Sunday 15 October 2017

Talaq-ul-Biddat: Sharia Perspective by Nehal Ahmad Nadwi



TALAQ-ul-BIDDAT : SHARIAH PERSPECTIVE

Introduction:

Personal laws evolve from religious practices and custom which form a part of the legal system. These personal laws should be in consistence with the Constitution and most importantly the fundamental rights. The practice which is followed in the name of religious practice should not be arbitrary, discriminate. But it should be within the principles of natural justice. Muslim laws in India are not codified and are subjected to varied interpretations from Shariat.[1]
Saira Banu is in her mid-30s. Sociology postgraduate and mother of two, she is just one of the many victims of the tyranny of triple talaq. Her story is gut-wrenching. Saira Banu endured physical and mental agony for over 10 years. Bad marriage, an abusive husband, forced abortions and then, last year, her husband sent a letter to her parents' home where she was staying for almost a year. Inscribed on that piece of paper were three words: "Talaq, Talaq, Talaq". The practice of triple talaq is certainly not without its fair share of controversies. However, the troubling aspect is that the so-called triple talaq, or instant divorce, has been banned in more than 20 Muslim countries, including our neighbors; Pakistan and Bangladesh, making it a cause for serious concern.
We are a nation which proudly professes to be the world’s largest democracy, guaranteeing the protection of equal rights to all our citizens while boldly holding the flag aloft of being a secular nation.[2]
Historical Background:
Some of the Sunni clerics have mentioned that the practice of triple talaq gained recognition and was sanctioned during the reign of second Caliph Omar. The reason for this practice to be sanctioned by Caliph Omar in certain cases was to help women come out of a bad marriage where their husband were delaying to give divorce by misusing the lengthy procedure provided in the law. It was for the sake of women that this practice gained sanctity in the 7th century, which was later, misinterpreted by the mullas who used this to suit their anti-women and patriarchal goals. Hence the practice of triple talaq in one sitting is a sinful form of divorce that suppresses women’s rights and violates equity or equal justice in the society.[3]
Marriage:
The Mohammedan jurists regard the institution of marriage as partakingboth of the nature of ibadat or devotional acts and muamlat or dealings among men.[4]
Divorce:
Islamic law permits talaq when wife commits infidelity or has a bad character which results in unhappy married life. In absence of the above reason, if husband gives talaq, it is not considered as an appropriate talaq in the eyes of religion. In the event that he relinquishes his wife, he draws upon himself the divine anger, for the scourge of God, said the Prophet, lays on him who revoked his wife impulsively.[5]
Prophet Muhammad restrained the power of divorce and gave to the woman the right of obtaining separation on reasonable grounds. The Prophet is reported to have said, “If a woman be prejudiced by a marriage, let it be broken off.”[6]
“Mahmud-b Labeed reported that the messenger of Allah was informed about a man who gave three divorces at a time to his wife. Then he got up enraged and said: “Are you playing with the Book of Allah who is great and glorious while I am still amongst you? So much so that a man got up and said; shall I not kill him.”[7]
Types of Talaq:
Talaq-e-Ahsan and Talaq-e-Hasan come under the head of Talaq-ul-Sunnat is the talaq which carries the approval of Prophet. Ahsan is most approved form of divorce where the husband disown his wife by a single pronouncement in a time of tuhr (purity, i.e., when the wife is free from her menstrual courses), amid which he has not engaged in sexual relations with her, and then leaves her to the observance of iddat. Hasan is approved form of talaq where the husband successively pronounces divorce three times during the time of tuhr. In other words it is a divorce upon divorce wherein the first two pronouncements are revocable and in the third pronouncement talaq becomes irrevocable.
Talaq-ul-Biddat is not the approved form of talaq as it does not consider the period of tuhr and also to the abstention from intercourse. Triple divorce is where the husband repudiates his wife by orally saying Talaq in one sentence thrice within the time of tuhr.[8]
There are certain procedures which need to be followed in order to give talaq to the wife. Firstly, he has to make the wife aware about his intentions of giving talaq and reason for the same as well as time to change her behavior. If her behavior does not change, then husband can resort to the process of conciliation by informing the elders in the family of the wife. Two arbitrators are appointed one from the side of wife and other from the side of husband. It is duty of the arbiters to bring settlement between the parties so that their married life is back to normal. In spite of the efforts which are being put in and the damage to the married life is irreparable then there is no alternative but to separate. At this stage the husband has the right to give talaq to his wife. The conciliation stage with the intervention of arbiters is a compulsory condition for effecting talaq either in Ahsan or Hasan form of talaq.[9]
