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Talaq-ul-sunnat

August 20, 2024

This article on Talaq ul sunnat was written by Smaranika Sen. It exhaustively deals with the concept of talaq ul sunnat. The article further discusses the types of talaq-ul-sunnat. It also gives a brief idea regarding the concept of talaq and its types. It also states the legal perspective of talaq and talaq-ul-sunnat in current times.

Introduction

Marriage is a union of two people. As India is a diverse country, we have various types of laws relating to marriage in different religions, upholding one’s traditions and customs. The Special Marriage Act, 1954 acts as a special law that one can follow if one is reluctant to abide by the customary laws. This makes it evident that a marriage solemnised between a couple in India is given legal recognition. However, what should one do if there is trouble in paradise? When two people in a marriage cannot live together or fail to continue their marriage, they want to dissolve it, they opt for divorce. There are various customary laws that one can follow to dissolve their marriage.

In the case of Muslims, there are uncodified laws that have originated from various schools of thought, customs, traditions, precedents, etc., that deal with the dissolution of marriage, i.e., talaq. In the case of Muslims, one can either follow customary law or opt for divorce via court. Under Section 2 of the Dissolution of Muslim Marriage Act, 1939, nine grounds have been provided to a married Muslim woman for dissolution of marriage. Through this article, we will discuss the concept of talaq and exhaustively discuss Talaq-ul-Sunnat.

Concept of Talaq

In a literal sense, the term “talaq” denotes release. In Muslim law, the term “talaq” is accustomed to divorce. Talaq is often described as a unilateral form of divorce. It is so because here the husband can end his conjugal life, i.e., talaq, without obtaining any consent from his wife. The consent or wish of the wife is never taken into consideration while giving talaq. In talaq-ul-sunnat, the talaq becomes final and absolute when it is given for the third time. For the first two times, there lies an opportunity for the husband to take back the wife.

Once the husband gives talaq to the wife, under Muslim law, the divorced woman has to serve a waiting period of approximately three lunar months or three menstruating months. This waiting period is termed “iddah” or “iddat”. During this period, the divorced woman is barred from remarrying. The main purpose of this waiting period is to check whether such divorced women have been pregnant or not from their previous marriage. It is also believed that the waiting period is observed by the divorced woman to deal with her emotions.

Different kinds of Talaq

Under Muslim law, there are different kinds of talaq; let us have a brief idea about them.

Talaq by husband

Talaq-ul-sunnat: This kind of divorce is observed to be given by the husband. This form of divorce follows the traditions and prophecy of the Prophet. This talaq has been subdivided into two parts:-

Talaq Ahsan: In this form of talaq, the wife has to serve the period of iddat about three months of menstrual cycles. In this form of talaq, the words ‘talaq’ have to be pronounced only once.
Talaq-i-Hasan: In this form of talaq, the husband is required to pronounce the term talaq in three successive months of the menstrual cycle of the wife.

Talaq-ul-biddat: It is a disapproved form of divorce. It is referred to as the triple talaq or an irrevocable form of divorce. Only the Sunni sect of Islam has been observed to recognise this form of talaq.
Ila: In this form of divorce, the husband does not engage in any sexual activities with his wife for a continuous period of four months, which denotes talaq, and after the end of such period, the wife has to serve the iddat period.
Zihar: In this form of divorce, the husband is observed to compare his wife with another woman, and if such woman lies in a prohibited degree of relationship and simultaneously does not consummate the marriage, the wife can seek judicial remedies. However, the divorce can be stopped if the husband performs penance.

Talaq by wife

Talaq-i-tafweez: In this form of divorce, the wife gets delegated power to get a divorce from her husband. Here, an agreement is made between the wife and the husband where the husband agrees to give his wife the power to get a divorce from him.
Lian: This form of divorce is observed when a husband brings false allegations against his wife on the grounds of adultery. Then the wife can sue and obtain a divorce from him.

Talaq by mutual consent

Khula: This form of divorce is initiated by the wife. In this form of divorce, the wife agrees to return mahr or a portion of it, as mutually decided between them.
Mubarat: In this form of divorce, both the husband and wife mutually agree to get separated from each other. However, this form of talaq is irrevocable.

Talaq-ul-sunnat

Analysis

Talaq-ul-sunnat is also known as talaq-ul-raje. This form of divorce is given by the husband to the wife. For centuries, it has been observed that Talaq-ul-sunnat has been practiced according to the dictates of the Prophet. This form of divorce is also based upon the Prophet’s Sunna and has been in practice since the time of the Prophet. This form of divorce is revocable and thereby the chances of reconciliation after giving talaq-ul-sunnat are quite higher. However, the husband can revoke the pronunciation of talaq during the time of iddat served to his wife. Even if the husband consummates during the period of iddat with his wife, the divorce stands void.

Therefore, we can observe that talaq-ul-sunnat is a type of divorce that does not immediately repudiate or end the marriage permanently. It gives a time when the husband can rethink his decision and act accordingly. This form of divorce is recognised under Muslim law. Talaq-ul-sunnat is further subdivided into two categories. The categories are as follows:

Talaq Ahsan

Talaq Ahsan is considered to be the most acceptable and appropriate form of talaq under the Muslim law of divorce. It is so because there is a high chance of reconciliation even after the husband initiates the process of talaq-ul-sunnat. In this type of divorce, the husband can revoke the talaq during the period of iddat observed by his wife. In talaq ahsan, a single pronouncement of divorce can take place between the time frame of two menstrual cycles for his wife or at such a time where there is no menstruation taking place. It is to be kept in mind that this rule is only followed in the case of the oral pronunciation of talaq. Such a rule is not applicable in the case of written talaq applications. Moreover, if the husband and wife stay away from each other, this rule does not apply.

