CIA - 3

FAMILY LAW II
TRIPLE TALAQ

SUBMITTED BY:
ANUJIT MOOKHERJI
1216408
5 BBA LLB-B
SCHOOL OF LAW
CHRIST UNIVERSITY

ABSTRACT

The issue of the triple divorce is regarded as highly sensitive among the Muslims, not only
in India but elsewhere. The Holy Quran is very cautious in matters of divorce.
Three talaqs have to be spaced over a period of 3 months to give husband and wife time for
reconciliation through the intervention of relatives and friends. Moreover, talaq can be
pronounced only when the wife is in a state of tuhur, ie purity after menstruation. Yet, despite
clear Quranic injunctions to the contrary, immediate triple divorce is permitted, destroying
marital life in one breath. The practice of immediate triple divorce is widespread among
Sunni Muslims and has legal validity. Even then the jurists call it a talaq-e-Bidat (innovative
form of divorce). The dispute has been highlighted by reports of some Muslims instantly
divorcing their wives by mail, over the telephone, and even through mobile phone text
messages. This article explains the different theories of divorce prevailing in the
contemporary Muslim world and what checks and restraints have been imposed by Islam
over the exercise of husband's power of talaq. The article critically studies the aspects as to
why talaq-ul-biddat has been criticized over the years and why it is sought to be regulated by
countries with majority Muslim population.

RESEARCH QUESTION

The main area of focus would be whether triple talaq is a good way of divorce. It has been
criticized by many over times and even defended by others, its relevance in present society is
the main focus of this research paper.

TRIPLE TALAQ
Triple talaq, a form of unilateral divorce by Muslim husband, is also known as talaq-ulbiddat. It is the irregular mode of divorce, which was introduced by the Ommeyad
Caliphates in the second era of Muslim era. The prophet of Islam preached that Talaq itself
was the most detestable act permitted by God. Scholars accept taht the exercise of Talaq,
without any cause, like that in case of triple talaq is morally and religiously ignoble.
The divorce under Talaq-ul-biddat may be either triple talaq or one single declaration of
Talaq. If a man says to his wife taht she has been divorced yesterday or earlier, it leads to a
divorce even if there is no proof of divorce on the previous or earlier day. The Honble
Supreme Court in the case of Shamim Ara 1 considered the validity of triple talaq in the light
of ancient rulings and text books like Mulla and Dr Tahir Mahmoods Muslim Law of India
on the issue of triple talaq. The court upholding such kind of talaq invalid observed that
observations of such scholars were not in sync with the recent times of progressive and
modern laws, and hence regressive trends of society need to be compromised.
Section 311 of Mullas Principles of Muslim Law 2explains talaq-ul-biddat as :
(i)

three pronouncements made during a single tuhr either in one sentence, e.g., I
divorce thee thrice or in three separate sentences, e.g., I divorce thee, I divorce

(ii)

thee, I divorce thee.

A single pronouncement made during tuhr clearly indicating an intention
irrevocably to dissolve marriage e.g., I divorce thee irrevocably

In Ameer Uddin3 case it was held that talaq-ul-biddat was good in law but bad in theology, as
it is most common and prevalent mode of divorce in the country. In case of talaq ahsan and
talaq hasan, the husband has an opportunity of reconsidering his decision, for the talaq in
both these cases does not become absolute until a certain period has elapsed. But the talaq-ulbiddat becomes irrevocable immediately after it is pronounced. One of the tests of
irrevocability is the repetition three times of the formula of divorce within one tuhr. But the