There is no Quranic basis to establish that three divorces on a single occasion will amount to an irrevocable divorce; in fact the Prophet (PBUH) despised divorce[10] and described marriage[11] as his Sunnat. The Quran lays down only two kinds of divorces i.e. Talaq-Ahsan and Talaq-Hasan the same being in conformity with the dictates of Prophet (PBUH). The above two forms are considered to be the most proper forms of pronouncing the divorce. The third form i.e. Talaq-ul-Bidat, is considered to be the most sinful, innovated form of divorce as it is against the letter and spirit of Quran[12] and was disallowed by the Prophet (PBUH) himself.[13]
According to the Quran, a person is not supposed to divorce his wife when she is menstruating.[14] When a muslim divorces his wife, he has to divorce them for the period of their iddah[15] and wait for three courses (menstruation).[16] The prescribed time period of iddah is about three months and in case of pregnant women, the iddah period is till delivery.[17] During this period, the husband can take them back if they wish to (reconciliation).[18] Divorce given for two times is revocable but it is not so when made for a third time.[19] “When you have divorced women, and they have reached their term (iddat), then retain them on equitable terms or release them on equitable terms”[20]
The Supreme Court in Shamim Ara v. State of U.P. and Anr,[21] has upheld this view of Quran stating that there must be valid reasons for divorcing someone and there must be an attempt to reconcile. This view has further been upheld by many High Courts[22] including the Kerela HC in Kunimohammed v. Ayishakutty.[23]
 Legal Validity:
It is stated in the case of Mohamed Ahmed Khan v. Shah Bano[24] by Chief Justice Chandrachud stated that talaq confers upon the husband, “the privilege of being able to discard his wife whenever he chooses to do so for reasons that are good, bad or indifferent; indeed for no reason at all.”
The landmark judgment of Shamim Ara v. State of U.P.[25], the Supreme Court observed that a valid talaq obtained should be for a reasonable cause and further there should be attempts for reconciliation by the arbiters. If the above two conditions are not satisfied, the talaq is not valid and recognized. In the case of Shahzad v. Anisa Bee and others[26], the court cited Surah-4 Verse-35.[27] While laying out the valid form of divorce in case of termination of Muslim marriage which is pronounced unilaterally by husband, this verse of Quran commands for reconciliation between both the parties and if such attempt fails then this shall be deemed as a reasonable cause for divorce.
Talaq in the light of Quran and Sunnah: Religious Validity
The law of divorce in Islam is quite simple and moderate. But it is also true that the Fiqhi discussions (legal wrangling) raised in religion have not kept it in its simple form. Rather, they have made it very harsh and severe. As a result of this the Muslims are facing extraordinary difficulties in their social life. In order to keep the Muslim masses connected with the social system of Islam and to keep them obedient to the commands of the Shariat, it is necessary that, despite all the fiqhee hairsplitting, penetration and severity, social problems should be solved in the light of Quran and Sunnah.
Among the pre- Islamic Arabs, the power of divorce possessed by the husband was unlimited. They could divorce their wives at any time for any reason or without any reason. They could revoke their divorce as many times as they preferred.[28] It used to cause very much trouble and hardship to the woman and she was quite helpless.
The reformatory step of Islam is that it put an end to this unjust and oppressive and limitless series of divorcing. It authorized the husband to revert to his wife up to two talaqs so that, before the disruption of the family life the husband may have an opportunity of pondering over the consequences twice. Then that talaq (divorce) becomes Mughallizah (absolutely irrevocable). It means that thereafter he can neither revert to that wife nor can he remarry her until that woman weds another man and that another man divorces her of his own free will. This order has been enforced so that man may not go on harass in the woman by divorcing her repeatedly as was being done in the days of pre-Islamic ignorance.
In the words of Ameer Ali, the Prophet had to mould the mind of an uncultured and semi-barbaric community to a higher development.[29] The Ahsan (appropriate/right/correct) way of divorcing as per the guidance of the Holy Quran and the Sunnah is that he should suffice with giving only one talaq during the period of cleanliness (non-menstrual). He must not have copulated (sexual intercourse) with his wife. This talaq(divorce) will remain Rajaee (revocable or revertible) during iddat (the waiting period). And that it will become Baain after the passing of iddat. But if the man and the woman so desire, they may remarry (through a repeated Nikaah).  Those men who rush to pronounce three talaqs at a time or in one sitting except that they exhibit total ignorance. They basically ignore the explicit and emphatic command of the Holy Quran. "These are the limits imposed by Allah. Do not transgress them."[30] And, further: "Do not treat Allah's signs as jest."[31]
Now the question is whether the Holy Quran has resolved that the pronouncing talaq three times will be considered as thrice? Nowhere in the Holy Quran it is clearly mentioned that triple talaq at a time will be considered three talaqs. Those who think so base their argument on this verse of Holy Quran:
"Divorce is to be given two times and then (a woman) must be retained in good manner or released gracefully. And it is not lawful for you that you take from women anything of what you have given them; except (in the case) when both feel that they may not be able to keep within the limits imposed by Allah. And if you fear that they may not be able to keep within the limits of Allah, in that case it is not a sin for either of them if the woman pays compensation and gets herself released. These are the limits imposed by Allah. Do not transgress them. For whosoever are the limits imposed by Allah. Do not transgress them. For whosoever transgresses Allah's limits; such persons are wrongdoers. So if a husband divorces his wife (after two times) he cannot, after that, remarry her until after she has married another husband (and he has divorced her)."[32]
They think that the word "marrataan" (two times) in this verse means repeating the word tataq' or to give divorce with the specification of number. Therefore, they say that if the words "talaq,talaq, talaq” are pronounced or "three talaqs" is uttered then it is three talaqs. The fact, however, is that "marrataan" does not mean to repeat the word talaq but it means to give talaq on a second time.[33]
In Arabic language the meaning of "marrataan" is MARRATAN BAAD MARRAH. (On another occasion after the first time) It never means mere verbal repetition of a word. There are such examples in the Holly Quran. For instance, at one place it is mentioned:
Do they not see that they are tested once or twice in every year?" At another place "O you who believe! Let your slaves and those (children who have not attained puberty) ask your leave at three times (before they came into your presence).[34]
Following these verses, the details of the three relevant times have been given. Obviously, here, "thalaat marraat" (in three times) means three different times (occasions) and not a coincidence of three times in one occasion. However, it was said in Durrul-al-Mukhtar that if pronounce talaq or write it in any particular form, it will be considered as the talaq.[35] It was further described that mere pronouncement of words is enough for the revocation of divorce not the intention.[36]
Similarly, if somebody says these words, "I recite Subhanallah for thirty-three times" it will be considered only one tasbeeh and not 33. Thirdly, there is the example of four swearing (oaths), which has been commanded in the matter of lian (cursing the lier when husband blames his wife for adultery). If someone, instead of taking oaths four times, says " I say this on four oaths” then it will be regarded as only one oath, not four.[37] Therefore, Imarn Raazee writes: "Give the talaq marrataan, that is, give talaq at two times". [38] It has been ordained in Surah Talaq that whenever a talaq is given it must be given for an iddat (period) "O Prophet! When you (people) divorce (give talaq) you wives, divorce them for their iddat(prescribed time). And reckon the iddat."[39]
 Meaning thereby, the talaq should be given at such a time from which the iddat can be counted. A man who gives three talaqs at a time has no regard for iddat period. Because, the iddat began from the moment he gave the first pronouncement of talaq but this iddat period is disregarded for the second and the third talaq. It is necessary to consider iddat for every talaq. "When you have divorced women, and they have reached their term, (iddat), then retain them on equitable terms or release them on equitable terms."[40] This verse makes it clear that when the term of iddat is about to come to its end the wife can be retained in a nice way. It means that the husband can revert to her before the end of iddat. If a Nass (Divine order either in Quran or in Hadith) is available in this respect then there is no problem but if there is no such Nass text then it only means that the man has a right to revert to his wife before the end of the iddat of the third talaq. In short, the applicability (effectiveness) of three talaqs (irrevocable) by the utterance of triple talaq (at one sitting) is not proved by any text of the holy Quran, because, nowhere in the Quran it is specifically mentioned that triple talaq at a time will have the effect of final divorce.

