family law muslim marriage

7/26/2019 Family Law Muslim Marriage

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A Comparative Study of Talaq in dierent Islamic Countries

A Comparative Study of Talaq in dierentIslamic Countries

cknowledgement

Writing a project is one of the most significant academic challenges I have ever faced.

Though this project has been presented by me but there are many people who remained in

veil, who gave their all support and helped me to complete this project.

First of all I am very grateful to my subject teacher Kamaljeet maam, without the ind

support of whom and help the completion of the project was a herculean tas for me. !e

donated his valuable time from his busy schedule to help me to complete this project and

suggested me from where and how to collect data.

I am very thanful to the librarian who provided me several boos on this topic which proved

beneficial in completing this project.

I acnowledge my friends who gave their valuable and meticulous advice which was very

useful and could not be ignored in writing the project. I also owe special thans to my parents

for their selfless help which was very useful in preparing the project " without whose

support this project wouldnt have been prepared.


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Table of contents

ACKNOWLEDGEMENT

CHAPTERS

1.Introduction

2.Concept of marriage and divorce in Islam

a.Concept of marriage

b.Historical background

c.Islamic perspective and consequences

3. Reforms In Divorce Laws of Muslim States

-Pakistan

-Bangladesh

-India

4. Provisions that have made the Triple Talaq Ineffective or

Impracticable

Conclusion

APPENDICES

Bibliography


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Introduction

Talaq

#mong almost all the nations of anti$uity, divorce was regarded as a natural corollary of

martial rights. %omans, !erbrews, Israelies etc all had divorce in one or the other form.&ven though the provision of divorce was recogni'ed in all religions, Islam is perhaps the

first religion in the world which has e(pressly recogni'ed the termination of marriage by

way of divorce. In &ngland divorce was introduced only hundred years bac. In India

among !indus, it was allowed only by !indu )arriage #ct, *+. -efore the passing of

this #ct divorce was not recogni'ed by !indu aw.

/ivorce among ancient #rabs was easy and of fre$uent occurrence. In fact, this tendency

has even persisted to some e(tent, in Islamic aw in spite of the fact that 0rophet showed

his dislie to it. It was regarded by the 0rophet to be the most hateful before the #lmighty

1od of all permitted things2 for it prevented conjugal happiness and interfered with the

proper bringing up of the children.

#ccording to #meer #li, the reforms of 0rophet )ohammad mared a new departure in

the history of &astern egislations. The 0rophet of Islam is reported to have said 3with

#llah, the most detestable of all things permitted is divorce4, and towards the end of his

life he practically forbade its e(ercise by men without intervention of an arbiter or a

judge. The 5uran 6rdains,47.if ye fear a breach between them twain 8the husband and

the wife9 appoint an arbiter from his fol and an arbiter from her fol. If they desire

amendment, #llah will mae them of one mind4. The 5uran permits divorce partly

because of some countenance to the customs and partly to enable men get rid of an odious

union.


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Initially men had unbridled right to divorce, while women had no such right and they

were at the whims and fancies of men. 0rophet )ohammad restrained this power of

divorce and gave to the women the right of obtaining separation on reasonable grounds.

The 0rophet is reported to have said 3if a woman be prejudiced by a marriage, let it bebroen off.4

Concept of marriage & divorce in Islam

Concept of Marriage in Islam

-efore delving into the debate of divorce under Islam, it is imperative for us to

understand the nature of marriage ordained under Islam so as to form a better perspective

of the concept of divorce. It has been always said that under Islam marriage is a contract,

and lie any other contract it comprises of offer acceptance and consideration, so it can

also be terminated or dissolved lie a contract by the parties to the contract at anytime.

-ut this view is not proper. Tahir )ahmood in his boo said that the general impression

that there is no religious significance or social solemnity attached to a )uslim marriage

and that it is a mere civil contract is not true. The 5uran does not treat marriage as an

ordinary contract. The prophet described niah as his:unnat2 and those who now the

socio; religious significance of:unnat as recogni'ed by the )uslims can well understand

what marriage means to a follower of Islam.

#ccording to #meer #li fear of 1od.< Thus it is said to be halfman. There is indeed a specific purpose for which

)uslim law regard marriage as an agreement, a very special nature. It is meant to accord


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full contractual freedom to the parties to a proposed marriage, and this is indeed a uni$ue

feature of Islamic law.