Procedure of Talaq Ahsan

To get talaq under talaq-ul-sunnat, the husband is required to follow certain obligations. Such obligations are:

There shall be no consummation between the husband and the wife after the pronouncement of divorce; if any such consummation takes place, the divorce will be revoked.
Even during the period of iddat, if the husband consummates with his wife, the divorce is revoked.

In the case of Chandbi Ex vs. Bandesha (1960), it was observed by the Hon’ble Bombay High Court that during the period of iddat, the pronouncement of ‘talaq’ by the husband is revocable. This form of pronunciation can be done by the husband either in words or in writing. Revocation can also be in the implied form, i.e., when the husband cohabits with the wife during the period of iddat. However, once the period of iddat has been completed, the talaq becomes irrevocable.

Talaq Hasan

This is a legal form of talaq, which is also widely accepted under Muslim law and recognised by Muslims. In this form of divorce, the husband is required to pronounce talaq during the period of his wife’s tuhr which is the period during which the wife is not menstruating. However, if the wife is not menstruating, then the husband has to pronounce talaq successively three times after the end of thirty days.

Procedure of Talaq Hasan

The obligations that are required to be followed by the husband during talaq hasan are as follows:

The first pronouncement of divorce by the husband must be expressed in words. Such pronunciation should be made only during the time of the wife.
After the pronunciation of divorce for the second time, the husband is barred from having any sexual intercourse with the wife when she is not menstruating.
Any form of cohabitation or consummation with the wife during the period of purity observed by the wife will revoke the divorce.

If there has been no consummation and the wife enters the third month of purity, eventually the husband pronounces talaq for the third time, and the marriage stands repudiated irrespective of the fact that the wife has observed the period of iddat or not. The talaq hasan is irrevocable after its third pronunciation.

Latest developments from the legal perspective

As reported in The Hindu, recently, two women had filed a plea in the Delhi High Court against talaq-ul-sunnat. One woman contended that there was a misuse of this form of talaq by husbands and thereby it was heavily criticised by her. On such grounds, the woman wanted talaq-ul-sunnat to be abolished. The other woman contended that talaq-ul-sunnat falls under the purview of “essential religious practice” and therefore it should not be stuck down. However, there have been no major developments in this regard so far.

In the case of Reshma vs. Union of India (2021) W.P. (C) 10377/2021, which was filed by a divorced pregnant woman, it was stated that talaq-ul-sunnat was barbaric as it was against women as the husband can divorce without any reason, advance notice and without the presence of the wife. The plea was thoroughly taken into consideration by the Delhi High Court, and it was held that the plea did not stand on the grounds of merit, as the Parliament had already intervened and enacted Section 3 of the Muslim Women (Protection of Rights and Marriage) Act, 2019 clearly states that any pronouncement of divorce in the form of words, electronically, or voice is void.

Comparison with other forms of talaq

There are major differences between talaq-ul-sunnat and talaq-ul-biddat. Though both are divorces given by the husband to the wife. There are some major differences between these two forms of talaq. Talaq-ul biddat is an instantaneous form of talaq. Talaq-ul-biddat is heavily criticised. It has not been accepted by the majority of Muslims, however, some schools of thought do recognise it. The criticism is that this form of divorce is irrevocable and disregards the rights of women in particular.

In the case of Shayara Bano vs. Union of India (2017), the Hon’ble Supreme Court held that talaq-ul-biddat popularly known as triple talaq, is unconstitutional, as it promoted gender inequality and eradicated the rights of women. On the other hand, talaq-ul-sunnat does not become final instantly; it includes approximately three lunar months or iddat. It is accepted and recognised by Muslims. It is an accepted form of talaq, as this type of talaq is not irrevocable. Moreover, it ensures the rights of women as it gives the couple time for reconciliation.

Conclusion

Talaq-ul-sunnat is the most accepted form of talaq among the Muslim community. It is so because this form of talaq is not irrevocable. Talaq-ul-sunnat follows the principles of the Prophet and the Prophet has always propagated the virtue of reconciliation rather than ending the marriage instantly. However, talaq-ul-sunnat has also been criticised by various people as it includes a lot of obligations regarding waiting periods. There is also a lack of awareness regarding this form of talaq.

Frequently Asked Questions (FAQs)

Is Mulsim law codified?

No, the Muslim law is not codified. It has originated from customs, traditions, and from the teachings of the Prophet. However, there are some statutes that are made in support of women’s rights, like the Muslim Women (Protection of Rights and Marriage) Act, 2019. One has to keep in mind that the local laws are always given preference regarding “essential religious practice.”.

Can Muslim women get a divorce other than following the principle of talaq?

Yes, while talaq is the primary source of divorce. Muslim women can get talaq from Khula, Faskh, Tafweez, Lian, and under the Dissolution of Muslim Marriage Act, 1939.

Can the Court interfere in the process of talaq?

Yes, though Muslim law is a customary law that is followed by the people of that religion, the Court has the power to interfere in the process of talaq. However, the Court suffers limited jurisdiction in such cases.

Talaq-ul-sunnat

Introduction