Under the Islamic law, divorce is classified into three categories. Talaq understood simply, is a means of divorce, at the instance of the husband. Khula, is another mode of divorce, this divorce is at the instance of the wife. The third category of divorce is mubaraat divorce by mutual consent.
Literal Meaning of Talaq
The word ‘talaq’ carries the literal significance of ‘freeing’ or ‘the undoing of knot’. ‘Talaq’ means divorce of a woman by her husband. Under the Muslim law marriage is a civil contract. Yet the rights and responsibilities consequent upon it are of such importance to the welfare of the society that a high degree of sanctity is attached to it. But in spite of the sacredness of the character of the marriagetic, Islam recognizes the necessity in exceptional circumstances of keeping the way open for its dissolution.
There has been a good deal of misconception of the institution of ‘talaq’ under the Muslim law. From the Holy Quran and the Hadis, it appears that though divorce was permitted, yet the right could be exercised only under exceptional circumstances. The Holy Prophet is reported to have said: “Never did Allah allow anything more hateful to Him than divorce. According to a report of Ibn Umar, the Prophet said: “With Allah the most detestable of all things permitted is divorce”. (See the Religion of Islam by Maulana Muhammed Ali at page 671).
Forms of Talaq
Talaq, namely, divorce at the instance of the husband, is also of three kinds,
- talaq-e-ahsan,
- talaq-e-hasan and
- talaq-e-biddat.
Talaq-e-ahsan, and talaq-e-hasan are both approved by the Quran and hadith. Talaq-e-ahsan, is considered as the most reasonable form of divorce, whereas, talaq-e-hasan is also considered as reasonable.
Talaq-e-Ahsan
Talaq-e-ahsan is a single pronouncement of talaq by the husband, followed by a period of abstinence. The period of abstinence is described as iddat. The duration of the iddat is ninety days or three menstrual cycles (in case, where the wife is menstruating) and the period of iddat is of three lunar months (in case, the wife is not 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couple resumes cohabitation or intimacy, within the period of iddat, the pronouncement of divorce is treated as having been revoked.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.
Conversely, if there is no resumption of cohabitation or intimacy, during the period of iddat, then the divorce becomes final and irrevocable, after the expiry of the iddat period. It is considered irrevocable because, the couple is forbidden to resume marital relationship thereafter, unless they contract a fresh Nikah (-marriage), with a fresh mahr.
For instance, H pronounces a single revocable talaq against his wife and then says I have retained thee or cohabits with her, the divorce is revoked under Hanafi as well as Ithna Ashari law. After the expiration of the iddat the divorce becomes irrevocable. A Muslim wife after divorce is entitled to maintenance during the iddat, and so also her child in certain circumstances.
Mahr
Mahr is a mandatory payment, in the form of money or possessions, paid or promised to be paid, by the groom or by the groom’s father to the bride, at the time of marriage, which legally becomes her property.
Halala
However, on the third pronouncement of such a talaq in talaq-e-ahsan, the couple cannot remarry, unless the wife first marries someone else, and only after her marriage with other person has been dissolved (either through talaq – divorce, or death), can the couple remarry. Amongst Muslims, talaq-e-ahsan is regarded as the most proper form of divorce.
Talaq-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. After the first pronouncement of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. The same procedure is mandated to be followed, after the expiry of the first month (during which marital ties have not been resumed).
Talaq is pronounced again. After the second pronouncement of talaq, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is significant to note, that the first and the second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, talaq pronounced by the husband becomes ineffective, as if no talaq had ever been expressed.
If the third talaq is pronounced, it becomes irrevocable. Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third Tuhr (period of purity), as soon as the third declaration is made, the talaq becomes irrevocable, and the marriage stands dissolved, whereafter, the wife has to observe the required iddat (the period after divorce, during which a woman cannot remarry. Its purpose is to ensure, that the male parent of any offspring is clearly identified).
And after the third iddat, the husband and wife cannot remarry, unless the wife first marries someone else, and only after her marriage with another person has been dissolved (either through divorce or death), can the couple remarry.
The husband (H) pronounces talaq on his wife (W) for the first time during a period when W is free from her menstrual courses. The husband and wife had not come together during this period of purity. This is the first talaq. H resumes cohabitation or revokes this first talaq in this period of purity. Thereafter in the following period of purity, at a time when no intercourse has taken place, H pronounces the second talaq. This talaq is again revoked by express words or by conduct and the third period of purity is entered into. In this period, while no intercourse having taken place, H for the third time pronounces the formula of divorce. This third pronouncement operates in law as a final and irrevocable dissolution of the marital tie. The marriage is dissolved; sexual intercourse becomes unlawful; iddat becomes incumbent; remarriage between the parties becomes impossible unless W lawfully marries another husband, and that other husband lawfully divorces her after the marriage has been actually consummated.
Difference between Talaq-e-hasan and Talaq-e-ahsan
The distinction between talaq-e-ashan and talaq-e-hasan is, that in the former there is a single pronouncement of talaq followed by abstinence during the period of iddat, whereas, in the latter there are three pronouncements of talaq, interspersed with abstinence. 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.
Thus it is clear that in these two forms there is a chance for the parties to be reconciled by the intervention of friends or otherwise. They are, therefore, the approved forms and are recognized both by Sunni and Shia laws. The Ithna Ashari and the Fatimi schools, however, do not recognize the remaining two forms and thus preserve the ancient conventions of the times of the Law-giver.
The first, or ahsan, form is most approved because the husband behaves in a gentlemanly manner and does not treat the wife as a chattel. The second is a form in which the Prophet tried to put an end to a barbarous pre-Islamic practice. This practice was to divorce a wife and take her back several times in order to ill-treat her. The Prophet, by the rule of the irrevocability of the third pronouncement, indicated clearly that such a practice could not be continued indefinitely.