Does the Hadeeth support the triple talaq?

ln Sahih Bukhari there is a hadith of Hazrat Ayesha (R.A.) "The wife of Rifaah Qurzi came to the Holy Prophet (sallallaahu alaihi wasallam) and said: "O Messenger of God! Rifaah has awarded to me Talaq e Battah (cutting off divorce). Then I married Abdur Rehman bin Zubair Qurzi but he is unfit for matrimonial. The Holy Prophet said: Perhaps you want to go back to Rafaah. But no. It cannot be, unless he (your second husband) tastes you and you taste him."[41] In this hadeeth there is a mention of Talaq e Battah the (cutter talaq). But it is not clear that the husband had given three talaqs at one time. Of course, the hadith of Sahih Muslim makes the kind of that talaq specific. Its wordings are, "He gave the last of the three talaqs". (It means the final of the three divorces, which had remained, was also given.)[42] In this tradition, there is no specific mention of three talaqs in one sitting. How then can it be proper to argue the application or effectiveness of it?
Therefore, Allamah lbn e Hajar has written in'Fath ul bari': "It is not correct to base an argument in favour of triple talaq on this hadeeth'.[43] hadith which is of lbn e Abbas (R. A.) and which is reported in Sahih Muslim and is also very well known: "lbn e Abbas says. In the time of the Holy Prophet and during the time of Abu Bakr and also duringthe initial two years of Umar's caliphate, triple talaqs were considered as one. But Umar said: people have begun to make haste in a matter in which they were given an opportunity to think. So why should we not make it applicable. So he applied it on them”.
Different causes have been given for the decision made by Hazrat Umar. Allamah lbne Qaiyyim says: Umar did not make any alteration in the sharaee position of the triple talaq at a time. Rather, he had made them effective by way of punishment. And for punishment ijtihaadaats (religious judicial diligence) of caliph Umar are well known, for example, the burning down of wine shops, awarding a punishment of 80 lashes to drunkards and to extradite them etc. When the sahabas saw that caliph Umar is enforcing his decisions in the common interest of the community they also agreed with him in such matters. This hadith, as noted in Sunan e Abi Daawood, contains the words. “Whenever a man gave three talaqs to his wife before copulating (Khalwat) with her it was being regarded as only one talaq". But Imam Navavi writes that the narration (rivayat) of Abu Dawood is weak (dhaeef).[44] In view of all these things it is not correct to take this hadeeth as a proof of the effectiveness of triple talaq. The fifth hadeeth is that of Abdullah bin Umar. It is, as noted in Saheehain: "lbne Umar relates that in the time of the Holy Prophet he had given a talaq to his wife when she was in her period (of menstruation) Umar inquired about it from the holy prophet who replied that: tell him to revert to his wife and then leave her in that state until she becomes clean. Then when she, once again, becomes clean after her next period he may either retain her or divorce her before copulation. This is the period of iddat about which Allah has ordained concerning talaq to women." This is a sahih (correct) hadith. But there is no mention of three talaqs in it anywhere. When a clear and authentic hadith is not available, it is enough to suffice with the words of the holy Quran. Unclear and unauthentic hadiths cannot prove the effectiveness of three talaqs at a time.
The author of the famous Egyptian book "Kitab ul Figh ala mazahibil Arbaah" writes: "But the fact is that the Muslim consensus over this issue is never proved. Many Muslim have disagreed with it. "In short, sensible is the word of those people who say that triple talaq in one sitting has the effect of one talaq because, it was so in the time of the Prophet and during the caliphate of the great caliph. Abu bakr also during the first two years of the Farooqui caliphate. Thereafter the ijtihad done by Umer was disputed by others. So the taqleed (following) of the disputers (those who disagreed) too is as permissible as that of caliph Umer. God Almighty has never burdened us by ordering us to dig deep to find out certainty in secondary things because it is not practical to do so."[45]
Allamah lbn e Taimiyah writes: - "If somebody gives three talaqs in one wording or in three wordings in one Tuhr (wife's period of cleanliness) then it is haraam (unlawful) to do so according to the opinion of the majority of ulema. But the question of its being effective is under dispute. One opinion is that three talaqs will be operative and another is that it will amount to only one talaq. And the latter is correct as it is supported by the Quran and Sunnah as has been described in detail earlier elsewhere."[46]
Allamah lbn e Qaiyim writes: "Allah has ordained the giving of one talaq after another. To give combined three talaqs (on one occasion) is not really regular".[47] Imarn Razee says: "Many religious scholars have said that if a man has given two or three talaqs, only one will be operative and this say is nearer to reason because, the prohibition or inadmissibility of anything shows that there is a lot of harm in that prohibited thing. So the opinion which considers the triple talaq operative or effective is like admitting the harmful thing (corruption) which is not allowed. Therefore, it is necessary to decide that such triple talaq is inoperative and ineffective."[48]
Though the four imams are of the opinion that triple talaq in one sitting is effective, a group of ulema believes that it gives effect to only one talaq. For example lbn e Abbas, lkramah Tawoos,lbn e Ishaq, Imam Razee, Imarn lbn e Taimiyyah Allamah lbn e Qaiyim, Dawood Zahiri and others. "There is nothing in the religious arguments contained in Quran, Sunnah, ljmaa and Qiyas which gives the effect of three talaqs by a man who had given triple talaq in a sitting.[49]
The solution of the problem of triple talaq in one sitting is that, together with propagating religious understanding and taqwa (God-fearing) among the Muslim masses they should be taught the correct and regular way of giving talaq They should be guided that if anybody does intent to give talaq to his wife he should suffice by giving only one raja (revocable) talaq and that too in a period of his wife cleanliness (tuhr) in which there was no sexual intercourse. Thereafter, if he does not want to revert to her, he must allow the period of iddat to pass. After the passing of this iddat there will still remain an opportunity of second nikah (remarriage with the same spouse) and hence there will be no need of repentance. On the one hand, Muslim masses should be made aware of this legality of Shariah and on the other, the ulema should issue the fatwa that three combined talaqs constitute only one talaq.

Rules in Contemporary countries:
1. Pakistan:
It was abolished after recommendations by a 7-member commission on marriage and family laws in 1956 and framed the legislation of marriage and divorce similar to Egypt, the husband must pronounce Talaq in three successive menstrual cycles.
Simultaneously three times pronounce of Talaqs will be counted as one. Then, man and woman have the right to ask for separation when a dissension arises, then, investigation is conducted by a court into the reason for dissension. In the end, Appointment of arbitrator by a court for reconciliation and court eventually decides the outcome.[50]
2. Algeria(Islam is the official religion): “Divorce cannot be established except by a judgment of the court preceded by an attempt at reconciliation for a period not exceeding three months.”[51]
3. Egypt: (a secular state): “Article 1. A Talaq pronounced under the effect of intoxication or compulsion shall not be effective.
Article 2. A conditional Talaq which is not meant to take effect immediately shall have no effect if it is used as an inducement to do some act or to abstain from it.
Article 3. A Talaq accompanied by a number, expressly or impliedly, shall not be effective except as a single revocable divorce.
Article 4. Symbolic expressions of talaq, i.e., words which may or may not bear the implication of a divorce, shall not affect a divorce unless the husband actually intended it.”[52]
4. United Arab Emirates(Islam is the official religion): If a husband divorces his wife after consummation of a valid marriage by his unilateral action and without any move for divorce from her side, she will be entitled to compensation besides maintenance for Iddat.
“The amount of compensation will be decided with due regard to the means of the husband and the hardship suffered by the wife, but it shall not exceed the amount of one year’s maintenance payable in law to a woman of her status. (2) The Kazi may decree the compensation, to be paid as a lump sum or in installments, according to the husband’s ability to pay.”[53]
5. Bangladesh(Islam is the official religion): Ordinance VIII of 1961 amended in Bangladesh by Ordinance 114 of 1985: “Section 7. (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever contravenes the provision of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both. [Bangladesh: 10,000 taka)
“(3) Save as provided in sub-section (5), a Talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.
“(4) Within thirty days of the receipt of notice under sub-section (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration council shall take all steps necessary to bring about such reconciliation.
“(5) If the wife be pregnant at the time Talaq is pronounced, Talaq shall not be effective until the period mentioned in sub-section (3) or of pregnancy, whichever are later, ends.
“(6) Nothing shall debar a wife whose marriage has been terminated by Talaq effective under this section from re-marrying the same husband without any intervening marriage with a third person, unless such termination is for the third time so effective.”[54]
6. Tunisia: As per Tunisian Code of Personal Status 1956, it enshrine that the institution of the marriage comes under the ambit of state and judiciary which cannot allow husband unilaterally to verbal divorce his wife without explanation of reason.
7. Indonesia: Every divorce can only be executed by a court decision. An agreement to divorce between the husband and wife will not be constituted as a divorce, only a court decision may constitute a divorce. It is regulated under Law No. 1 of 1974 concerning Marriage (“Marriage Law”) which also further regulated under Government Regulation No. 9 of 1975 concerning The Implementation of Law No. 1 of 1974 concerning Marriage (“Marriage Regulation”).
8. Iraq: It was the first Arab country to replace Sharia court from the government-run personal status court.[55]
3 Pronouncement to be considered as 1:
The Delhi High Court considered different forms of Talaq in Masroor Ahmed Vs State (NCT of Delhi) and Anr.[56] It took the views of Sunni schools which were considered that triple talaq which is pronounced at one go is not regarded as three talaqs but only as one. The court took the notice of harsh abruptness of the practice of triple talaq which affects the divorced women as there is no chance left for reconciliation. The court observed that it is a development which may have filled a need at a specific purpose of time in history but it is found such a move would not be contrary to any essential precept of Islam or the Quran or any decision of the Prophet Muhammad. The court held that triple talaq will be regarded as one revocable talaq.
The judiciary has interpreted the verse of Quran and also taken note of the views of different schools of Islam while deciding the cases with respect to triple talaq. The above observation of courts indicate on how the Muslim community needs to be educated about the correct procedure of divorce and pronouncing talaq in one sitting is oppressive against women.
Suggestion on Legislation and Punishment:
It is also reported that Hazrat Umar used to punish people who pronounced three divorces at the same time. This also supports the view that he wanted to discourage people from this course of action.[57]
The Muslim Board also placed on record resolutions adopted by it at a meeting held on April 14, 15 and 16, 2016. The “resolution regarding divorce” dated April 16, 2016 said “the stand of Shariat is clear about divorce that the pronouncement of divorce without any reason and that three divorces in one go are not the correct methods of pronouncement of divorce. Such a practice is strongly condemned by the Shariat.”
The Board will, therefore, start a “grand public movement for desisting the people from pronouncing divorce without any reason and that in case of necessity only one divorce should be resorted to and in any case three divorces in one go should not be resorted to. Every effort should be made to convey this message to all the segments of Muslims especially to the poor population and the help of Imams and orators of the mosques should be called for”, it added.
The meeting also decided that “those who resort to triple divorce in one go leading to the creation of problems thereafter should be boycotted by the Muslims. This social boycott will be much helpful in decreasing the incidents of divorce”.[58]
The then Chief Justice of India J S Khehar and Justice Abdul Nazeer had refused to strike down the practise of triple talaq. They had said that triple talaq is a fundamental right and hence cannot be struck down. Instead they directed the centre to come up with a law within six months. The judges who dissented and struck down triple talaq were Justices Kurian Joseph, R F Nariman and U U Lalit.[59]
The Muslim Board in their recent guidelines has clearly stated that punishment should be given to the wrongdoer and if the Parliament passes the law which validates talaq-e-biddat, then strict punishments should also be there in the Act like the one we have in Bangladesh.[60]



