”) three times during three successive tuhrs. If the wife has crossed the age of menstruation, then the pronouncement of talaq may be made after an interval of 30 days between the successive pronouncements. It is therefore, “a divorce upon a divorce”, where the first and second pronouncements are revoked and followed by a third, only then talaq becomes irrevocable.
It is necessary that no intercourse should have taken place during the period of purity in which, the pronouncement has been made. For instance, when the wife is in tuhr, without having intercourse with her, the husband pronounces talaq. This is the first talaq. Then he revokes it by words or by intercourse. Again when she is in tuhr, and before intercourse, the husband pronounces talaq.
This is the second pronouncement. Husband again revokes it. Again, when the wife enters her third period of purity and before any intercourse takes place, husband makes a pronouncement of divorce. This is the third pronouncement. The movement the husband utters the third pronouncement, the marriage stands dissolved irrevocably.
TALAQ-UL-BIDDAT (IRREVOCABLE TALAQ)
This is also known as Talaq-ul-Bain. It is a disapproved mode of divorce. It is sinful form of divorce. It is the irregular mode of talaq introduced by omayyads in order to escape the strictness of law. Biddat means disapproved, wrong innovation or to some extent, forbidden. In common parlance, this is also called ‘instant triple talaq’. This form of talaq was allowed by second caliph of Islam, Omar. The Talaq-ul-Biddat has two forms:
- Triple irrevocable talaq. b) Single irrevocable talaq.
It is recognized only under Sunni law. The talaq-ul-biddat in any of its forms is not recognized by the Shias and Malikis. A peculiar 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. The Prophet never approved a talaq in which, there was no opportunity for reconciliation. Therefore, the irrevocable talaq was not in practice during his life. The talaq-ul-biddat has its origin in the second century of the Islamic era.
“The Talaq-ul-Biddat, as its name signifies, is the heretical or irregular mode of divorce, which was introduced in the second century of the Mohammedan era. (The Omayyad monarchs finding that the checks imposed by the Prophet on the facility of repudiation interfered with the indulgence of their caprice endeavoured to find an escape from the strictness of law and found a loophole to effect their purpose).
As a matter of fact, the capricious and irregular the power of the divorce which was in the beginning left to the husband was strongly disapproved by the Prophet. It is reported that, when once news was brought to Him that one of his disciples had divorced his wife, pronouncing the three talaqs at one and the same time, the Prophet stood up in anger on his carpet and declared that the man was making the plaything of the words of god and made him to take back his wife.
Triple talaq is a recognized; but it is a disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Shariat. It commands neither the sanction of Holy Quran nor the approval of the holy Prophet . It was also not in practice during the life time of first Caliph Abu Bakar and also for more than two years during the second Caliph Omar’s time. Later on, Hazrat Omar permitted it on account of certain peculiar situation.
Triple irrevocable divorce
In the Triple irrevocable Talaq, Talaq is pronounced in a single pronouncement, made during Tuhr and with a clear intention to irrevocably dissolving the marriage e.g., “I divorce thee irrevocably”.
Single irrevocable divorce
In the Single irrevocable Talaq, three pronouncements are made in single Tuhr, either in one sentence, “I divorce thee, thrice” or in separate sentences e.g.,I divorce thee, I divorce thee, I divorce thee”.
Following are the requirements of a single form of Talaq:
1) Marriage must be consummated.
2) A single irrevocable pronouncement of talaq may be made. Thus, if a husband says to his wife, “I had divorced thee in Talaq-ul-Biddat form”, it is enough and an irrevocable divorce will come into effect.
3) Such pronouncement may be made any time either in a period of tuhr or even during menstruation
4) Such pronouncement may be made even if the husband had sexual intercourse with her since the last menstruation.
5) Marriage is dissolved immediately on the irrevocable pronouncement of talaq.
The Talaq-ul-Biddat in any of its forms is not recognized by the Shia Law.