Historical Background of Divorce

To understand the nature and concept of divorce in Islamic law, a brief account of its

historical bacground is necessary. #mong all the nations of anti$uity, the power of

divorce was regarded as a natural corollary to marital obligation. #mong the pre;

Islamic #rab the power of divorce possessed by the husband was unlimited and

was fre$uently e(ercised without any regard to the marital obligations. They could

divorce their wives at any time, for any reason or even without any reason. They

could give divorce and also revoe the same as many times as they preferred. They could,

moreover, if they were so inclined, swear that they would have no intercourse with

their wives, though still living with them. They could arbitrarily accuse their wives of

adultery, dismiss them, and leave them with such notoriety as would deter other suitors2

while they themselves would go e(empt from any formal responsibility of maintenance.

In pre;Islamic #rabia, divorce was used as an instrument of torture. These social and

moral ills and injustices engaged the attention of the prophet of Islam. Fully conscious of

the evils flowing from divorce, he framed the laws of marriage and divorce in order to

remove these evils.

Islamic Perspective of Divorce

The prophet of Islam was indeed social reformer thining far ahead of his time. !e found

arbitrary divorce practices prevailing among the pagans and ?ewish;@hristian #rabs.

/isgusted he set out to reform them. It was impossible, however, under the e(isting

condition of the society to abolish the custom entirely. The prophet has to mould the mind

of an uncultured and semi;barbarous community to a higher development. #ccordingly he

allowed the e(ercise of power of divorce under certain conditions. !e permitted the

parties to divorce the parties at three distinct and separate time periods within which they

might endeavor to become reconciled2 but should all attempt to reconcile prove

unsuccessful2 then in the third period the final separation become effective. The )uslim

law of divorce is the logical conse$uence of the status of marriage. #s it regards it as an

#$d or a contract, it confers on both the parties to the contract the power of dissolving the


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tie or relationship under certain specified conditions. The Islamic law did not tae away

the customary right of the husband to divorce his wife unilaterally, but it imposed

numerous restrictions, on the e(ercise of this right. # )uslim man cannot divorce his

wife and tae her bac as he pleases. Though permissible in law, divorce is notfavored in Islam as prevents conjugal happiness and interfered with the proper up;

bringing of the children. 0rophet told his peopleA

3Divorce is most detestable in the sight of God; abstain from it.

!e also saidA

"Divorce shakes the throne of God."

The permission therefore, in the 5uran though it gave a certain countenance to the old

custom has to read with light of lawgivers own words when it is borne in mind how

intimately law and religion are connected in Islamic system, it will be easy to understand

the bearing of words of the institution of divorce.

Consequences arising from Talaq

*. Marriage -0arties are entitled to contract another marriage. If the marriage was

consummated the wife has to wait until the period of iddat is over, otherwise, she

may remarry immediately. If the marriage was consummated and if the husband

had four wives at the time of divorce, he can tae another wife after the period of

iddat.

B. Dower -/ower becomes payable immediately if the marriage was consummated,

otherwise, the wife is entitled to half of the amount specified in dower. If no

amount is specified, she is entitled to C articles of dress. Where the marriage is

dissolved due to apostasy of the wife, she is entitled to whole of the dower if the

marriage has been consummated.

C. Ineritance - )utual rights of inheritance cease after the divorce becomes

irrevocable.


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D. Coa!itation - @ohabitation becomes unlawful after the divorce has become

irrevocable and children from such intercourse are illegitimate and cannot be

legitimated by acnowledgment.

. "emarriage - %emarriage between the divorced couple is not possible until

the wife observes iddat

after iddat she lawfully marries another man

this intervening marriage is consummated

the new husband pronounces divorce or dies

the wife again observes iddat

# marriage done without the fulfillment of the above is irregular, not void. -ut mere

cohabitation after an irrevocable divorce is void.

E. Maintenance -The wife becomes entitled to maintenance during the period of

iddat but not during the iddat of death.

Conditions of #alidit$ of Talaq

*. The husband should be in proper state of mind. If a person is given to epileptic

fits, and gives talaq in the state of fit, it will be invalid. If a person who is not used

to into(icants, taes some into(icants not nowing its effect, or as a remedy for

some illness, and loses his balance of mind, a divorce given by him will have no

meaning.

B. The husband should be an adult. /ivorce given by a minor husband is invalid.

C. /ivorce given under compulsion has no validity.

D. The language used in giving a divorce is important. It should be either e(plicit or

should imply the intention to give divorce. The mere act on the part of the husband

will not constitute divorce by itself. If a person gives the )ahr to his wife, all her


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personal belongings and sends her to her parents home without uttering the words

of tala$, it will not be a divorce.

3.REFR!" I# $I%RCE '" F !("I!

