The Delhi High Court on January 12, sought the response of the central government on a petition seeking to declare talaq al-sunnah, the absolute discretion of a Muslim husband to divorce his wife without prior notice, as unconstitutional and discriminatory.
The review petition was filed seeking a clarification whether talaq al-sunnah also falls within the meaning of talaq under Section 2(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalises triple talaq. Section 2(c) of the 2019 Act states that talaq “means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband”.
Talaq al-sunnah is also called revocable talaq for it does not become final at once and there always remains a possibility of a compromise between the husband and wife. The petition was filed by a 28-year-old Muslim woman who with her nine-month-old child was deserted by her husband after pronouncing triple talaq. The Union government apprised the Court that while one form of talaq (instant talaq) has been declared illegal, the other two forms were not specifically covered by the 2019 Act although triple talaq has been declared unconstitutional. However, if a husband says talaq three times in three months to the wife, or with a gap, the same is not declared to be illegal, the centre added.
On September 23, while hearing the petition of a Muslim woman who feared that her husband will divorce her by talaq al-sunnah, the High Court said that the plea was misconceived in the light of the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, and in particular Section 3 thereof, which reads as follows: “3. Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.”
In the petition, the woman sought declaration that the assumed absolute discretion of the Muslim husband to give divorce (talaq-ul-sunnat) to his wife at any time without any reason and without advance notice to wife and without presence of wife is arbitrary, anti-shariat, unconstitutional, discriminatory, barbaric and illegal. It further sought directions to the Union to frame laws in the form of detailed step by step guidelines containing checks and balances on the issue of the assumed absolute direction of the Muslim husband to give divorce (talaq-ul-sunnat) to his wife at any time without any reason and without advance notice, without the presence of wife and declaration that the Muslim Marriage is not just a mere contract but it is a status.
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Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The main traditional legal categories are talaq (repudiation), khul (mutual divorce), judicial divorce and oaths. The theory and practice of divorce in the Islamic world have varied according to time and place. In modern times, as personal status (family) laws were codified, they generally remained “within the orbit of Islamic law”, but control over the norms of divorce shifted from traditional jurists to the state.
Talaq is considered in Islam to be a reprehensible means of divorce. The initial declaration of talaq is a revocable repudiation (ṭalāq rajʿah) which does not terminate the marriage. The husband can revoke the repudiation at any time during the waiting period which lasts three full menstrual cycles. The waiting period is intended to give the couple an opportunity for reconciliation, and also a means to ensure that the wife is not pregnant. Resumption of sexual relations automatically retracts the repudiation. The wife retains all her rights during the waiting period. The divorce becomes final when the waiting period expires. Women often entered marriage with substantial capital in the form of mehr and the trousseau provided by their family, which they were not obliged to spend on family expenses, and they frequently loaned money to their husbands.
Talaq types can be classified into talaq al-sunnah, which is thought to be in accordance with Muhammad’s teachings, and talaq al-bid’ah, which are viewed as a bid’ah (innovation) deviations from it. Talaq al-sunnah is further subdivided into talaq al-ahsan, which is the least disapproved form of talaq, and talaq al-hasan. The al-hasan talaq involves a single revocable pronouncement of divorce and sexual abstinence during the waiting period. The al-hasan divorce involves three pronouncements made during the wife’s state of ritual purity with menstrual periods intervening between them, and no intercourse having taken place during that time. Talaq al-bid’ah reflects pre-Islamic divorce customs rather than Quranic principles, and is considered to be a particularly disapproved, though legally valid form of divorce in traditional Sunni jurisprudence.
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Under Tafwid (delegated talaq), the husband can delegate the right of repudiation to his wife. This delegation can be made at the time of drawing up the marriage contract (nikah) or during the marriage, with or without conditions. Many women included such terms in their marriage contracts. Commonly, the contract gave the wife the right to “repudiate herself” if the husband married a second wife. Delegated repudiation is called ṭalāq al-tafawud or tafwid. Khul is a contractual type of divorce that is initiated by the wife. In studies of Mamluk Egypt and the Balkans under Ottoman rule, khul was shown to have been the principal means of divorce. Women employed a number of strategies to force a settlement from their husbands. Some neglected their marital and household duties, making family life impossible for the husband. In some cases the khul contract involved no compensation from the wife, while in other cases women would waive all of their husband’s financial obligations.
A marriage can also be dissolved by means of judicial divorce. Either spouse can petition a qadi (magistrate or judge of a Sharia court, who also exercises extrajudicial functions, such as mediation, guardianship over orphans and minors, and supervision and auditing of public works) to obtain judicial divorce, but they must have compelling grounds for dissolving the marriage. The court starts the process by appointing an arbitrator from each of their families in order to seek a mediated reconciliation. If this effort fails, the court adjudicates the dispute by apportioning fault for the breakdown of the marriage with the associated financial consequences. Moreover, a man who takes an oath not to have sexual intercourse with his wife, which would lead to automatic divorce, is allowed a four-month period to break his oath.
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In the modern era, sharia-based laws were widely replaced by statutes based on European models, and its classical rules were largely retained only in personal status (family) laws. Different explanations have been proposed for this phenomenon. Important changes in family laws took place in the modern era. The laws underwent codification by legislative bodies and were also displaced from their original context into modern legal systems, which generally followed Western practices in court procedure and legal education.
—By Shivam Sharma and India Legal Bureau