Conclusion:
Thus, Triple Talaq is unislamic, unconstitutional, negated by highly regarded Islamic scholars and also is invalidated by many muslim-countries. The Parliament should pass an appropriate law regarding it and the Muslim Board should come up with working ideas of educating the masses.
Also, the best solution to remove the menace of triple divorce under the Hanafi School is to order the incorporation of an explicit condition in the Nikahnama that there shall be no instant triple divorce and the wife too will have a right to divorce.[61]


Nehal Ahmad Nadwi*
·         The author is an Aalim from Darul Uloom Nadwatul Ulama, Lucknow (Bachelor in Islamic Sciences and Jurisprudence) and is currently pursuing B.A.LL.B (Hons.) 3rd year from Faculty of Law, Aligarh Muslim University

& Faiz Azim is a student of B.A.LL.B (hons) 3rd year at Faculty of Law, Aligarh Muslim University







[1] Radica Belapurkar & Sagarika Ramesh, "Triple Talaq: Predomination over Muslim Women" 3 JCIL (Jan 2017)
[2] Sanjana Rao, Suryakiran G & Tejas C Shetty, "The Triple Talaq Tyranny" 2 JCIL (July 2016)
[3] Aquil Ahmad, Mohammedan Law 176-177 (23rd Edition, Central Law Agency 2008).