CURRENT SCENARIO IN INDIA
On 22 August 2017, the Indian Supreme Court deemed instant triple talaq (talaq-e-biddah) unconstitutional. Three of the five judges in the panel concurred that the practice of triple talaq is unconstitutional. The Muslim Women (Protection of Rights on Marriage) Bill, 2019 passed on 26 July 2019 after a very long discussion and opposition finally got the verdict (the Indian Supreme Court judgement of August 2017 to all women. It made triple talaq illegal in India on 1 August 2019, replacing the triple talaq ordinance promulgated in February 2019. It stipulates that instant triple talaq (talaq-e-biddah) in any form – spoken, written, or by electronic means such as email or SMS – is illegal and void, with up to three years in jail for the husband. Under the new law, an aggrieved woman is entitled to demand maintenance for her dependent children.
SHAYARA BANO VS UNION OF INDIA & Ors. , Writ Petition (C) No. 118 of 2016
Shayara Bano of Allahabad, who was separated from her husband through Triple
Talaq filed a writ under Article 32. In her submission, she wrote This
practice with regards to Talaq-E-Biddat (one-sided Triple-Talaq) which treats
women like asset is neither agreeable with the advanced standards of human
rights and sexual orientation equity, nor a fundamental piece of Islamic
confidence, as indicated by different noted researchers. Muslim women were
given Talaq on Skype, Face book and even instant messages.
There is no protection against such arbitrary divorce. Muslim women have limited options while the guillotine of separation dangles unendingly prepared to drop at the impulses of their spouses who appreciate undisputed power. She likewise referenced that the governing body has neglected to guarantee the nobility and uniformity of women by and large and Muslim women particularly when it concerns matters of marriage, divorce, and succession. She asserted that they abused a few basic rights under the Constitution of India (Constitution) to be specific, Articles 14 (equality before the law), 15(1) (prohibition of discrimination including on the ground of gender), 21 (right to life) and 25 (freedom of religion). Her request underscored how security against these practices has significant ramifications for guaranteeing a life of dignity.
In this case court mainly focused on the Triple Talaq and set aside the practice of Triple Talaq. Supreme Court by the majority of 3:2 held instant triple talaq (talaq-e-biddat) unconstitutional under Article 14 read with Article 13(1).
Talaq-e-Sunnat”is a revocable divorce that can be pronounced in Hasan or Ahsan forms.”Talaq-e-Ahsan” is the ‘most proper’ form of talaq in which the husband expresses divorce in single sentence – “I have divorced thee” – during the period of tuhr (when the wife is not menstruating) and then has to wait till the iddat period is over. Iddat period for a woman who has been divorced by her husband is usually three monthly periods and during this time, she cannot marry another man. If before the completion of iddat, the husband resumes co-habitation with his wife or says that “I have retained thee”, the divorce is revoked.“Talaq-e-Hasan” is the ‘proper’ form of talaq. In this form, three successive pronouncements of talaq are made by the husband in three successive tuhrs (when the woman is not menstruating).This form of talaq can be revoked any time before the third pronouncement.
“Talaq-e-Biddat” or “Talaq-ul-Bain” (Irrevocable divorce) is instant Triple Talaq and is effective as soon as the word “Talaq” has been pronounced thrice. In this form of talaq, three pronouncements can be made during a single tuhr (when the woman is not menstruating) by saying “I divorce thee” thrice at the same instant.The pronouncement could be oral or written, or, in recent times, delivered by electronic means – telephone, SMS, email or social media.
In a landmark ruling in August 2017, the Supreme Court had said that instant “Triple Talaq” or “Talaq-e-Biddat” was unconstitutional and violated the fundamental rights of women. It must be understood that the proposed law is applied to only instant “Triple Talaq” or “Talaq-e-Biddat” which is irrevocable divorce and not on “Talaq-e-Sunnat” which is a revocable divorce.