Thus if a husband really wished to take the wife back he should do so; if not, the third pronouncement after two reconciliations would operate as a final bar. These rules of law follow the spirit of the Quranic injunction: when they have reached their term take them back in kindness or part from them in kindness.
Talaq-e-biddat
The third kind of talaq is talaq-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.
There is no mention of talaq-e-biddat in the Quran. It was however acknowledged, that the practice of talaq-e-biddat can be traced to the second century, after the advent of Islam. Talaq-e-biddat is recognized only by a few Sunni schools. Most prominently, by the Hanafi sect of Sunni Muslims. And, even those schools that recognized talaq-e-biddat described it, as a sinful form of divorce.
It is acknowledged, that this form of divorce, has been described as bad in theology, but good in law.
Muslim Scholars on Talaq-e-Biddat
Fyzee denounces talaq as “absurd and unjust”. Abdur Rahim says: “I may remark that the interpretation of the law of divorce by the jurists, specially of the Hanafi School, is one flagrant instance where because of literal adherence to mere words and a certain tendency towards subtleties they have reached a result in direct antagonism to the admitted policy of the law on the subject.”
Mohammad Ali has observed: – “Divorce is thus discouraged: ‘If you hate them (i.e. your wives) it may be that you dislike a thing while Allah has placed abundant good in it.” Remedies are also suggested to avoid divorce so long as possible: “And if you fear a breach between the two (i.e. the husband and the wife), then appoint a judge from his people and a judge from her people; if they both desire agreement, Allah will effect harmony between them. It was due to such teachings of the Holy Quran that the Holy Prophet declared divorce to be the most hateful of all things permitted.
The mentality of the Muslim is to face the difficulties of the married life along with its comforts and to avoid disturbing the disruption of the family relations as long as possible, turning to divorce only as a last resort.”
The learned author has further observed: “The principle of divorce spoken of in the Holy Quran and which in fact includes to a greater or less extent all causes, is the decision no longer to live together as husband and wife. In fact, marriage itself is nothing but an agreement to live together as husband and wife and when either of the parties finds him or herself unable to agree to such a life, divorce must follow. It is not, of course, meant that every disagreement between them would lead to divorce; it is only the disagreement to live any more as husband and wife… He then refers to the condition laid down in Sura IV verse 35.
The learned author proceeds: “The ‘shiqaq’ or breach of the marriage agreement may also arise from the conduct of either party; for instance, if either of them misconducts himself or herself, or either of them is consistently cruel to the other, or, as may sometimes happen there is incompatibility of temperament to such an extent that they cannot live together in marital agreement. The ‘shiqaq’ in these cases is more express, but still it will depend upon the parties whether they can pull on or not.
Divorce must always follow when one of the parties finds it impossible to continue the marriage agreement and is compelled to break it off. At first sight it may look like giving too much latitude to the parties to allow them to end the marriage contract thus, even if there is no reason except incompatibility of temperament, but this much is certain that if there is such disagreement that the husband and the wife cannot pull together, it is better for themselves, for their offspring and for society in general that they should be separated than that they should be compelled to live together.
No home is worth the name wherein instead of peace there is wrangling; and marriage is meaningless if there is no spark of love left between the husband and the wife. It is an error to suppose that such latitude tends to destroy the stability of marriage, because marriage is entered into as a permanent and sacred relation based on love between a man and a woman, and divorce is only a remedy when marriage fails to fulfil its object.”
With regard to the husband’s right of pronouncing divorce the learned author has found; “Though the Holy Quran speaks of the divorce being pronounced by the husband, yet a limitation is placed upon the exercise of this right.”
He then refers to the procedure laid down in Sura IV Verse 35 quoted above, and says: “It will be seen that in all disputes between the husband and the wife, which it is feared will lead to a breach, two judges are to be appointed from the respective people of the two parties. These judges are required first to try to reconcile the parties to each other, failing which divorce is to be effected.
Therefore, though it is the husband who pronounces the divorce, he is as much bound by the decision of the judges, as is the wife. This shows that the husband cannot repudiate the marriage at will. The case must first be referred to two judges and their decision is binding……The Holy Prophet is reported to have interfered and disallowed a divorce pronounced by a husband, restoring the marital relations (Bu. 68: 2). It was no doubt matter of procedure, but it shows that the authority constituted by law has the right to interfere in matters of divorce.”
The learned author has further observed: “Divorce may be given orally, or in writing, but it must take place in the presence of witnesses.
How Talaq-e-biddat started?
As a historical fact, talaq-e-biddat is known to have crept into Muslim tradition more than 1400 years ago, at the instance of Umayyad monarchs. It can certainly be traced to the period of Caliph Umar a senior companion of Prophet Muhammad. Caliph Umar succeeded Abu Bakr (632-634) as the second Caliph on 23.8.634.
Talaq-e-biddat was prevalent in muslim countries but to regulate such talaq form, these countries prohibited the use of talaq on the whim of man.
The Muslim population in India is over 13% (-about sixteen crores) out of which 4-5 crores are Shias, and the remaining are Sunnis (besides, about 10 lakhs Ahmadias) mostly belonging to the Hanafi school. And therefore, it would not be incorrect to conclude, that an overwhelming majority of Muslims in India, have had recourse to the severance of their matrimonial ties, by way of talaq-e-biddat as a matter of their religious belief as a matter of their faith. However, in the landmark case of Shayra Bano v. Union of India, (2017), the supreme court declared talaq-e-biddat unconstitutional.
Reference
Shayra Bano v. Union of India, (2017)