[4] Abdur Rahim: The Principles of Mohammadan Jurisprudence, Lahore Edn. 1958, p. 327
[5] Dr. Ahmad Galwash, The Religion of Islam 104 (1961)
[6] Aqil Ahmad, Mohammedan Law 163 (Central Law Agency, Allahabad, 26th edn., 2016)
[7] Mishkat-ul-Masabih: An English Translation and Commentary by Al Maulana Fazlul Karim p. 693 Islamic Book Service, New Delhi
[8] opcit-Radhika Belapurkar
[9] Khannubi W/O Salim Rayaliwale vs Salim S/O Rannu Rayaliwale, 2003 CriLJ 2888.
[10] [Abu Dawud 9: 2173] - Narrated by Abdullah ibn Umar “Allah’s Messenger (PBUH) said: Divorce is most detestable in the sight of God; abstain from it”;
[11] Tahir Mahmood, Muslim Law of India (LexisNexis-Butterworths, New Delhi, 3rd ed., 2002) at p. 48.
[12] Alamgir Muhammad Serajuddin, Shari’a Law and Society: Tradition and Change in the Indian Sub-continent (Dhaka: Asiatic Society, Bangladesh, 1999) at p. 201.
[13] Asghar Ali Engineer, Islam, women and gender justice (Gyan Publishing House, 1st ed., 2001) at p. 134-135.
[14] [Surah al-Baqarah 2:222]; See also [Sahih-Bukhari 68:1]
[15] [Surah at-Talaq 65:1]
[16] [Surah al-Baqarah 2:228]
[17] [Surah at-Talaq 65:4]
[18] [Surah al-Baqarah 2:228]18 [Surah al-Baqarah 2:229]
[19] [Surah al-Baqarah 2:230]
[20] [Surah Baqarah: 231]
[21] (2002) 7 SCC 513; cites with approval: Sri Jiauddin Ahmed v. Mrs. Anwara Begum (1981) 1 GLR 358; Rukia Khatun v. Abdul Khalique Laskar (1981) 1 Gau. L.R. 375;
[22] Riaz Fatma v. Mohammed Sharif I (2007) DMC 26; 135 (2006) DLT 205; Ummer Farooque v. Naseema 2005 (4) KLT 565; Nur Ali (Md) v. Thambal Sana Bibi 2007 (1) GLT 508
[23] 2010 (2) KHC 63
[24] 1985 AIR 945
[25] 2002 (7) SCC 518. 14 (2006) 1 MP LJ 555
[26] (2006) 1MP LJ 555
[27] Al Quran[Chapter 4, Verse 35], According to this verse, if you fear a breach of marriage between a man and his wife, appoint one arbiter from his family and another from hers; if they wish to reconcile, Allah will create a way of reconciliation between them. Allah is the Knowledgeable, Aware.
[28] Ibrahim Abdel Hamid, “Dissolution of Marriage” Islamic Quarterly, (1956)3 at p. 166.
[29] Ameer Ali, The Spirit of Islam, London, 1995 at p. 243
[30] Surah A baqarah: 229
[31]Al Baqarah: 231
[32](Al Baqarah:229-30)
[33] Zaad ul Maad' by Allamah lbne Qaiyim, Vol: 4, p.59.
[34] "Surah Noor, Verse: 58
[35] Al-Durrul-Al-Mukhtaar ma Al-Raddel-AlMukhtaar, chap. Kitabul- Al-Talaq, p.574, vol.2
[36] Al-Mabsoot Lil-Alsarkhasi, p.122, vol.6, pub. Egypt (1324.h)
[37]Allama Ibn-e-Qayyim, Zaad-ul-Ma’ad, vol. 4, p.59
[38] (At Tafseer ul Kabeer, Vol: 2, p.261.)
[39]SurahTalaq, Verse: 1
