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Published : May 18, 2017 | Author : advmohamedahamed
Category : family law | Total Views : 1557 | Rating :

  
advmohamedahamed
B.Com, LLB(Gold Medalist), PGDPM&LW - Presently working as Manager (Legal) in a private limited company
 

Talaq In Islam

The most heated topic at present in India is the issue of triple Talaq in Islam, wherein the Hon’ble Supreme Court of India is rendering its precious and valuable time to curb out this so called social evil of Triple Talaq in order to protect the rights of Indian Muslim Women from this social evil. Here it is necessary to point out here that the main source of Islamic Law is the Holy Book of Quran and it is a strong belief of every Muslim that it contains nothing which can be termed as a social evil as it is a book not written by a human being but a revelation from God (Allah) for the benefit of entire mankind. Muslims believe that the Quran was verbally revealed by God to Muhammad (S.A.W) through the angel Gabriel. Therefore, it becomes necessary to bring out what the holy book Quran says about Talaq.

TALAQ (DIVORCE):-
Talaq/divorce is considered to be a sin which is unforgiveable in the eyes and based on Quran it is very much clear that Allah discourages divorce and encourages the continuation of marriage. However, if it becomes impossible to resolve disputes between the husband and wife then the Holy Quran itself provides for the procedure to be followed for the dissolution of marriage in an amicable manner that too with a possibility of revocation of the same.

There are two major forms of Talaq:-
Talaq-ul-Sunnat;-
This form of Talaq is based on the Prophet’s tradition (Sunna) and as such is considered as most approved form of Talaq. Talaq was in-fact considered as an evil and in case it became/becomes impossible to avoid this evil then the best method is Talaq-ul-sunnat, wherein there is a possibility of revoking the effects of this evil. It is also called as revocable Talaq for the reason that Talaq does not become final at once and there always remain a possibility of compromise between the husband and wife. Only this kind of Talaq was in practice during the life of the Prophet. This mode of Talaq is recognized both by Sunnis as well as by the Shia’s.

ð Talaq-ul-Sunnat may be pronounced either in Ahsan or in the Hasan form:-

1. Talaq-Ahsan:-

This is the most proper form of repudiation of marriage. The reason is twofold: First, there is possibility of revoking the pronouncement before expiry of the Iddat period. Secondly, the evil words of Talaq are to be uttered only once. Being an evil, it is preferred that these words are not repeated. In the Ahsan Talaq there is a single declaration during the period of purity followed by no revocation by husband for three successive period of purity. In this form, the following formalities are required:

(a) The husband has to make a single pronouncement of Talaq during the Tuhr of the wife. Tuhr is the period of wife’s parity i.e. a period between two menstruations. As such, the period of Tuhr is the period during which cohabitation is possible. But if a woman is not subjected to menstruation, either because of old age or due to pregnancy, a Talaq against her may be pronounced any time.

(b) After this single pronouncement, the wife is to observe an Iddat of three monthly courses. If she is pregnant at the time of pronouncement the Iddat is, till the delivery of the child. During the period of Iddat there should be no revocation of Talaq by the husband.

Revocation may be express or implied. Cohabitation with the wife is an implied revocation of Talaq. If the cohabitation takes place even once during this period, the Talaq is revoked and it is presumed that the husband has reconciled with the wife.

When the period of Iddat expires and the husband does not revoke the Talaq either expressly or through consummation, the Talaq becomes Irrevocable and final.

It may be noted that the characteristic feature of the Ahsan form of Talaq is a single pronouncement followed by no revocation during the period of three month’s Iddat. Therefore, where a husband makes any declaration in anger, but realising his mistake afterwards, wants to cancel it, there is sufficient time for him to do so. Single pronouncement of the civil words of Talaq and sufficient opportunity to the spouses for reconciliation, are the two reasons for calling this form as the ‘most proper’ form of Talaq.

(ii) Talaq Hasan (Proper):

This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there is a provision for revocation. But it is not the best mode because evil words of Talaq are to be pronounced three times in the successive Tuhrs. The formalities required under this form are as under:

(a) The husband has to make a single declaration of Talaq in a period of ‘Tuhr.

(b) In the next Tuhr, there is another single pronouncement for the second time.

It is significant to note that the first and second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, the words of Talaq become ineffective as if no Talaq was made at all.

(c) But, if no revocation is made after the first or second declaration then lastly the husband is to make the third pronouncement in the third period of purity (Tuhr). As soon as this third declaration is made, the Talaq becomes irrevocable and the marriage dissolves and the wife has to observe the required Iddat.

It may be noted that the important feature of Talaq Hasan is its revocability before the third pronouncement and its irrevocability after the third. In order to make an effective Talaq, the words must be uttered three times in three consecutive period of purity.

Talaq-ul-Bidaat (Irrevocable):

This Talaq is also known as Talaq-ul-Bain. It is a disapproved mode of divorce. A peculiar 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. The Prophet never approved a Talaq in which there was no opportunity for reconciliation.

Therefore, the irrevocable Talaq was not in practice during his life. The Talaq-ul-Bid’at has its origin in the second century of the Islamic-era. According to Ameer Ali, this mode of Talaq was introduced by the Omayad Kings because they found the checks in the Prophet’s formula of Talaq inconvenient to them.18 Since then this mode of Talaq has been in practice among the Sunni Muslims.

Shia Law:

Under the Shia Law, an irrevocable Talaq is not recognised.

We have already seen that in a Bidat form there is no opportunity for the revocation of Talaq. A Bid’at Talaq becomes final as soon as the words have been uttered and the marriage is completely dissolved. A Sunni husband, who wants to divorce his wife irrevocably, may do so in any of the following manners:

(a) The husband may make three pronouncements in a period of purity (Tuhr) saying: “I divorce thee, I divorce thee, and I divorce thee”. He may declare his triple Talaq even in one sentence saying: “I divorce thee thrice”, or “I pronounce my first, second and third Talaq.”

(b) The husband may make only one declaration in a period of purity expressing his intention to divorce the wife irrevocably saying: “I divorce thee irrevocably” or “I divorce thee in Bain”.

Appoint an arbitrator
[Quran 4:35] If a couple fears separation, you shall appoint an arbitrator from his family and an arbitrator from her family; if they decide to reconcile, God will help them get together. God is Omniscient, Cognizant.

Wait 4 months cooling off before divorce

[Quran 2:226-227] Those who intend to divorce their wives shall wait four months (cooling off); if they change their minds and reconcile, then God is Forgiver, Merciful. If they go through with the divorce, then God is Hearer, Knower.

If the estranged couple chooses separation they must go through with it equitably. There must be two equitable witnesses witness the divorce before God

[Quran 65:2] Once the interim is fulfilled, you may reconcile with them equitably, or go through with the separation equitably. You shall have two equitable witnesses witness the divorce before God. This is to enlighten those who believe in God and the Last Day. Anyone who reverences God, He will create an exit for him.

Divorced women to observe an interim period
[Quran 2:228] The divorced women shall wait three menstruations (before marrying another man). It is not lawful for them to conceal what God creates in their wombs, if they believe in God and the Last Day. (In case of pregnancy,) the husband's wishes shall supersede the wife's wishes, if he wants to remarry her. The women have rights, as well as obligations, equitably. Thus, the man's wishes prevail (in case of pregnancy). God is Almighty, Most Wise.

[Quran 65:4-5] As for the women who have reached menopause, if you have any doubts, their interim shall be three months. As for those who do not menstruate, and discover that they are pregnant, their interim ends upon giving birth. Anyone who reverences God, He makes everything easy for him. This is God's command that He sends down to you. Anyone who reverences God, He remits his sins, and rewards him generously.

Exception for observing interim period:

[Quran 33:49] O you who believe, if you married believing women, then divorced them before having intercourse with them, they do not owe you any waiting interim (before marrying another man). You shall compensate them equitably, and let them go amicably.

After the fulfilment of the interim the divorced women is free to do whatever she wants.
Although the following verse is in context of widows, it appears to be applicable to a divorcees too.

You Shall Observe the Pre-Marriage Interims

[Quran 2:234] Those who die and leave wives, their widows shall wait four months and ten days (before they remarry). Once they fulfill their interim, you commit no error by letting them do whatever righteous matters they wish to do. God is fully Cognizant of everything you do.

[Quran 2:235] You commit no sin by announcing your engagement to the women, or keeping it secret. God knows that you will think about them. Do not meet them secretly, unless you have something righteous to discuss. Do not consummate the marriage until their interim is fulfilled. You should know that God knows your innermost thoughts, and observe Him. You should know that God is Forgiver, Clement.

Divorced women have to be provided for
This is probably one of the abused laws in the Quran. But God holds us responsible for our innermost thoughts. If one observes God’s laws then God makes it easy for him / her.

[Quran 65:7] The rich husband shall provide support in accordance with his means, and the poor shall provide according to the means that God bestowed upon him. God does not impose on any soul more than He has given it. God will provide ease after difficulty.

Alimony For Widows and Divorcees

[Quran 2:240] Those who die and leave wives, a will shall provide their wives with support for a year, provided they stay within the same household. If they leave, you commit no sin by letting them do whatever they wish, so long as righteousness is maintained. God is Almighty, Most Wise.

[Quran 2:241] The divorcees also shall be provided for, equitably. This is a duty upon the righteous.

Compensation when marriage is not consummated

Breaking the Engagement:

[Quran 2:236] You commit no error by divorcing the women before touching them, or before setting the dowry for them. In this case, you shall compensate them - the rich as he can afford and the poor as he can afford - an equitable compensation. This is a duty upon the righteous.

[Quran 2:237] If you divorce them before touching them, but after you had set the dowry for them, the compensation shall be half the dowry, unless they voluntarily forfeit their rights, or the party responsible for causing the divorce chooses to forfeit the dowry. To forfeit is closer to righteousness. You shall maintain the amicable relations among you. God is Seer of everything you do.

Divorced women entitled to stay in the same house she stayed before divorce Do Not Throw the Divorcees Out Onto the Streets

[Quran 2:231] If you divorce the women, once they fulfill their interim (three menstruations), you shall allow them to live in the same home amicably, or let them leave amicably. Do not force them to stay against their will, as a revenge. Anyone who does this wrongs his own soul. Do not take God's revelations in vain. Remember God's blessings upon you, and that He sent down to you the scripture and wisdom to enlighten you. You shall observe God, and know that God is aware of all things.

[Quran 65:6] You shall allow them to live in the same home in which they lived with you, and do not make life so miserable for them that they leave on their own. If they are pregnant, you shall spend on them until they give birth. If they nurse the infant, you shall pay them for this service. You shall maintain the amicable relations among you. If you disagree, you may hire another woman to nurse the child.

Divorce can be retracted twice:

In other words, if the couple reconciles after the first divorce and wish to be husband and wife again, they can re-marry. This is allowed for two divorce only. If the couple divorces third time they have to observe God's commandment in 2:230 (quoted below.) God makes it not-so-easy for the couple to divorce. This law serves as a deterrent for those who want a divorce for the third time and they would be very careful to take this step.

[Quran 2:229] Divorce may be retracted twice. The divorced woman shall be allowed to live in the same home amicably, or leave it amicably. It is not lawful for the husband to take back anything he had given her. However, the couple may fear that they may transgress God's law. If there is fear that they may transgress God's law, they commit no error if the wife willingly gives back whatever she chooses. These are God's laws; do not transgress them. Those who transgress God's laws are the unjust.

[Quran 2:232] If you divorce the women, once they fulfill their interim, do not prevent them from remarrying their husbands, if they reconcile amicably. This shall be heeded by those among you who believe in God and the Last Day. This is purer for you, and more righteous. God knows, while you do not know.

[Quran 2:230] If he divorces her (for the third time), it is unlawful for him to remarry her, unless she marries another man, then he divorces her. The first husband can then remarry her, so long as they observe God's laws. These are God's laws; He explains them for people who know.

Also note the words "It is not lawful for the husband to take back anything he had given her." in 2:229.

In case there is a baby during the interim: If during the observation of the interim period it is discovered that the divorced women is pregnant then as stated in 65:4 the interim ends upon giving birth. God has decreed the following law dealing with the infant:

[Quran 2:233] Divorced mothers shall nurse their infants two full years, if the father so wishes. The father shall provide the mother's food and clothing equitably. No one shall be burdened beyond his ability. No mother shall be harmed on account of her infant, nor shall the father be harmed because of his infant. (If the father dies), his inheritor shall assume these responsibilities. If the infant's parents mutually agree to part, after due consultation, they commit no error by doing so. You commit no error by hiring nursing mothers, so long as you pay them equitably. You shall observe God, and know that God is Seer of everything you do.

Under what conditions can a woman divorce her husband?

Whichever party chooses for divorce must obey the laws as aforesaid. Normally divorce is mutually decided by the couple. If the aforesaid laws are observed, there could be a situation where either of the spouse may not give their consent but if the arbitrators from both the families decide that divorce is the best solution for the estranged couple then they would, nevertheless go through divorce. The divorce laws are applicable to both man and woman (4:35 and 2:237 indicate this) except that there are certain additional laws which a divorced woman has to observe.

The following seem to be the only conditions where a believing women leaves her husband without observing the above laws. In fact, I think in this case even a formal divorce is not required under Quran. However if the law of the land requires a formal divorce then one must follow suit.

[Quran 60:10] O you who believe, when believing women (abandon the enemy and) ask for asylum with you, you shall test them. God is fully aware of their belief. Once you establish that they are believers, you shall not return them to the disbelievers. They are not lawful to remain married to them, nor shall the disbelievers be allowed to marry them. Give back the dowries that the disbelievers have paid. You commit no error by marrying them, so long as you pay them their due dowries. Do not keep disbelieving wives (if they wish to join the enemy). You may ask them for the dowry you had paid, and they may ask for what they paid. This is God's rule; He rules among you. God is Omniscient,

Conclusion:-
Thus, it is very much clear that the present form of Triple Talaq as is prevalent and is being considered an evil does not find anywhere mention in Holy Quran nor in the messages of Prophet Muhammad (SAW). Thus, a thing/procedure which is not a part of Islam cannot be used to defame the Islamic Laws and principles which are in itself bery much true and right and cannot be doubted in any manner being revelations of Allah.

Bibliography:-
Article Shared by Pragati Ghosh

 




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