Skip to main content

Learn What Is Triple Talaq With This Muslim Divorce Law Guide

 Different types of Divorce in Islam

There are two categories of divorce under the Muslim law:


Extra judicial divorce, and


Judicial divorce


Connect with an expert lawyer for your legal issue

 


The category of extra judicial divorce can be further subdivided into three types, namely,


By husband- talaaq, ila, and zihar.


By wife- talaaq-i-tafweez, lian.


By mutual agreement- khula and mubarat.


The Judicial divorce category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.

 


What is Triple Talaq?

‘Triple Talaq' is the term used to signify the methodology of divorce in Islam. Usually the term is used to signify that after saying divorce three times, the couple cannot be together. 


In Sharia law, there are broadly two kinds of talaq : 


Talaq al ahsan, which is done by saying a single word 'talaq' 3 times, with an interval of one month every time. The talaq becomes complete when the third time the word 'talaq' is used.


Triple talaq, or talaq ul bidaat, which is done by saying 'talaq' 3 times one after another, with no interval of time. So this results in immediate divorce. As a matter of fact, this is the most widely practiced method.

 


Talaq ul bidaat or triple talaq rules in India

Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. In Islam, divorce is considered as an exception to the status of marriage.


Under the “Shariah” law in India, there are three forms of Express divorce- Ahsaan Talaq, Hasan Talaq (both are forms of Talaq-ul-sunnat) and Triple Talaq (Talaq-ul-bidaat).


A single pronouncement of Talaq (‘I divorce you’) is made by the husband during wife’s menstruation free time (called Tuhr). In another form of express divorce - Hasan Talaq, the Husband is required to make three pronouncements during consecutive menstruation free period of his wife. Divorce becomes effective after the third declaration if it has not been revoked earlier. And the most popular form of Talaq is instant ‘Triple Talaq’ or (Talaq-ul-bidaat). it is also the most controversial.


Consult: Top Divorce Lawyers in India

 


Talaq-ul-Bidaat (Irrevocable)

This Talaq is also known as Talaq-ul-Bain. The most distinctive 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. Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Sharia. It commands neither the sanction of Holy Quran nor the approval of the Holy Prophet.

 


What is the validity of Talaq -ul- Bidaat?

There have been Numerous court judgements which have established that Triple Talaq is invalid and have set some definite requirements for its validity.


In Masroor Ahmed v. State (NCT of Delhi) [2008 (103) DRJ 137 (Del.), Triple Talaq was held to be one revocable Talaq meaning that the divorce can be revoked at any time before the completion of a waiting period of 90 days (called Iddat) after which the marriage is dissolved. Talaq must be for a reasonable cause. (Talaq given in anger is not valid).


In Riaz Fatima v Mohd. Sharif [(2007) DMC 26], evidence must be given by the husband of the reasons that has compelled him to seek divorce. A proof that talaq was proclaimed thrice in the presence of witnesses or in the letter must be provided and an attempt of reconciliation has been made. There has to be proof of payment of meher (dowry) amount and observance of iddat (the period of waiting by a woman after divorce or the spouse’s death before she can marry again).

 


Why is talaq - ul - bidaat followed in India?

While many Muslim countries have amended their legal strictures in terms of divorce procedure, India, as far as this practice is concerned, continues to be stuck in the medieval age by continuing to uphold provisions of the archaic Muslim Personal Law (Shariat) Application Act 1937.


Although there has been a wave of debates, petitions and uproar over the constitutional validity of this mode of Talaaq, the archaic law continues to persist in India due to country's rules protecting Muslim, Christian and Hindu communities following religious law.


India being a Hindu majority nation has to assure the Muslim community that it is not doing injustice with them. And in order to appease the Muslim community, Indian political leadership refrains from taking a risk of involving their personal laws. The frequent communal riots are an example of the sensitivity of the personal laws in India. Furthermore, any attempt to trifle with these laws is met with ferocious opposition from religious boards like All India Muslim Personal Board and other Authorities, who support that there is no scope of change in the triple talaq system. Their contention is that the abolition of triple talaq would be contrary to the teachings of the Quran; second, that men are more capable of making decisions; third, that polygamy, although not desirable, is Islamic and that it actually helps rather than hurts women; and fourth, that the Supreme Court does not have the right to intervene in religious law.

 


What is Iddat/Iddah period?

After first divorce, there is a waiting period. This waiting period is called iddah and depends on the state of the woman (usually three menstrual cycles). The couple can reunite in this iddah without having to have a new marriage contract.


After this period has ended and the couple wants to reunite then there will be a new marriage contract and new mahr’ (dowry given by the groom to the bride.) If the husband does not want his wife back then after this iddah, the woman can marry another person.


Connect with an expert lawyer for your legal issue

 


What is Halala Marriage (Nikah Halala)?

Majority of Muslim population work as per the Sharia law. Sharia is derived from the religious precepts of Islam, particularly the Quran and the Hadith.


In Sharia law, a couple which undergoes a divorce cannot remarry unless the woman marries another man, consummates the marriage and then her second husband dies or divorces her. In this case, the marriage (Nikah) of the women with her second husband is called Nikah Halala.

 


How can women divorce in Islam?

Muslim women in India can get a divorce from their husband through two customary ways - 


One is through their personal Sharia law through Talaq e tafweez and Lian.


The other through the statutory provision under Dissolution of Muslim Marriage Act, 1938.


However, divorce through personal Sharia law has to be under the scrutiny of Quazi, mostly guided under the regulations of All India Muslims Personal Law Board (AIMPLB).


Consult: Top Divorce Lawyers in India

 


Talaq e tafweez

A husband may delegate his power to give Talaq to any third party or even to his wife. He may delegate the power absolutely or conditionally, temporarily or permanently. A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. This delegation is called tafweez. An agreement made either before or after the marriage providing that the wife is at liberty to divorce her husband under certain specified conditions is valid, provided that such power is not absolute and unconditional and that the conditions are reasonable and are not opposed to public policy. Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis.

 


Lian

If the husband points false charges of unchastity or adultery against his wife, then this amounts to character assassination and the wife will have the right to ask for a divorce on these grounds. Such divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behavior and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behavior of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian.


Connect with an expert lawyer for your legal issue

 


Dissolution of Muslim Marriage Act, 1938

Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April 1936. It, however, became law on 17th March 1939 and thus stood the Dissolution of Muslim Marriages Act 1939.


Section 2 of the Act runs thereunder:

A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds:-


the whereabouts of the husband have not been known for a period of four years


the husband has neglected or has failed to provide for her maintenance for a period of two years


the husband has been sentenced to imprisonment for a period of seven years or upwards


the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years


the husband treats her with cruelty

Comments

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree