Talaq
Introduction
The Arabic word for divorce is talaq which means "freeing or
undoing the knot" (Imam Raghib). In the terminology of the jurists. Talaq
signifies the dissolution of marriage, or the annulment of its legality by the
pronouncement of certain words.
Types
of Talaq
There are three (3) types of Talaq which is stated
below:-
1. Most Proper (Ahsan)
2. Proper (Hasan)
3. Irregular (Biddat)/Tripal Talaq
Most Proper (Ahsan):- Talaq Ahsan or the most laudable divorce is where the husband
repudiates his wife by making one pronouncement within the term of Tahr (purity
when the woman is not passing through the period of menses) during which he has
not had sexual intercourse with her, and she is left to observe her 'Idda.
Proper (Hasan):-
Talaq Hasan or laudable divorce is where a
husband repudiates an enjoyed wife by three sentences of divorce, in three
Tuhrs.
Irregular (Biddat):-
Talaq Bid'a or irregular divorce is where a
husband repudiates his wife by three divorces at once. According to the
majority of the jurists, the Talaq holds good, but it is against the spirit of
the Shari'ah, and, therefore, the man who follows this course in divorce is an
offender in the eye of Islamic Law.
It consists of three pronouncements in a single tuhr either in once
sentence e.g. “I divorce thee thrice”, or in separate sentences e.g. “I divorce
thee, I divorce thee, I divorce thee,”
Custody
of Children
Clause 6 in Chapter 3 of the Bill states that, “a married Muslim woman
shall be entitled to custody of her minor children in the event of
pronouncement of talaq by her husband, in such manner as may be determined by
the Magistrate”.
Punishment
- The Muslim Women (Protection of Rights on Marriage) Act, 2019
declares the instant divorce granted by pronouncement of talaq three times
as void and illegal. It provides for imprisonment for a term up to 3 years
and fine to the husband who practiced instant Triple Talaq.
- Muslim woman, upon whom Talaq was pronounced also granted custody
of children and subsistence allowance to be paid by the husband.
- Muslim
women now have a legal protection against the whimsical and irrational pronouncement
of Triple Talaq.
- The
Act also works as deterrence for husbands who intend to divorce their
wives in this manner.
Case Law
The Constitution
Bench in its landmark judgment of Sayara Bano v. Union of India
pronounced on August 22, 2017 set aside the practice of “Talaq-e-Biddat” or
“Tripal Talaq” with the majority of 3:2. It was held that Tripal Talaq violates
the fundamental right of Muslim women as it irrevocably ends marriage and is
against the basic tenets of Quran.
In Saiyad Rashid Ahmad v.
Anisa Khatun, the Privy
Council recognized triple divorce pronounced at one time validly effective. In
this case, husband, triple talaq, in absence of her but in presence of
witnesses, after 4 days, executed talaqnama, later started living together
without any proof of compliance of the doctrine of Halala, five children born
and husband treated them as legitimate, privy council agreed with the
observation of the lower court that triple talaq broke the marriage then and
there.
In Yousuf v. Swaramma, Justice Krishna Iyer pointed out: The
view that the Muslim husband enjoys an arbitrary unilateral power to inflict
instant divorce does not accord with Islamic injunctions. It is a popular
fallacy that a Muslim male enjoys under the Quranic law unbridled authority to
liquidate the marriage. The whole Quran expressly forbids a man to seek
pretexts for divorcing his wife, so long as she remains faithful and obedient
to him.
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