The sources of Muslim Personal Law are Quran, Hadith, Ijma and Qiyas respectively. When any question arises regarding the personal laws of muslims, Quran is referred first.
On the subject Talaq also, the most credible source is Quran. Talaq-e-ahsan and Talaq-e-hasan have references in Quran. However, the third form of Talaq that is Talaq-e-biddat does not approve from Quran and hadith as it is popularized in second century during the reign of Ommayads Monarchs.
In India, Talaq-e-biddat declared unconstitutional by Supreme court in Shayra Bano v. Union of India, (2017). So, the reading of Talaq-e-biddat is just for academic purpose now. However, other two forms of talaq is still inforce in India.
Therefore, to understand the jurisprudence of Talaq, it is relevant to know the source material of this tradition.
The Holy Quran as a Source of Law
Quran was revealed by God to the Prophet Muhammad over a period of about 23 years, beginning from 22.12.609, when Muhammad was 40 years old. The revelation continued up to the year 632 the year of his death.
Shortly after Muhammad’s death, the Quran was completed by his companions, who had either written it down, or had memorized parts of it. These compilations had differences of perception.
Therefore, Caliph Usman – the third, in the line of caliphs recorded a standard version of the Quran, now known as Usman’s codex. This codex is generally treated, as the original rendering of the Quran.
The Quran is divided into suras (chapters). Each Sura contains verses, which are arranged in sections.
Verses (Aayat) of Talaq in Quran
Reference may first be made to verses 222 and 223 contained in section 28 of Sura II.
222. They ask thee Concerning women’s courses. Say: They are A hurt and a pollution: So keep away from women in their courses, and do not Approach them until They are clean. But when they have Purified themselves, Ye may approach them in any manner, time, or place Ordained for you by God. For God loves those Who turn to Him Constantly and he loves those Who keep themselves pure and clean.
The Quran mandates respectability at the hands of men towards women. Verse 222 has been interpreted to mean, that matters of physical cleanliness and purity should be looked at, not only from a man’s point of view, but also from the woman’s point of view.
The verse mandates, that if there is danger of hurt to the woman, she should have every consideration. The Quran records, that the action, of men towards women are often worse. It mandates, that the same should be better with reference to the woman’s health, both mental and spiritual.
Reference is also necessary to verses 224 to 228 contained in section 28 of sura II of the Quran. The same are extracted below:
224. And make not Gods (name) an excuse in your oaths against Doing good, or acting rightly, or making peace Between persons; For God is one Who heareth and knoweth All things.
225. God will not Call you to account for thoughtlessness in your oaths, but for the intention in your hearts; And He is Oft-forgiving Most Forbearing;
For those who take an oath for abstention from their wives, a waiting for four months Is ordained; If then they return, God is Oft-forgiving, Most Merciful.
227. But if their intention Is firm for divorce, God heareth and knoweth all things.
228. Divorced women Shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what God Hath created in their wombs, if they have faith in God and the Last Day. And their husbands Have the better right to take them back in that period, if They wish for reconciliation. And women shall have rights Similar to the rights Against them, according to what is equitable;
Verse 224, has a reference to many special kinds of oaths practised amongst Arabs. Some of the oaths even related to matters concerning sex. These oaths caused misunderstanding, alienation, division or separation between husbands and wives. Verses 224 to 227 are pointed references to such oaths.
Through verse 224, the Quran ordains in general terms, that no one should make an oath in the name of God, as an excuse for not doing the right thing, or for refraining from doing something which will bring people together. The text relied upon suggests, that verses 225 to 227 should be read together with verse 224.
Verse 224 is general and leads up to the next three verses. These verses are in the context of existing customs, which were very unfair to married women. Illustratively, it was sought to be explained, that in a fit of anger or caprice, sometimes a husband would take an oath in the name of God, not to approach his wife. This act of the husband, it was sought to be explained, deprives the wife of her conjugal rights, and yet, keeps her tied to the husband indefinitely, inasmuch as, she has no right to remarry. Even if this act of the husband, was protested by the wife, the explanation provided is, that the husband was bound by the oath in the name of God.
Through the above verses, the Quran disapproves thoughtless oaths, and at the same time, insists on a proper solemn and conscious/purposeful oath, being scrupulously observed. The above verses caution husbands to understand, that an oath in the name of God was not a valid excuse since God looks at intention, and not mere thoughtless words.
It is in these circumstances, that verses 226 and 227 postulate, that the husband and wife in a difficult relationship, are allowed a period of four months, to determine whether an adjustment is possible. Even though reconciliation is recommended, but if the couple is against reconciliation, the Quran ordains, that it is unfair to keep the wife tied to her husband indefinitely.
The Quran accordingly suggests, that in such a situation, divorce is the only fair and equitable course. All the same it is recognized, that divorce is the most hateful action, in the sight of the God.
Verses 229 to 231 contained in section 29 of sura II, and verses 232 and 233 included in section 30 of sura II, as also verse 237 contained in section 31 in sura II, are also relevant on the issue of divorce.
229. A divorce is only Permissible twice: after that, the parties should either hold Together on equitable terms, Or separate with kindness. It is not lawful for you, (Men), to take back Any of your gifts (from your wives), Except when both parties Fear that they would be Unable to keep the limits Ordained by God.
