Gender biased Muslim Divorce Laws

By Adv. KANCHAN SHAH

advkanchan1502@gmail.com

Is it fair for a man to say talaq thrice over the phone and a Muslim womans life
gets ruined? This issue shouldnt be politicised.

-Narendra Modi

Stop Divorce by Skype, Facebook

Divorce
Islam has condemned the act of divorce and such an action has been declared as evil which
attracts displeasure of God. However, when the union between husband and wife becomes
hateful and it becomes impossible for the husband and the wife to live in peace within the limits
prescribed by Allah then it is better to revoke the contract of marriage.

A divorce may be affected in the following ways:

1. By the husband at his will; or

2. By mutual consent of the husband and the wife; or

3. By a judicial decree at the instance of the husband or the wife.

Khula and Mubaraat

Khula

Divorce at the instance of the wife

A divorce by Khula is a divorce by the consent of and at the instance of the wife, in which she
gives or agrees to give a consideration to the husband for her release from the marriage tie. In
such a case, the terms are a matter of arrangement between the husband and wife, and the wife
may, as the consideration, release her dower and other rights or make any other agreement for
the benefit of the husband. Failure on part of the wife to pay the consideration for the divorce
does not invalidate the divorce, though the husband and may sue the wife for it.
In Umar Bibi v Mahammad Din, it was decided that it was not possible for the court to grant
dissolution or Khula, unless the husband consents to it. Similarly in Mst. Sayeeda Khanam v.
Muhammad Sami, the court defined khula as dissolution of a marriage by agreement between
the parties for a consideration paid or to be paid by the wife to the husband.

A Khula Divorce is affected by an offer from the wife to compensate the husband if he releases
her from her marital rights, and acceptance by the husband of the offer. Once he offer is accepted
it operates as a single irrevocable divorce.

Mubara

Divorce By Mutual Consent

A Mubara Divorce like Khula is dissolution of marriage by agreement but there is a difference.
When the aversion is on the side of a wife, and she desires separation, the transaction is called
Khula, however, when the aversion is mutual but both desire separation, the transaction is called
a Mubara. The offer may proceed from either the wife or the husband but once it is accepted, the
dissolution is complete.

Talaq
In Islam, an adult and sane husband can divorce his wife at any time without assigning any cause
or reason. Revocation of a marital contract unilaterally at the whim of the husband is called
Talak. Talaq is the termination of marriage by the sole prerogative of the husband. Talak may
be affected either orally or in writing through a Talaknama.

Different Modes of Talaq

Talaq can be affected through the following ways:

1) Talak Ahsan

This kind of Talak is affected by a single pronouncement of divorce during a tuhr followed by
abstinence from sexual intercourse for the period of iddat. Tuhr is the period intervening
between menstruations. A talak in this mode becomes effective on the expiration of the period of
iddat. The period of iddat prescribed by the Muslim law is 90 days.

2) Talak Hasan

This kind of Talak is affected by a single pronouncement of Talak in one tuhr followed by another
pronouncement of Talak in the next tuhr and then followed again by another pronouncement of
talak in the successive tuhr. Therefore, this kind of talak is affected by three pronouncements of
talak in three successive tuhrs. No intercourse should take place during any of the aforesaid three
tuhrs. A talak in this mode becomes effective automatically on the third pronouncement
irrespective of the iddat.

3) Talak-ul-Bidaat or Talak-i-Badai or Triple Talaq

Talak-ul-Bidaat is a new, irregular or heretical form of Talak which is considered as good in law but
bad in theology. The essential feature of Talak-ul-Bidaat is its irrevocability and this kind of talak
becomes effective immediately it is pronounced. It is pertinent to mention here that this kind of
talak is not recognized in FiqhJafria. Talak-ul-Bidaat can take place in the following ways:
a) By three pronouncements of talak in a single tuhr; or

b) By a single pronouncement of talak during a tuhr making his intention clear that the talak is
irrevocable.

It is important to note here:

Talaq, though permissible in Islam, has been considered the most detestable of lawful things
near Allah. In other words, Allah hates talaq despite the fact that it has been lawfully sanctioned
by Him. Therefore, Islam encourages all those efforts, which prevent talaq from happening at all.
This is because it brings unhappiness and destruction to the whole family set up.

The two important and controversial issues regarding divorce or talaq in Shariah
are:
First whether the right of giving divorce is the sole prerogative of males only or can this right be
bestowed on woman who apparently suffers more than the other partner and secondly, whether
Talaq-ul-Bidd or Triple Talaq has any room in Islam.

Quran states at one place:

When you divorce women, and they fulfil the term of their (Iddat), either take them back on
equitable terms or set them free on equitable terms, but do not take them back to injure them, or
to take undue advantage; if anyone does that, he wrongs his own soul,.....

The above verse clearly indicates the process of repudiation or separation on equitable terms.
However, it does not make a rule that men should have unbridled control of this power. Quran
has imposed conditions and responsibilities which act as a strong check on the unilateral use of
this power.