1 Shamim Ara v State of UP, AIR 2002 SC 321

2 Principles of Mohammedan Law, Mulla, 19th Edn, Lexis Nexis, 1990
3 Ameer Uddin v Khatun Bibi, ILR [1917] 39 All 371

triple repetition is not a necessary condition, and the intention to render a talaq irrevocably
may be expressed even by a single declaration.
Talaq-ul-biddat is a recognised form of divorce amongst the Hanafi School. Triple repetition
is not necessary for irrevocability to the effect. Sunni law recognises talaq-ul-biddat though
they consider it to be sinful. Shias and Malikis do not recognise such form of divorce. Talaqul-biddat is irrevocable immediately and cannot be revoked under any circumstances, from
the very beginning it is a talaq-i-bain.
The High Court of Patna4 relying upon a passage on p.74 of the Hedaya expressed that talaqul-biddat effected by a triple pronouncement is valid even if it is pronounced when the wife is
in her menstruation. This judgement was over ruled and criticized based upon the disapproval
of Prophet about the capricious and irregular power of divorce left in the hands of the
husband.5
In a case the Assam High Court6 upheld that There has been a good deal of misconception of
the institution of talaq under muslim law. Both from the Quran and the Hadith it appears that,
though divorce was permitted, yet the right could be exercised only under exceptional
circumstances. There is a large and influential body of Muslim jurists who regard talaq
emanating from the husband as really prohibited except for the necessity and only with the
sanction of a judge administering Muslim Law. Therefore the judicial intent behind the
validity and enforceability of triple talaq is also clear and unambiguous as the learned judges
expressively discouraged the concept.
Even in Pakistan and Bangladesh for instance the concept of instant talaq or talaq-ul-biddat is
no more possible and such cases are now regulated by Section 7 of the Muslim Family Laws
Ordinance 1961,7 which subjects it to the true Islamic procedure for the same. In Ghulam
Fatima8 case the Pakistan Supreme Court interpreted the provision of the ordinance, trying to

4 Sheikh Fazlur v Aisha, AIR 1929 Pat 81

5 Ameer Alis Mohammedan Law, Vol. II p 514
6 Jiauddin Ahmed v Anwara Begum, (1981) GLR 358
7 Amin S.H., Statutes of Personal Law in Islamic Countries, 2nd Edition, IIRC, Delhi, 1995, pp. 255-8

restrict the misuse of the traditional law by the husbands. Hence even Muslim countries like
Pakistans changing attitude emancipates the invalidity of triple talaq.

In order to understand the concept of triple talaq and its constitutionality, we shall consider
the Madras High Court A.S. Parveen Akhtar9 case elaborately :
1. Summary of Facts:
The temporary factual matrix of the case is as follows: A.S. Parveen Akhtar, the Petitioner
higher than named was a Muslim lady UN agency was married to Y. Md. Ismail Farook, the
second Respondent on 06.02.1990. once the wedding, there have been martial variations
between the husband and therefore the adult female.
As per the Petitioner, her folks had been compelled to administer dower before the wedding.
however in spite of constant, the second Respondent (the Petitioners husband) vulnerable to
divorce the Petitioner, if she didn\'t persuade her folks to administer him a scooter as an extra
dower. Since the Petitioners folks were unable to supply for the extra dower demand.
Therefore, the Petitioner was thrown out of Respondent No.2s home on 04.03.1991, which
she was forced to remain in a very native girls hostel. Further, the second respondent had told
the Petitioner that he would allow her to measure with him provided that extra dower is given
to him by her folks. Thereafter, the Petitioner on 01.05.1991 was intimated through her father
that the second respondent had pronounced talaq within the presence of 2 witnesses in a very
single sitting in Talaq-ul-biddat type and a receipt of the notice was sent by the second
respondent to the Petitioners father, makes an attempt were created to steer the second
respondent to require back the Petitioner, however he declined to try and do thus on the
bottom that the irrevocable talaq had already taken place.
Pursuant to the said events, the Petitioner most well-liked a legal instrument petition no. 744
of 1992 before the Honble tribunal of Madras, for a declaration that Section two of the
Muslim Personal Law (Shariat) Application Act, 1937 in to this point because it seeks to
recognise and validate Talaaq-ul-Biddat or Talaaq-i-Badai kind of divorce as void and
unconstitutional intrinsically kind of talaq isn't solely offensive to natural justice however
8 Ghulam Fatima v Abdul Qayyam PLD 1981 SC 460
9 A.S. Parveen Akhtar v UOI, W.P. No.744 of 1992

conjointly offensive of basic rights secured below Artic14, Article 15 and Article 21 one of
the Constitution of India.

