Divorce in Islam – An explanation from Islamic Jurisprudence

INTRODUCTION

ISLAM, in its long drawn history of about 1500 years, has evolved itself into one of the greatest of all religions with over 1.8 billion followers, known as ‘Muslims’. It is considered by far to be the most misunderstood and misrepresented religion, because of the sheer ignorance of its followers. ‘Nikah’ translated to ‘marriage’ is a contract underlying a permanent relationship based on mutual consent on the part of man and woman. It is one quintessence subject that is grossly misunderstood by the preachers of Islam. Marriages are considered to be sacred, apart from being religious, to the nature, and dissolution of nikah is a “sin” as per the Holy book of Quran. Islam disapproves of divorce to a great extent, and lays down proper modes and practices of dissolution, if at all necessary. ‘Triple Talaq’ is one such practice that originated in the pre-Islamic Arabia, also known as Jahillyha Period or the Time of Ignorance. This tradition was followed during the time of first Caliph Abu Bakr and for two years during the second Caliph Umar. However, the practice was abolished with the advent of Islam and Prophet Muhammad in Arabia. Prophet was of the view that when divorce is pronounced in one sitting, be it thrice or hundred times, it has to be treated as one. Nevertheless, it is still practiced in the modern times, though it blatantly disregards the basic human rights enshrined to each and every human.

DIVORCE IN ISLAM

Divorce is known as ‘Talaq’ in Islamic Law. It is not merely a word that fascinates others, but it dissolves the purest relationship between a husband and a wife. Talaq in its original sense means ‘repudiation or rejection of marriage’, but in Islam, it means a termination of the contract of marriage forthwith.

DIFFERENT FORMS OF DIVORCE IN ISLAM

At present in the Muslim Law, there are the following distinct modes through which a marriage can be dissolved and the relationship between a husband and a wife can be terminated.

• Divorce by the unilateral act of the husband

A husband can unilaterally, without the wife’s approval, give divorce according to any of the forms approved by the Muslim Law. This is known as “Talaq” (Arabic) in Islamic Law, whose literal meaning is, “taking off any tie or restraint”. The pronouncement of Talaq may be either revocable, which is an approved form of divorce, or irrevocable, which is an unapproved form. A revocable form of “Talaq” gives a “locus poenitentiae” to the man, but irrevocable form leads to undesirable consequences without giving him a chance to reconsider the question.

This type of divorce is further classified as under:

1. 1. Talak-e-ahsan – ‘Talaq-e-ahsan’ is a single pronouncement of ‘talaq’ by the husband followed by a period of abstinence, known as ‘Iddat’ which is ninety days or three menstrual cycles (in case, where the wife is menstruating). If the couple resumes cohabitation or intimacy, within the period of ‘iddat’, the pronouncement of divorce is treated as having been revoked. Therefore, ‘talaq-e-ahsan’ is revocable. However, on the third pronouncement of such a ‘talaq’, the couple cannot remarry, unless the wife first marries someone else, and only after her marriage with other person has been consummated and later dissolved (either through ‘talaq’ – divorce, or death). Amongst Muslims, ‘talaq-e-ahsan’ is considered as – ‘the most proper’ form of divorce.
   2. Talak-e-hasan – ‘Talaq-e-hasan’ is pronounced in the same manner, as ‘talaq-e-ahsan’. Herein, in place of a single pronouncement, there are three successive pronouncements in a period of three months. If after the first two pronouncements, there is resumption of cohabitation within that period, the pronouncement of divorce is treated as having been revoked. If the third ‘talaq’ is pronounced, the marriage stands dissolved, whereafter, the wife has to observe the required ‘iddat’. As against ‘talaq-e-ahsan’, which is regarded as ‘the most proper’ form of divorce, Muslims regard ‘talaq-e-hasan’ only as ‘the proper form of divorce’.
   3. Talak-e-biddat – This is effected by one definitive pronouncement of ‘talaq’ such as, “I talaq you irrevocably” or three simultaneous pronouncements, like “talaq, talaq, talaq”, uttered at the same time, simultaneously. In ‘talaq-e-biddat’, divorce is effective forthwith. The instant talaq, unlike the other two categories of ‘talaq’, is irrevocable at the very moment it is pronounced. Even amongst Muslims ‘talaq-e-biddat’, is considered irregular.

• Divorce by mutual agreement

The type of divorce is instituted by wife and is known as ‘Khula’. It comes into existence when the wife makes an offer to the husband for the termination of the matrimonial alliance, with due consideration, and the husband accepts it. Where however both the parties mutually agree to dissolve the marriage, it is known as ‘Mubaraat’. Both of these forms of divorce come into existence with the consent of both the parties, husband particularly as without his consent the divorce would be incapable of being enforced.

• Judicial divorce

The marriage can be dissolved by a petition filed by either party in the qadi court to obtain divorce, but they must have compelling grounds for obtaining divorce.