Halalah or Tehlil
According to the Qur'an (2:229, 2:230):

"Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good
treatment. And it is not lawful for you to take anything of what you have given them unless both
fear that they will not be able to keep [within] the limits of Allah. But if you fear that they will not
keep [within] the limits of Allah, then there is no blame upon either of them concerning that by
which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever
transgresses the limits of Allah - it is those who are the wrongdoers."

"And if he has divorced her [for the third time], then she is not lawful to him afterward until
[after] she marries a husband other than him. And if the latter husband divorces her [or dies],
there is no blame upon the woman and her former husband for returning to each other if they
think that they can keep [within] the limits of Allah . These are the limits of Allah, which He makes
clear to a people who know."

The above is often interpreted as following: if a husband divorces his wife by pronouncing talaq,
he can revoke the divorce within the iddat, that is, the period of separation that precedes divorce.
If the divorce is completed, the couple can remarry. The couple may divorce and remarry twice.
However, if they divorce a third time, they can neither unite within the iddat period nor marry
again until the ex-wife marries another man, to ensure that the divorce is taken seriously.

Consequently, the above interpretation is used as a strategy to remarry, or Halala, and often
justified by some as true belief.

However, even according to the archaic groups who follow this belief, this only applies where
the man has declared divorce on three separate occasions (not 3 times in a row). A Halala
cannot be planned in advance, as a Nikah between her and the second husband with an
understanding of a divorce afterwards will not be valid. If she does so, it will be an illegitimate
relationship with the second husband and with the first husband also with whom she comes to
live after a pre-planned Halala. Mohammed has cursed both such men who perform Halala and
for whom Halala is performed.

Impact of Triple Talaq and Nikah Halala on Muslim women

Triple Talaq has been a bone of contention in India when the practise has been discarded by
several Muslim majority countries including Turkey, Pakistan and Bangladesh. The practices of
triple talaq, nikah halala and polygamy impact the social status and dignity of Muslim women
and deny them fundamental rights guaranteed by the Constitution. These practices render
Muslim women unequal and vulnerable as compared to men of their community as well as
women belonging to other communities and also Muslim women outside India. The practise of
Nikah Halala has been the basis of financial and sexual exploitation of Muslim women. Reforms
in the Muslim personal Law have not taken place over six decades. It is about time the Muslim
Personal Laws are revisited and modified as per the requirements of todays changing times. The
practise of Triple Talaq and Halala are unconstitutional. Up until now, it was maintained that
when it came to marriage, divorce and other personal rifts, the state would not interfere, and the
religious law would be the prevailing authority, however, these practises have raised a
fundamental issue, whether in a secular democracy, religion can be a reason to deny equal status
and dignity, which is available to all women under the Constitution.

The Allahabad High Court in Rahmtullah v. State of UP, has given a new meaning and a new
direction to the law of talaq. Justice Tilhari observed:

talaq-ul-biddat or talaq-i-bidai, that is giving an irrevocable divorce at once or at one sitting or by

pronouncing it in a tuhr once in an irrevocable form, without allowing the period of waiting for
reconciliation or without allowing the will of Allah to bring about re union, by removing difference
or cause of differences and helping the two in solving their differences, runs counter to the
mandate of the Holy Quran and has been regarded as by all under Islam-Sunnat, to be sinful. The
court further observed that the mode of talaq giving unbridled power to the husband, cannot be
deemed operative, and creating as same has the effect of perpetuating discrimination on the
ground of sex male authoritarianism. The need of the time is that codified law of Muslim marriage
and divorce should be enacted keeping, peace with the aspiration of the Constitution.

The above observation of the court was the obiter dicta of the judgement but it helped in
mobilising public opinion.

CONCLUSION
From the above discussion, it can easily be deduced that the Islamic law of divorce has to be
completely moulded according to the true spirit of Islam. The existing laws are not fulfilling the
gaps between theory and practice. The unbridled power of husband to give Talaq to his wife
should be thoroughly monitored. Allah has not restricted this authority to a male only but it can
be given to a woman for the mutual benefits of both partners in a marriage contract. The woman
can get a Judicial divorce or through a delegation of power by husband. Triple divorce has to be
completely banned as it totally negates the teachings of Islam by shutting the doors of
reconciliation between the two partners as soon as it is pronounced. Nikah Halala has been often
misinterpreted, as it implies to where the man has declared divorce on three separate occasions
and not 3 times in a row. This leads to sexual exploitation of Muslim women. In Khula, which is
divorce by the consent and the instance of the wife, the wife is required to give consideration to
her husband for him to release her from the marital ties. Are these laws not completely gender
biased violating the rights of the Muslim women to human dignity, social esteem, self-worth and
her Right to Life guaranteed under Article 21 of our Constitution. Gender justice has been a
constitutional goal of overwhelming importance and magnitude. The Fundamental Right to
Equality takes within its fold, equality of status and the gender equality, gender equity and gender
justice are values intrinsically entwined in guarantee of equality under Article 14.