"T TE"

The position of Ibn Taimiyah* on this issue has influenced most of the legislation in a

majority of the )uslim states regarding personal laws since the beginning of the twentieth

century. &gypt was the first country to deviate from the position of jamhur 8the majority of

)uslim ?urists9 in *+B+, when it provided that a divorce accompanied by a number e(pressly

or implied, shall count only as a single divorce and such a divorce is revocable e(cept when

three tala$s are given, one in each tuhr.B The :udanese law of *+C provides that

pronouncement of all divorces by the husband is revocable e(cept the third one, along with a

divorce before consummation of marriage, and a divorce for consideration. CThe :yrian law

of *+C combined the provisions of the &gyptian and the :udanese laws by providing that if a

divorce is coupled with a number, e(pressly or implied, not more than one divorce shall tae

place and every divorce shall be revocable e(cept a third divorce, a divorce before

consummation, and a divorce with consideration, and in this law such a divorce would be

considered irrevocable.D )orocco, Ira$,E ?ordan, #fghanistan,G ibya,+ Kuwait,*H and

1

2 Tuhr in Arabic means the period of purit! bet"een menstruations#

3 Artic$e 3% &hariah 'ircu$ar (o# 41)1*35 of &udan#

4 Artic$e *2 of +a" (o# 34 of the +a" of Persona$ &tatus of &ria of 1*53#

5 Artic$e 51 ,oo- T"o of the Mudawwanaof 1*57 and 1*58 of .orocco#

6 Artic$e 37/20 of +a" (o# 188 of 1*5* The +a" of Persona$ &tatus of ra#


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emen,** adopted similar laws in *+J*+G, *++, *+E, *+, *+GD, *+GD, and *++B,

respectively. -esides these, many other )uslim countries have also adopted Ibn Taimiyahs

opinion as the guideline for their personal laws on this topic. These include the >nited #rab

&mirates,*B 5atar*C and -ahrain being the latest countries, respectively, to embrace Ibn

Taimiyahs views on triple tala$. To this list may be added 0aistan and -angladesh. :ection of the )F6 *+E*, e(plained below, seems to have implied the abolishment of triple tala$

because the procedure contained therein is not applicable to it. Thus, fifteen )uslim states

have either e(plicitly or implied the adoption of Ibn Taimiyahs position. Tunisian law has

gone one step further. >nder #rticle CH of the Tunisian @ode of 0ersonal :tatus, *+E,

divorce pronounced outside a court of law will not have any validity whatsoever, and under

#rticle CB, no divorce shall be decreed e(cept after the court has made an overall in$uiry into

the causes of the rift and failed to bring about a reconciliation. In #lgerian law 3divorce may

only be established by a courtL judgment preceded by an attempt at reconciliation by the

judge which shall not e(ceed a period of three months.4*D:imilarly, :ri anas )arriage and

/ivorce 8)uslim9 #ct, *+*, as amended up to BHHE, provides that a husband intending to

divorce his wife 3shall give notice of his intention to the 5au'i sic. 5adiL4 who shall

7 Artic$e * of +a" (o# 61 of 1*76 The +a" of Persona$ &tatus of ordan#

8 &ections 145 and 146 of the 'ii$ +a" of 4 anuar 1*77 of Afghanistan#

* &ection 33/d0 of +a" (o#1 of 1*84% 'oncerning the &pecic Proisions on

.arriage and iorce and their 'onseuences#

1 9or :u"aiti $a"% see section 1* of +a" no# 51 of 1*84 regarding a$;Ah"a$ a$;

&ha-hsiah! /Persona$ +a"0% http))"""#gcc;

$ega$#org).o

countr?1@+a"Tree&ection?1386#/$ast accessed an 31% 2150#

11 &ee% Artic$e 64 of the epub$ican ecree +a" (o# 2 of 1**2 'oncerning

Persona$ &tatus of Bemen#

12 9or the CAD% see% section 13/10 of Eanun a$;Ah"a$ a$;&ha-hsia /Persona$+a"0 of CAD (o# 28 of 25% % http))"""#gcc;

$ega$#org).o

countr?2@+a"Tree&ection?617 # /$ast accessed an 31% 2150

13 &ee% section 18 of the Eanun a$;Csrah /9ami$ +a"0 of Eatar% (o# 22 of 26%

http))"""#gcc;$ega$#org) .o

countr?2@+a"Tree&ection?617#/$ast accessed an 31% 2150

14 &ee Artic$e 4* of +a" (o# 84; of * une 1*84% 'omprising the 9ami$ +a" ofA$geria#


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attempt reconciliation between the spouses 3with the help of the relatives of the parties and of

the elders and other influential )uslims of the area.4 !owever, if after thirty days of giving

notice to the 5adi, attempts at reconciling the spouses remain fruitless, 3the husband, if he

desires to proceed with the divorce, shall pronounce the tala sic. tala$L in the presence of

the 5adi and two witnesses4

*

>nder the family law of the )alaysian state of :arawa, ahusband who desires to divorce his wife has to re$uest a court to loo into the causes of

proposed divorce and advise the husband not to proceed with it. !owever, if the differences

are irreconcilable, then the husband may pronounce one divorce before the court. The

procedure laid down in the laws of #lgeria, :ri ana, and the )alaysian state of :arawa,

seem to be in harmony with the procedure of tala$ in Islamic law.

T%&%' %(D TH) M*+&IM ,%MI& &%. /"DI(%(C)0 1231 I( P%4I+T%(

The *+E* )uslim Family aw 6rdinance is the most significant but also controversial reform

law in 0aistan. The same law was also inherited by -angladesh. -acground of the )F6

is rather interesting. In *+, )uhammad #li -ogra, the then 0rime )inister of 0aistan,

married his secretary while still legally married to his first wife. Thereafter, the #ll 0aistan

Womens #ssociation 8#0W#9, an elitist womens organi'ation, began an organi'ed agitation

throughout the country.6n #ugustD,*+,the government of 0aistan announced the

formation of a seven;member @ommission on )arriage and Family aws, consisting of /r

Khalifa :huja;ud;/in 80resident9, /r Khalifa #bdul !aim 8)ember;:ecretary9, )aulana

&htesham;ul;!a$ Thanvi, )r &nayet;ur;%ahman, -egum :hahnawa', -egum #nwar 1.

#hmad, and -egum :hamsunnahar )ahmood.#fter the demise of the incumbent president,

)ian #bdur %asheed, a former @hief ?ustice of 0aistan, was appointed as its new president

on 6ctober B, *+. The commission was mandated to report on 3the proper registration of

marriages and divorces, the right to divorce e(ercisable by either partner through a court or

by other judicial means, maintenance and the establishment of special courts to deal

e(peditiously with cases affecting womens rights.4 The commission published its report on

?une BH, *+E, while the dissenting note of )aulana Thanvi was published separately on

#ugust CH, *+E. The commissions report invited severe criticism from the ulama. # detailed

discussion of the commissions report is beyond the scope of this wor

The commission recommended the enactment of laws providing that three divorces in one

session would amount to one pronouncement, and for a divorce to be effective, two further

pronouncements in two successive tuhrs would be necessary. )oreover, they added that the

legislation should provide that no person would be able to pronounce a divorce without

obtaining an order to that effect from a matrimonial and family court. )oulana Thanavi

15 &ee .arriage and iorce /.us$im0 Act% 1*51 as amended ti$$ 26 F'ap# 134G

section 27 and u$es 1 @ 2 &econd &chedu$e# Ho"eer% the $a" does not mention

"hether ta$a pronounced b a husband "ithout fo$$o"ing this procedure is a$id

or not# &era


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rejected outright the commissions recommendations, by stating that, 3tLo put a restriction on

the e(ercise of this right by maing it ineffective if tala$ is not registered or not authori'ed by

the )atrimonial and Family aws @ourt, not only amounts to tampering with the injunctions

of the faith but also putting obstacles in the way of dissolution even when it becomes

necessary and desirable.4 -ecause of the intense hostility of the Mulama to the commissionsrecommendations relating to divorce, the framers of the )F6 ignored the idea of court

intervention in divorce. The provisions of section of the )F6 relating to tala$ are

reproduced herein belowA

*. #ny man who wishes to divorce his wife shall, as soon as may be after the pronouncement

of tala$ in any form whatsoever, give the @hairman notice in writing of his having done so,

and shall supply a copy thereof to the wife.

B. Whoever contravenes the provisions of sub;section 8*9 shall be punishable with simple

imprisonment for a term which may e(tend to one year or with fine which may e(tend to five

thousand rupees or both.

C. :ave as provided in sub;section 89, a tala$ unless revoed earlier, e(pressly or otherwise,

shall not be effective until the e(piration of ninety days from the day on which notice under

sub;section 8*9 is delivered to the @hairman.

D. Within thirty days of the receipt of notice under sub;section 8*9, the @hairman shall

constitute an #rbitration @ouncil for the purpose of bringing about the reconciliation between

the parties, and the #rbitration @ouncil shall tae all steps necessary to bring about such

reconciliation.

. If the wife be pregnant at the time tala$ is pronounced, tala$ shall not be effective until the

period mentioned in sub;section 8C9 or the pregnancy, whichever be later, ends.

E. =othing shall debar a wife whose marriage has been terminated by tala$ effective under

this section from marrying the same husband, without an intervening marriage with a third

person, unless such termination is for the third time, so effective.

The most manifest implications of section areA First, it refers the issue of divorce to an

administrative body for bringing about a reconciliation2 second, tala$ is not effective for

ninety days, during which reconciliation shall be attempted between the parties.>nfortunately, the reconciliation effort does not precede the pronouncement of tala$, but

follows it. Third, although subsection 8*9 mentions any form of tala$ 83tala$ in any form

whatsoever49 which in turn, obviously includes ihsan,*E hasan,*as well as tala$ al;bidMat

16 n the ihsan form% the husband pronounces on$ one ta$a "hi$e his "ife is in a

state of purit during "hich time he has not had se=ua$ intercourse "ith her and

does not reo-e it unti$ the end of the third purit#

17 n the hasan form% the husband pronounces one ta$a in a tuhr% he must not

pronounce ta$a for a second time unti$ the ne=t tuhr# He can do so sti$$ $ater atantime during the subsistence of the marriage% sa after three ears% and


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8triple tala$9. -ut under Islamic law, as discussed above, the procedure for reconciliation is

only possible if only either one or twoNand not the third oneNpronouncements have been

made.Fourthly, section can be construed to imply abolishment of tala$ al;bidMat because it

allows remarriage between the two parties after the divorce without an intervening marriage

or halala, which, under section , becomes imperative following the third suchpronouncement.

The )F6 is indeed a very vague piece of legislation as far as its provisions of tala$ and

share of the grandchild are concerned. The ulama launched a scathing attac on these

provisions in particular.

The main criticism of section is as followsA

First, under Islamic law, a third divorce becomes effective as soon as it is pronounced but

under section , a third divorce will be effective only after ninety days have elapsed from the

date of the receipt of its notice by the chairman, and not from the date of pronouncement of

the tala$.

:econdly, under Islamic law, Middat 8waiting period9 is counted from the time of the

pronouncement but, under section it is counted from the time the notice is received by the

chairman. Furthermore, problems arise when no notice is sent to the chairman.

Thirdly, under Islamic law, divorce of a couple who have not yet consummated their marriage

becomes effective immediately and no Middat is re$uired for the woman. -ut, under the

)F6, every divorce, whether or not the marriage is consummated, will be effective only

after the e(piry of ninety days following the receipt of its notice, by the chairman.

Fourthly, according to section , the Middat of a woman who is not pregnant is over ninety

days but under Islamic law, her Middat is three monthly courses.

Fifthly, under section , the Middat of a pregnant woman is the end of pregnancy or ninety

days, whichever is later. #ccording to the 5uran, it ends with the end of pregnancy, a period

which may be less than ninety days.

Finally, under section , effectiveness of tala$ is dependent on the notice of tala$ to the

chairman and reconciliatory efforts by him. This has no basis in Islamic law. In #llah %aha

v. The Federation of 0aistan, the Federal :hariat @ourt in 0aistan had declared subsections

8C9 and 89 of section , as repugnant to the injunctions of Islam. The federal government had

appealed against that decision to the :hariat #ppellate -ench of the :upreme @ourt where the

case is pending at the writing of this wor. :ection of the )F6 has been the subject of

fierce debates in the academic circles as well as amongst the superior judiciary in 0aistan. It

"heneer he does so% the ta$a "i$$ be counted as the second ta$a# Khen the

husband has pronounced ta$a for the second time in a tuhr% he must not

pronounce ta$a for a third time before the ne=t tuhr% but he can do so sti$$ $ater

at antime during the subsistence of the marriage and "heneer he does so% thepronouncement "i$$ be counted as the third ta$a#


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is pointed out by some authors that because of the procedure laid down in section , 0aistani

law abolishes triple tala$ or tala$ al;bidMat, in one session, which seems to be the correct

view.

I(T)"P")T%TI/( /, +)CTI/( 5 /, TH) M,&/ I( B%(6&%D)+H

-angladesh, the former &ast 0aistan, inherited the )F6, *+E* before gaining its

independence in *+*. # view that the sending of notice under section 8*9 is not essential

seems to have emerged in -angladesh in #bdul #'i' v. %a'iaKhatoon, *Gwhich was relied

upon later by the then erstwhile ahore !igh @ourt in )a$bool ?an v. #rshad !assan. *+, in

which the court observed the followingA

I am also in respectful agreement with the specific observation in the /acca !igh @ourtL

case of #bdul #'i' that if tala$ is otherwise valid 8i.e., under the personal law of the partiesthe tala$ is valid9 it would become effective under that law2 but the only clog therein is that

its effectiveness would be postponed for ninety days under subsection 8C9 of section of the

6rdinance.

In other words, the court indicated that failure to give notice of tala$ is just a formality and

that tala$ will be effective after ninety days. !owever, the decision is ambiguous and should

be read with caution. >nder section 8D9, it is obligatory on the chairman to constitute an

arbitration council for bringing about a reconciliation between the parties. !owever, the

effects of the failure of the chairman to constitute the council, the councils failure to attempt

reconciliation, or the failure of either of the affected parties to participate in the proceedingsof the council are unclear since 8D9 is silent on these issues. In #bdul #'i' v. %e'ia Khatoon,

it was argued on behalf of the wife that unless an arbitration council was duly constituted and

the council failed to bring about reconciliation between the parties, a divorce could not be

legally effective under section of the ordinance. The court held that if the chairman fails to

constitute an arbitration council or, even after its constitution, the council fails to tae

necessary steps for bringing about a reconciliation, the tala$, if valid otherwise, will be

effective on the e(piry of ninety days from the date of receipt of the notice of tala$ by the

@hairman of the >nion @ouncil. In #bdus :obhan v. )d. #bdul 1hani, the respondent

accused :ahitannessa, his wife, of bigamy. !e alleged that she was legally married to himand that #bdus :obhan :arar married her during the subsistence of this marriage. #bdus

:obhans counsel argued that his client had married :ahitannessa after she e(ercised her

delegated right to divorce and that the arbitration council had approved the divorce. The court

held that nothing is mentioned in section as to what will happen if the chairman does not

constitute an arbitration council or if the council fails to tae the necessary steps. The court,

therefore, observed the followingA

18 1*6*G +' 586#

1* P+ 1*75 +ah# 147#


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6nce written notice of the pronouncement of a tala$ in terms of sub;section 8*9 is delivered to

the @hairman, the tala$, if otherwise valid, will be effective on the e(piry of ninety days of

the delivery of such notice .... Thus, so far as tala$s concerned the #rbitration @ouncil has no

function e(cept to tae steps to bring about reconciliation between the parties. -etween this

the #rbitration @ouncil has nothing to do in this matter.

>nfortunately, the same year in which the #bdus :obhan case was decided, *+C, the high

court division in )d. Kutubuddin ?aigirdar v. =urjahan -egum, ruled that sending a notice to

the chairman and the opposite party is aL pre;re$uisite to the legal validity of a divorce. This

position seems to have been settled since :irajul Islam v. !elana -egum.In that case, no

notice of tala$ was given by the husband to either the chairman of the concerned >nion

@ouncil or the wife. In connection with payment of the wifes deferred dower, a $uestion

arose whether the tala$ was effective. The husbands counsel argued that since no notice was

served by the husband, the tala$ pronounced by him had not become effective and the wife

was not entitled to the deferred dower. !owever, the husband had sworn in an affidavit beforethe magistrate pronouncing tala$ and had served a copy of the affidavit upon the =iah

%egistrar under section E of the )uslim )arriage and /ivorce 8%egistration9 #ct, *+D. The

court held that 3mere non;service of notice upon the @hairman of the >nion @ouncil under

section of the )uslim Family aw 6rdinance cannot render the divorce ineffective if the

conduct of the husband appears to be so.4 The court relied on 0aistani cases @huhar v.

1hulam Fatima 8discussed above9, and )rs. 0arveen @haudhry v. Eth :enior @ivil ?udge,

Karachi,and held that the divorce was valid and effective and the wife was entitled to the

entire amount of dower. :ince the above were all high court decisions in -angladesh, they

have clarified the position that in -angladesh, a failure to give notice of tala$ to the @hairman

of the >nion @ouncil does not invalidate tala$ if the conduct of the husband indicated that he

had indeed divorced his wife. The -angladeshi case law is also very good in answering the

$uestion about the failure of the chairman to constitute an arbitration council as well as the

failure of the council to tae the necessary steps.

T"IP&) T%&%' %(D TH) I(DI%( C%+) &%.

In light of the verdicts given by some Indian !igh @ourts, tala$ al;bidMat 8as it is spelled inIndia9 is both invalid and ineffective if pronounced by the husband. In )arium v. )d. :hamsi

#lam,BHthe husband had pronounced triple tala$ on his wife and when he repented his action,

she filed a suit for a declaration that she had been divorced by #lam. The #llahabad !igh

@ourt held that 3aL divorce pronounced thrice in one breath by a )uslim husband would

have no effect in law, if it was given without deliberation and without any intention of

affecting an irrevocable divorce2 such divorce is a form of tal$;e;ahsan, and thus is revocable

by the husband before the iddat e(pires.4 The court ruled that tala$ pronounced by #lam was

revoed by him within the iddat period. Therefore, the marriage between the couple was

2 A 1*7* A$$# 257#


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subsisting and the wife was denied the relief she had ased for. The #llahabad !igh @ourt,

thus, had based its decision on the opinion of Ibn Taimiyah, which in the subcontinent, is

endorsed by the #hl al;hadith. In %ahmat >llah v. :tate of >.0.,B*the ucnow -ench of the

#llahabad !igh @ourt declared the triple tala$ invalid. In this case, a notice was issued to

%ahmat >llah, a landowner, under the >.0. Imposition of @eiling on and !olding8#mendment9 #ct, *+B. !e pleaded that since he had divorced his wife Khatoon =isa, the

land belonging to her was mistaenly added to his assets. -oth Khatoon =isa and %ahmat

>llah produced a document to prove the divorce. >nder the #ct, a married woman cannot

hold separate property2 but a judicially separated wife or a divorcee can. The !igh @ourt had

to decide whether the plea of divorce was genuine or resorted to for defrauding the state, and

whether a woman who is divorced according to the rules of her personal law is entitled to the

same benefits as a woman who is separated or divorced through a court decree. The court

ruled that the mode of triple divorce, giving unbridled power to the husband to divorce his

wife at will, cannot be deemed operative as it has the effect of perpetuating discrimination on

the grounds of gender, i.e., male authoritarianism. The court further opined that since the

practice of triple tala$ denigrates women, it is in violation of the Indian @onstitution. This

decision is very strange because it declared a marriage dissolved twenty;five years earlier to

be subsisting even against the wishes of the parties. )oreover, the issue of triple tala$ was

not an issue before the court and the opinion of the court should be treated only as obiter

dicta. #lso, it is againstArticle 26 of the Constitution, which protects the personal law of each

religious community in India2 and, the courts interpretation of Islamic law is seriously

flawed because it did not discuss the opinions of )uslim jurists on the issue. Finally, being a

matter of personal law, the court should have avoided the imposition of Ibn Taimiyahs

opinion, if the parties concerned wanted to be governed by the opinions of the !anafi fu$ha.The court had, in fact, attempted to force a reunion between the e(;husband and his divorced

wife without the free consent of either. In )asroor #hmed v. :tate, the husband claimed

restitution of conjugal rights against the wife who in turn filed proceedings for dowry

harassment. While these cases were pending in the court, the couple decided to be reunited.

!owever, since the estranged husband had, reportedly, triply divorced his wife, the local

Mulama 8religious scholars9 opined that the reunion was illegal and se(ual relations resumed

by the two amounted to 'ina. To circumvent this, the husband entered into a new contract of

marriage with the wife. -ut, the Mulama insisted that renewal of marriage, without an

intervening marriage 8halala9 with a third person, was of no avail and their 'ina verdict

remained in force. )eanwhile, relations between the husband and the wife worsened and the

wife filed a FI% against the husband accusing him of marital rape. They subse$uently

reconciled and the husband applied to the court for $uashment of the FI%. -adar /urre'

#hmad, ?., of /elhi !igh @ourt observed that harsh abruptness of triple tala$ has brought

about e(treme misery to divorced women and even men who are left with no choice to undo

the wrong or any scope to bring about reconciliation. !e ruled that a triple tala$ should be

regarded as one revocable tala$. #nother novel Indian concept regarding triple tala$ is that

tala$ must be 3for a reasonable cause.4 This was first held in ?iauddin #hmed v. #nwara

21 Krit Petition (o# 45 of 1**3#


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-egumBBby the 1auhati !igh @ourt. Two other grounds were also added by the court. These

were that tala$ must be preceded by 3attempts at reconciliation4 by the nominees of the

spouses, and it 3may be affected4 if the said attempts fail.BCIn this case, the wife was thrown

out of her matrimonial home by her husband and she applied for maintenance. The husband

argued that he had divorced her. The first $uestion that the court had to answer was whetherthere had been a valid tala$ by the husband. The court held that the tala$ allegedly given by

the husband was invalid under Islamic law and the wife was entitled to maintenance. ?iauddin

was a single bench decision but was subse$uently endorsed by many Indian !igh @ourts,as

well as the :upreme @ourt.The prevailing case law in India, therefore, is that tala$ given

without a valid cause, which is not preceded by an attempt at reconciliation between the

nominees of the spouses, is invalid. !owever, such reforms should be brought by legislators

and not through judicial law;maing or judicial activism. The Indian courts have attempted a

rewriting of Islamic law unnown to the overwhelming majority of )uslim jurists.

Provisions tat ave made te Triple Talaq Ineffective or Impractica!le

The 0rovisions of many )uslim countries either abolished the triple Tala$ or made this

formula ineffective or unpracticable. 1iven below are the provisions of some muslim

countries which changed their law pertaining to triple talas according to the need of time.

)6PT 7

The two laws on personal status8*+BH;B+9 as re;amended in *+G together with the old

legislation on succession and wa$fs of *+DC;*+EH constitute the present &gyptian code of

personal law. This code provides that a tala$ accompanied by a number, e(pressly or

impliedly, shall not be effective e(cept as a single divorce. It further provides that symbolic

e(pressions of Tala$ i.e. words which may or may not bear the implication of divorce shall

not effect a divorce unless the husband actually intended it. )oreover it declares that every

Tala$ shall be revocable, e(cept a third tala$, that, given before consummation O, that for a

consideration, and that e(pressly described as irrevocable.

I"%' 7

#ccording to Ira$i law no more that one divorce shall tae place at a time. It also

derecogni'es the tala$s not actually intended to dissolve the marriage. Further, it re$uires the

special :haria formula for pronouncement of a Tala$ and for its simultaneous confirmation by

the court or subse$uent registration. The notable provisions on this subject given in the code

of 0ersonal :tatutes are as under.

*;The husband can divorce his wife thrice2

22 /1*810 1 L+ 358

23


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B;Where a Tala$ is coupled with a number, e(press or implied, not more than one divorce

shall tae place2

C;If a woman is divorced thrice on three separate occasions by her husband,it will result into

baainunah ubraa8great parting9.

M/"/CC/ 8

The )oroccan @ode of 0ersonal :tatus enacted in *+;G has also made the provision for

ineffectiveness of unintended divorces and abolition of triple tala$s. It also provides for

registration of divorces. The code says about the triple Tala$ that a Tala$ pronounced with a

number whether in words or by sign or in writing shall effect only one divorce. It also

provides, that a Tala$ suspended till on the performance of or abstention from some act shall

not be operative.

(/"TH )M)( 8

=otably :tatutory provisions in =orth emen relating to divorce are ineefectiveness of Tala$

under the effect of into(ication and abolition of triple Tala$. Family law *+G of =orth

emen85anun al;>srah9 provides about triple divorce as underA

M# Tala$ accompanied by a number shall effect a single divorce

+*D%( 8

aw on Tala$, )arital /isputed and 1ifts *+C made the unintended divorces ineffective and

also derecognied the triple Tala$. :udanese aw on Tala$ provides that a formula of divorce

coupled with a number e(pressly or impliedly, shall effect only one divorce. #s per this rule,

all divorces shall be revocable by the husband, e(cept a third divorce, divorce before

consummation of marriage and a divorce for consideration.


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C/(C&*+I/(

The )F6, *+E*, has abolished triple tala$ as the procedure laid down in section is largely

applicable to one or two pronouncements. Furthermore, some subsections of section are in

clear contravention of Islamic law. The :upreme @ourt of 0aistan has also not been

consistent in its interpretation of section , especially in the matter concerning failure to give

notice of tala$ to the @hairman of the >nion @ouncil. @ourts in -angladesh have also beeninconsistent about the issue of non;service of the notice of tala$. iewise, some Indian !igh

@ourts have ruled that tala$;e bidMi or tala$;e;bidMat is not valid if e(ercised by a husband.

)oreover, Indian courts have held that tala$ without a 3just cause,4 which is not preceded by

an 3attempt at reconciliation4 between the spouses, is invalid. :uch rulings are very

controversial when viewed from the standpoint of Islamic law. !owever, some )uslim states

such as &gypt, :yria, ?ordan, Ira$, :udan, )orocco, Kuwait, emen, #fghanistan, ibya,

Kuwait, 5atar, -ahrain, and the >nited #rab &mirates, have specifically adopted Ibn

Taimiyahs opinion regarding the issue of a triple tala$. :ection of the )F6 seems to have

abolished triple tala$ and thereby Ibn Taimiyahs position seems to have been, by implication,adopted both in 0aistan and -angladesh. It is important to remember that once such a law

8i.e., three pronouncements of tala$ in one sitting amount to, in fact, one or two only9 is

passed by the relevant legislature of a )uslim state, then it becomes binding even for those

scholars who had disagreed with it before the promulgation of such a law. The reason being

that under the Islamic theory of legislation only the state has monopoly over new legislation

through 3fresh ijtihad4 and not individual scholars who must follow such legislation.


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)I)I*R +,-

*9 :inha, %.K.,Muslim Law, Eht edn, @entral aw #gency, #llahabad, BHHE.

B9 /iwan, 0aras ,Muslim Law in Modern India, #llahabad aw #gency, #llahabad,

*++*C9 Kusum, Family Law Lectures, Family Law I, Cd edn., e(is=e(is -utterworths

Wadhwa =agpur, =ew /elhi, BH**

family law muslim marriage

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