[40]Surah Baqarah: 231
[41]Bukhari, Kitab ut Talaq
[42]Muslim Kitab ut Talaq
[43]'Fath ul Bari' Vol: 7, p.386)
[44]Sharh e Saheeh Muslim lin navavi, vol: 1, p.478
[45]Kitab ul Fiqh alal Mazahibil Arbaah, Vol: 4. P 343-344
[46]Majmooah e Fataawaa e lbn e Taimiyah, Vol: 2, p.71
[47]Igathat ul Lahfan Vol: 1,p.283
[48]AtTafseer ul Kabeer, Vol: 2, p.260
[49] Mejmoo a Fatawa lbn taimiyyah, Vol; 33, p.92                                                         
[50] Muslim Countries where Triple Talaq is banned, available at, http://www.jagranjosh.com/general-knowledge/muslim-countries-where-triple-talaq-is-banned-1490788669-1 (modified at 22-AUG-2017 11:15)
[51] Law 84-11 of 1984 as amended in 2005
[52] Law 25 of 1929 as amended by law 100 of 1985
[53] Law of Personal Status 2005, Federal Law No.28 of 2005: “Article 140(1)
[54] Pakistan, Egypt among 19 countries that have abolished triple talaq, available at, http://indianexpress.com/article/india/pakistan-egypt-among-19-countries-that-have-abolished-triple-talaq-supreme-court-verdict-4808780/ ( Published: August 22, 2017 8:05 pm)
[55] Muslim Countries where Triple Talaq is banned, available at, http://www.jagranjosh.com/general-knowledge/muslim-countries-where-triple-talaq-is-banned-1490788669-1 (modified at 22-AUG-2017 11:15)
[56] 17 2008 (103) DRJ 137 (Del.)

[57] opcit, Aqil Ahmad, 175
[58] Muslim Board calls for social boycott of those who resort to triple talaq, available at, http://indianexpress.com/article/india/muslim-board-aimplb-calls-for-social-boycott-of-those-who-resort-to-triple-talaq-4668986/(Published at: May 23, 2017 5:04 am)

[59] List of countries where triple talaq is banned, Available at: https://www.oneindia.com/india/list-of-countries-where-triple-talaq-is-banned-2527065.html (modified on: Tuesday, August 22, 2017, 14:29 [IST])

[60] Ordinance VIII of 1961 amended in Bangladesh by Ordinance 114 of 1985: “Section 7. (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife. (2) Whoever contravenes the provision of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both. [Bangladesh: 10,000 taka)

[61] Law, Morality, Triple Talaq available at, http://indianexpress.com/article/opinion/coloumns/law-morality-triple-talaq-muslim-islam-4743272/ (updated on: 10th July,2017)

2 comments:

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  2. A beautiful compilation.
    The concluding suggestion from you, for the instant triple talaq is appreciated, being a bachelor in islamic jurisprudence.

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