CONCEPT OF TRIPLE TALAQ

• “Talaq, Talaq, Talaq”, when pronounced by the husband, the marriage automatically ends right away, making both the parties free from each other. This method of giving divorce by pronouncing the word “Talaq” three times by the husband is known as “Triple Talaq” or “Talaq-e-biddat”.
• It is different from the practice of “talaq-ul-sunnat”, which is considered to be the ideal form of dissolution of marriage contract among Muslims.
• In the practice of talaq-e-biddat, when a man pronounces talaq thrice in a sitting, or through phone, or writes in a talaqnama or a text message, the divorce is considered immediate and irrevocable, even if the man later wishes to re-conciliate. The only way for the couple to live together is, through nikah halala – which requires the women to get remarried, consummate the second marriage, get divorce, observe a three-month iddat period and return to her husband. After the pronouncement when divorce takes place, wife becomes totally separated from the husband in terms of responsibilities and relationship.
• Triple talaq has been supported by the Hanafi school of law amongst Sunni Muslims in India for centuries. Sunni Muslims, which constitute a majority of Muslims in India, are the ones who practice triple talaq, as the Shias do not recognize it.

THE HOLY QURAN ON TALAQ

As per Muslims, Quran was revealed by God to the Prophet Muhammad over a period of 23 years. Shortly after his death, Quran was completed by his companions, who had either written it down or had memorized parts of it. Caliph Usman – the third, in the line of Caliphs recorded a standard version of Quran, which is now known as ‘Usman Codex’ and is treated as the original rendering of Quran, as other different compilations had differences of perception.

• ‘Verses’ 224 to 227 of the Section 2 of ‘sura’ II disapproves thoughtless oaths, thereby insisting on a proper solemn and purposeful oath, carefully observed. The above verses caution husbands from making an excuse in the name of God since God looks at the intention and not mere thoughtless words. It is in these circumstances, that ‘verses’ 226 and 227 postulates, that the husband and wife, in a difficult relationship, are allowed four months to see whether an adjustment is possible. It also prescribes reconciliation, but if the couple is against it, Quran ordains, that it is unfair to keep the wife tied to her husband indefinitely. It is in such a situation that Quran suggests that divorce is the only fair and equitable course. However, it is still recognized as the most hateful action, in the sight of God.
• ‘Verses’ 229 to 231 contained in ‘section’ 30 of ‘sura’ II allows divorce for the reason of mutual incompatibility, but cautions the couple to not act in haste, and repent thereafter. To prevent erratic and fitful separations and reunions, a limit of two divorces is prescribed. After the second divorce, the parties must definitely make up their mind, either to dissolve their ties permanently or to live together honorably, with mutual love. Reunion is not easy after the second divorce. ‘Verse’ 230 recognizes the permissibility of reunion after two divorces. When divorce is pronounced between the two parties for the third time, it becomes irreversible, until the woman marries another man and he divorces her (or is released otherwise from the matrimonial tie on account of his death).
• As per the ‘Verses’ 232 and 233 of ‘section’ 20 of ‘sura’ II, the termination of the contract of marriage is treated as a serious matter for family and social life. It commends every lawful advice which can bring back those who had lived together, provided there is mutual love and they can live with each other on honorable terms.
• Quran casts a duty on men to maintain their women. ‘Verses’ 35, contained in ‘section’ 6, of ‘sura’ IV, sets out the course of settlement of family disputes. It requires the appointment of two arbitrators – one representing the family of the husband, and the other representing the family of the wife, and dissolution must be mandated only after the possibility of reconciliation is explored.
• ‘Verses’ – 1, contained in ‘section’ 1 of ‘sura’ – LXV, endorses the view, that divorce is the most hateful, of all the things permitted, in the sight of God. It proscribes a husband from turning out his wife/wives from his house. Reconciliation is recommended at every stage, whenever possible. The first serious dispute between the couple is to be submitted to the family counsel, which must represent both sides. As per the ‘verse’, divorce must be pronounced only after the period of prohibitory warning. At each stage, there must be consideration and reconciliation is recommended till the last stage. ‘Verse’ 2 maintains that everything should be done fairly, safeguarding the interests of all. The parties must remember that such things have a bearing on all aspects of their life, and therefore, impress upon the parties, to fear God, and ensure that their determination is just and true.

The understanding of the above mentioned relevant ‘verses’ of Quran, reveals that nowhere it is clearly mentioned that triple talaq at a time will be considered three-talaqs and, hence is not in conformity with the unambiguous edicts of Quran and therefore, cannot be considered to be as the valid constituents of Muslim ‘personal law’.

MUSLIM PERSONAL LAWS IN INDIA

• Sharia or Islamic Laws are the religious laws forming part of the Islamic tradition. It is derived from the writings of Quran along with the unwritten customs, which governs the Islamic society. Additionally, the Shariat is also based on the Hadith, (actions and words of the Prophet Muhammad as recorded by his companions).
• ‘Personal Law’ dealing with the affairs of those who profess Muslim religion is governed by the Muslim Personal Law (Shariat) Application Act which was passed in 1937 with the aim to formulate an Islamic law code for Indian Muslims. Section 2 of the Act states that “notwithstanding any custom or usage to the contrary, in all questions regarding intestate marriage, including talaq, ila, zihar, lian, khula and mubaraat, the rule of decisions in case where the parties are Muslims shall be the Muslim Personal Law (Shariat)”. It has done away with the unholy, oppressive and discriminatory customs and usages, under which the status of Muslim woman was disgraceful, to the extent the same was contrary to the Muslim ‘personal law’ (Shariat).