2. The Judgment:
After hearing each the parties, a division bench comprising of Honble Mr. Justice R.
Jayasimha adult male and Honble Mr. Justice E. Padmanabhan, command that no matter
could also be the shape of talaq, 1st and foremost it should be for an inexpensive cause, and
should be preceded by many makes an attempt for reconciliation by arbitrators chosen from
the families of every of the spouses. As per the Honble Court, the grounds on that the
petitioner has wanted a declaration that Section two of the Muslim Personal Law (Shariat)
Application Act, 1937 in to this point because it seeks to acknowledge and validate Talaaq-ulBiddat or Talaaq-i-Badai kind of divorce, as void and unconstitutional, square measure in the
main that it doesn\'t offer for reconsideration and isn\'t preceded by makes an attempt at
reconciliation. The Honble Court command that the petitioners apprehension that
nevertheless absence of cause and no efforts having been created to reconcile the spouses,
this kind of talaq is valid and not going against the constitution of the country. The legal
instrument petition was consequently discharged.
3. Critical Analysis
Talaq-i-Biddat in its true essence stands for innovated (or sinful) kind of Divorce. it's outlined
as a divorce that is pronounced thrice in one sitting once the adult female is within the state of
purity (turh). In keeping with the Hanafi, Mohammedan leader and Shafii once triple divorce
is pronounced, the adult female can become wholly alienated from the husband and he cannot
marry her. She becomes haram (totally prohibited) for him. Neither will he take her back nor
will he choose contemporary nikah along with her though the husband will choose nikah
along with her solely once she marries another person which person divorces her on account
of marital status conflict or she becomes a widow.10
The most abominable facet of triple talaq is its clear difference for it doesn't bestow the
proper within the hands of lady because it will just in case of the alternative sex. Strangely,
the adult female would wish to travel to a Darul Qaza and prove the atrocities committed by
10 Family Law: Hindus, Muslims, Christians, Parsis and Jews, Paras Dewan, 6th Edn, 2001

her husband so as to urge a divorce. While, the husband will pronounce talaq on the adult
female as in once he desires to, with none justification or logic, the person has power to
interrupt the wedding at even impulsive ground however the ladies haven't any type of
protection.11 Hence no quality of male and female.
Further, a lady once the dictum of talaq has got to give up her mehr that she gets along side
her at pure whim of her husband. owing to this kind of talaq a lady not solely has got to lose
her mehr however conjointly forgo her life once matrimony with none say so triple talaq tired
all is offensive of Article 14.
Is it right to believe that a wedding that is entered by the need of each is unilaterally
destroyed. In fact, within the instant case of Praveen Akhtar, the difference and
irresponsibleness clearly reflects within the proven fact that the lady wasn't even told directly
by the husband regarding the talaq however was hip to by her father. So however will this
kind of talaq be in line with the proper to Equality when even business contracts can't be
tamed this manner.

11 Outlines of Muhammadan Law, Asaf A. A. Fyzee and Tahir Mahmood, 5th Edn, 2009

CONCLUSION
In Ahmedabad Women's Action Cluster12 case, a judicial writ petition was filed to declare
Muslim Personal Law, that permits a Muslim male to provide unilateral talaq to his married
woman while not her consent and while not resort to judicial method of courts, as void,
offensive Articles thirteen, fourteen and fifteen of the Constitution. However, the Court
refused to entertain the judicial writ petition as a result of the difficulty concerned State
policies. The Court was of the opinion that the remedy couldn't be provided by the judicial
method and instead should be wanted elsewhere.
At the same time, the Court has tried to introduce some safeguards into the talaq method. The
Court has explicit that talaq, so as to be effective, has got to be pronounced. In Shamim Ara
case13, a mere plea taken during a written statement of a divorce having been pronounced
someday within the past was command to not be treated as effectuating a talaq. Instead, a
talaq had to be pronounced, that is, it had to be announced, spoken formally and articulated.
Therefore, the Court has introduced a condition precedent for the effectiveness of a divorce.
I entirely disagree with this approach of the court within the AWAG case. Under our theme of
laws, the courts area unit sure to offer their opinion of the constitutional validity of any
personal law, be it Hindu, Muslim, Sikh or religious person. If Muslim countries like Pakistan
can enact laws to control the misuse of old laws and customs then I see no reason as to why a
Secular country like India shall find itself in shackles of bad customs. Triple Talaq is a direct
threat to the concept of woman empowerment and pro patriarchal society which in turn is an
anti thesis to one of the fastest developing nations of the world, India.

12 Ahmedabad Women's Action Group (AWAG) and others v. Union of India, (1997) 3 SCC 573
13 Shamim Ara v. State of UP and another, (2002) 7 SCC 518