If ye (judges) do indeed Fear that they would be Unable to keep the limits Ordained by God, There is no blame on either Of them if she give Something for her freedom. These are the limits Ordained by God; So do not transgress them If any do transgress The limits ordained by God, Such persons wrong (Themselves as well as others)
230.So if a husband Divorces his wife (irrevocably), He cannot, after that, Re-marry her until After she has married Another husband and He has divorced her. In that case there is No blame on either of them If they re-unite, provided They feel that they Can keep the limits Ordained by God. Such are the limits Ordained by God, Which He makes plain To those who understand.
231.When ye divorce Women, and they fulfil The term of their (Iddat) Either taken them back On equitable terms Or set them free On equitable terms; But do not take them back To injure them, (or) to take Undue advantage; If any one does that, He wrongs his own soul. Do not treat Gods Signs As a jest, But solemnly rehearse Gods favours on you, And the fact that He Send down to you The Book And Wisdom, For your instruction. And fear God, And know that God Is well acquainted With all things.
A perusal of the aforesaid verses reveals, that divorce for the reason of mutual incompatibility is allowed. There is however a recorded word of caution that the parties could act in haste and then repent, and thereafter again reunite, and yet again, separate. To prevent erratic and fitful repeated separations and reunions, a limit of two divorces is prescribed.
In other words, reconciliation after two divorces is allowed. After the second divorce, the parties must definitely make up their mind, either to dissolve their ties permanently, or to live together honourably, in mutual love and forbearance to hold together on equitable terms. However, if separation is inevitable even on reunion after the second divorce, easy reunion is not permitted. The husband and wife are forbidden from casting aspersions on one another. They are mandated to recognize, what is right and honourable, on a collective consideration of all circumstances.
After the divorce, a husband cannot seek the return of gifts or properties, he may have given to his wife. Such retention by the wife is permitted, only in recognition that the wife is economically weaker.
An exception has been carved out in the second part of verse 229, that in situations where the freedom of the wife could suffer on account of the husband refusing to dissolve the marriage, and perhaps, also treat her with cruelty. It is permissible for the wife, in such a situation, to extend some material consideration to the husband. Separation of this kind, at the instance of the wife, is called Khula.
Verse 230 is in continuation of the first part of verse 229. The instant verse recognizes the permissibility of reunion after two divorces. When divorce is pronounced for the third time, between the same parties, it becomes irreversible, until the woman marries some other man and he divorces her (or is otherwise released from the matrimonial tie, on account of his death). The Quranic expectation in verse 230, requires the husband to restrain himself, from dissolving the matrimonial tie, on a sudden gust of temper or anger.
Verse 231 provides, that a man who takes back his wife after two divorces, must not put pressure on her, to prejudice her rights in any way. Remarriage must only be on equitable terms, whereupon, the husband and wife are expected to lead a clean and honourable life, respecting each other’s personalities. The Quranic message is, that the husband should either take back the wife on equitable terms, or should set her free with kindness.
The verses referred to above need to be understood along with verses 232 and 233, contained in section 20 of sura II, of the Quran. The above two verses are extracted below:
232. When ye divorce Women, and they fulfil The term of their (Iddat), Do not prevent them From marrying Their (former) husbands, If they mutually agree On equitable terms. This instruction Is for all amongst you, Who believe in God And the Last Day. That is (the course Making for) more virtue And purity amongst you, And God knows, And ye know not.
233. The mothers shall give suck To their offspring For two whole years, If the father desires To complete the term. But he shall bear the cost Of their food and clothing On equitable terms. No soul shall have A burden laid on it Greater than it can bear. No mother shall be Treated unfairly On account of his child, An heir shall be chargeable In the same way. If they both decide On weaning, By mutual consent, And after due consultation, There is no blame on them. If ye decide On a foster-mother For your offspring, There is no blame on you, Provided ye pay (the mother) What ye offered, On equitable terms. But fear God and know That God sees well What ye do.
A perusal of the above verses reveals, that the termination of the contract of marriage, is treated as a serious matter for family and social life. And as such, every lawful advice, which can bring back those who had lived together earlier, provided there is mutual love and they can live with each other on honourable terms, is commended.
After following the above parameters, the Quran ordains, that it is not right for outsiders to prevent the reunion of the husband and wife. Verse 233 is in the midst of the regulations on divorce. It applies primarily to cases of divorce, where some definite rule is necessary, as the father and mother would not, on account of divorce, probably be on good terms, and the interest of children must be safeguarded. Since the language of verse 233 is general, the edict contained therein is interpreted, as applying equally to the father and mother, inasmuch as, each must fulfil his or her part, in the fostering of children.
The last relevant verse in sura II of the Quran, is contained in section 31, namely, verse 237. The same is reproduced below:
237. And if ye divorce them Before consummation, But after the fixation Of a dower for them, Then the half of the dower (Is due to them), unless They remit it Or (the man’s half) is remitted By him in whose hands IIs the marriage tie; And the remission (Of the man’s half) Is the nearest to righteousness. And do not forget Liberality between yourselves. For God sees well All that ye do.
In case of divorce before consummation of marriage, it is recognized, that only half the dower fixed needed to be refunded to the wife. It is however open to the wife, to remit the half due to her. And likewise, it is open to the husband to remit the half which he is entitled to deduct (and thus pay the whole dower amount).
Shayra Bano v. Union of India, (2017)