RECOGNITION OF ‘TALAQ-E-BIDDAT

The practice of ‘talaq-e-biddat’ as a means of divorce has been abrogated, through statutory requirements, the world over. The Arab states that have abolished the triple talaq include Algeria, Egypt, Jordan, Kuwait, Lebanon, Libya, Morocco, Sudan, Syria, Tunisia, United Arab Emirates and Yemen, along with southeast Asian countries like Indonesia, Malaysia, Philippines. Pakistan, Bangladesh, and Sri Lanka also have enacted laws against the Muslim divorce practice. The mere fact that most of the abovementioned countries that have either abolished or brought legislations against the archaic and intolerable practice of triple talaq are the ones having Islam as their official state religion is enough to conclude that the practice of triple talaq was not at all an essential ingredient of the Muslim sect.

CONSTITUTIONALITY OF TRIPLE TALAQ

• The Muslim Personal Law (Shariat) Application Act, 1937 deals with the application of Sharia, which governs divorce in Muslims. Among the various forms of divorce, ‘talaq-e-biddat’ is considered to be the most detestable and draconian form of divorce, and is considered to be invalid and unconstitutional, as it is repugnant to the principle of natural justice and is against the fundamental rights enshrined in Part III of the Constitution.
• Article 14 of the Constitution which talks about equality before the law provides that no person is above the law, it is the law which is supreme and every person is equal in the eyes of law, irrespective of gender or religion. The husband in case of giving triple talaq has unequivocal right to divorce the wife while the wife cannot do the same. When the marriage is undertaken by the mutual consent of both the parties, then it is unfair to dissolve it unilaterally, which is violative of the Article 14. Giving of such triple talaq is manifestly arbitrary as it does not recognize equality of status of Muslim women with that of men. Moreover, it is unreasonable as no reconciliation process is initiated before the divorce.
• The wife doesn’t even have a right to resort to judicial proceedings which is also an unjust violation of the principle of natural justice. Triple Talaq distorts the fundamental rights enshrined in the Article 15 of the constitution which prohibits any form of discrimination. The obnoxious practice has given all the rights of divorce to men, leaving behind women as mere puppets at the hands of their husbands. Muslim women suffer on account of their gender.
• Also, the practice of ‘talaq-e-biddat’ and divorce of women without proper reconciliation violates the basic right to live with dignity of every Muslim woman. The personal liberty of a person cannot be taken away by a law which is arbitrary, unfair or unreasonable. There must be some semblance of reasonableness when a law is trying to restrict someone’s right to personal liberty. Hence, the practice is repugnant to Article 21 of the Constitution.

So, it can be said from the above instances that triple talaq is ‘unconstitutional’ as it violates the fundamental rights of the citizens enshrined in the Part III of the Constitution.

SUPREME COURT ON TRIPLE TALAQ

• On October 16, 2015, the Supreme Court questioned the Muslim personal law practices of marriage and divorce, and in a rare move, registered a suo moto public interest litigation (PIL) petition titled ‘In Re: Muslim Women’s Quest for Equality’ to examine whether arbitrary divorce, polygamy and nikah halala violate women’s dignity.
• A five-judge Constitution Bench was set up to decide on the issue and they came up with the understanding that, the Holy Quran has attributed sanctity and permanence to matrimony, as per the verses of Quran. However, in extremely unavoidable situations, talaq is permissible. But attempts for reconciliation, and if it succeeds then revocation, are the Quranic essential steps before talaq attains finality. In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.
• Justice Kurian, one of the judges of the Constitution bench, noted that merely because a practice has continued for long, that by itself cannot make a practice valid if it has been expressly declared to be impermissible. He further stated that the whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat activities. Hence, no constitutional protection can be granted to triple talaq as it goes against the tenets of Quran.
• Justice Rohinton F. Nariman and U.U. Lalit were of the view that, “given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. This being the case, this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India”. Therefore, the Shariat Act, in so far as it recognizes and enforces Triple Talaq is within the meaning of the expression “law in force” in Article 13(1), and must be struck down to the extent it enforces Triple Talaq.
• After due consideration, the Supreme Court in a majority judgment of 3:2 set aside ‘talaq-e-biddat’ as a “manifestly arbitrary” practice and hence, “void”, “illegal” and “unconstitutional”.

CONCLUSION

Considering the facts that triple talaq is un-Islamic, negated by highly regarded Islamic scholars, that such a practice has been invalidated in many Muslim-majority nations and that it blatantly violates provisions of Constitution of India, the Supreme Court has taken a proactive role in banning the misogynistic practice of Triple Talaq, and has set forth a very strong example in the society. The verdict is monumental and historic, and it is not only the victory of women but more than that, it is the victory of Islam. Justice has not been meted out to the Muslim women for ages but now, the Muslim women in India will be able to enjoy their fundamental rights and the dangling sword of divorce over their head forever, will now be bygone tales of the past, thereby upholding the ideal of ‘women empowerment’ in the society.

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