8 Facts About Triple Talaq
Triple talaq (also known as talaq ul bidat/talaq-e-biddah or talaq-e-mughallazah) is a form of irrevocable Islamic divorce practiced by Muslims in India before it was declared unconstitutional here. It permitted a Muslim man to legally divorce his wife by uttering talaq (Arab word for divorce) thrice. It also permitted the Muslim community to initiate a divorce through various means such as verbal, written or even electronic form.
1. Islamic Talaq Types Islamic law recognises two kinds of talaq namely talaq al sunna which works as per the dictates of Prophet Mohammad and Talaq-ul bidat which is an innovation born out of the strict dictates of the prophet. Talaq ul bidat appeared in the second century when Omayyad rulers found laws proposed by the Prophet were too strict. Several Muslim majority nations have banned triple talaq.
2. Talaq-e-Sunnah vs Triple Talaq Nikah is essentially a contract laid down in a ‘Nikahnama’ drawn between the husband and the wife. This contract can have conditions and has a compulsory ‘consideration’ (Meher) to be paid at the time of the marriage. This consideration is paid by the man to the wife, and can be at time waived off by the woman as per her own will. To examine question of triple talaq, one must understand that in Islam, everything is followed as per Sunnah (Deeds of the prophet). Hence, most Muslim women bodies opposing ‘triple talaq’ want the Muslim bodies to adopt ‘Talaq-e-Sunnah’ (Divorce as per the Prophet’s sayings and Quranic dictation) and discard ‘Talaq-e-Biddah’ (Divorce as per a later formed mode of divorce which propagates instant divorce).
3. Fa’izu Hunna: Know More According to the Prophet’s sayings, giving talaq to a wife in a fit of rage or anger is strictly prohibited. The Quran advises the husband to settle the differences through a mutual conversation as the first step. This step is known as the Fa’izu Hunna.
4. Wahjuru Hunna: The Next Step If the differences continue between the husband and the wife, the parties should refrain from any conjugal acts till they settle their dispute. This step of physical separation known as the Wahjuru Hunna is prescribed so that the couple re-unites. However, even if this second step fails, it is recommended that the husband must attempt to talk to the wife, make peace with her and talk about the gravity of the situation. This third step is known as the Wazribu Hunna. However, Quran advises that even if the third step fails, the fourth step of ‘arbitration’ must be followed. In this step, a member from each of the spouses’ family is present and the parties try to make amends in the strained relationship.
It is only after all these four steps have failed that a husband pronounces the first talaq. The husband has to compulsorily wait for a wife’s iddah (menses) to complete before pronouncing another talaq. Not more than two talaqs can be pronounced during the course of iddah. Iddahs are considered to be the three monthly courses.
5. Instant Talaq: History of Opposition Instant Talaq is something which has its genesis is women being divorced through SMS or over a mere phone call. This instant talaq is essentially ‘Talaq-ul-bidat or Talaq-e-biddah’. ‘Biddah’ means innovation and essentially all Muslims are advised against introducing ‘biddahs’ in their religion. This practice of talaq was first promoted by Caliph Umar, and is staunchly opposed by all the petitioners who have approached the Supreme Court for a reform in the case of triple talaq.
6. Instant Divorce Banned in 20 countries The practice of instant divorce is already banned in 20 Muslim-majority countries, including Pakistan. Pakistan in 1961 passed the Muslim Family Laws Ordinance which states if a man wishes to divorce his wife, talaq needs to be pronounced and the state gives a written notice and an arbitration council follows. If individuals try to bypass the legislation, they will have to face imprisonment. Morocco is another country where a major population is Muslim.
The Moudawana or Moroccan Family Code was passed in 2004. This code put the husband and wife on the same footing, prohibiting the unilateral pronouncement of divorce except when it is under supervision. Like this country, Algeria, Indonesia, Iran and Tunisia have similar legislations that do not recognise divorce granted by the husband unilaterally. The aim is to compel parties to resort to the court of law. In Pakistan and Bangladesh, talaq ul bidat was banned in 1961. In Algeria, divorce can be established by a court. Malaysia requests court or qazi mediation before divorce is granted.
Countries that do not follow instant divorce Cyprus, Syria, Jordan, Egypt, Tunisia, Algeria, Iraq, Indonesia, UAE, Brunei, Malaysia, Iran, Turkey, Sri Lanka, Bangladesh, Pakistan
7. Triple Talaq: The Social Implications On 22 August 2017, the Indian Supreme Court struck down instant triple talaq (talaq-e-biddat) and termed it unconstitutional. Three judges on the five judge Constitution bench decided against triple talaq while two ruled in favour. Following triple talaq, the recommended practice, has a waiting period was required before each pronouncement of talaq, during which reconciliation is attempted. However, it had become common to make all three pronouncements in one sitting. While the practice was frowned upon, it was not prohibited. A divorced woman might not remarry her divorced husband unless she first married another man, a practice called Nikah Halala.
8. Multi Faith Bench Decides A multi-faith bench heard the controversial Triple Talaq case in 2017. Though 2 judges upheld validity of Triple Talaq (Talaq-e-Biddah), the three other judges held that it was unconstitutional, thus barring the practice by 3:2 majority. The bench asked the Central government to promulgate legislation within six months to govern marriage and divorce in the Muslim community. The court said that until the government formulates a law regarding Triple Talaq, there would be an injunction against husbands pronouncing triple talaq on their wives.
The sensitive issue is being heard by a multi-faith bench made up of five judges–a Hindu, a Sikh, a Christian, a Zoroastrian and one Muslim. The bench combined several petitions from Muslim women and rights groups into one to examine the issue.
