Analyzing facets of Talaq-e-Hasan |Supreme Court Judgement (Triple Talaq Case)

What is Triple Talaq?

Instant Talaq or "Triple Talaq" or "Talaq-e-Biddat" is an Islamic practice that allows men to divorce their wives immediately by uttering the word "talaq" (divorce) three times. The pronouncement can be oral or written, or as in recent times, delivered by electronic means - telephone, SMS, email or social media.

Talaq given by the husband is of following types :

As per the shariat there are 3 ways in which a husband can divorce his wife/wives - Talaq-e-Ahsan, Talaq-e-Hasan and Talaq-e-Biddat. It is claimed that Talaq-e-Ahsan and Talaq-e-Hasan are recognized by the Holy Quran but Talaq-e-Biddat is a creation of the Ummayad Kings for their ill-intentions.

Talaq-e-Ahsan

"Talaq-e-Ahsan" is the 'most proper' form of talaq in which the husband expresses divorce in single sentence - "I have divorced thee" - during the period of tuhr (when the wife is not menstruating) and then has to wait till the iddat period is over.

The iddat period for a woman who has been divorced by her husband is usually three menstrual cycles. During this time, she cannot marry another man. If before the completion of iddat, the husband resumes co-habitation with his wife or says that "I have retained thee", the divorce is revoked.

In case the woman is pregnant, the iddat period lasts until she gives birth. The waiting period for a woman after menopause is three months.

The Supreme Court’s recent judgments in Shayara Bano v Union of India and Ors, popularly known as the Triple Talaq case, has drawn both applause and criticism in equal measure. A Bench of five judges ‘set aside’ the practice of ‘Talaq-e-Biddat’, i.e. instantaneous Triple Talaq.

The Bench was split 3:2 on the question of validity of the practice. Justices Nariman and Lalit found it to be unconstitutional, while Justice Joseph found it illegal. Justices Kehar and Nazeer dissented. However, Justice Nariman (with Justice Lalit concurring) and Justice Joseph used different, even conflicting, reasoning to arrive at the ‘majority decision’.

Muslim marriages are contracts, pure and simple. The question before the court was whether an instantaneous mode of termination of the marriage contract was an essential religious practice protected by the Constitution.

Divorce becomes effective after three months in Talaq-e-Hasan , if reconciliation does not happen or cohabitation does not resume. In Talaq-e-Hasan, talaq is pronounced once a month, over a period of three months.

If cohabitation is not resumed during this period, divorce gets formalised after the third utterance in the third month. However, if cohabitation resumes after the first or second utterance of talaq, the parties are assumed to have reconciled.

The first/second utterances of talaq are deemed invalid. The procedure for divorce is drawn up over three months in order to ensure that the parties have had time to reconcile, to check if the lady is pregnant, etc.

This three-month procedure was the method approved by the Quran and the Prophet. Some traditions (Hadith) say that the Prophet disapproved of, but did not forbid, instantaneous Triple Talaq, (Talaq-e-Biddat), which became effective instantaneously without the three-month period for reconciliation.

Thus, instantaneous Triple Talaq was born in remembered tradition, without Quranic mention. Some later texts even consider it sinful. Nevertheless, it has been part of the Muslim divorce law.

The Supreme Court’s decision leaves two forms of talaq – Talaq-e-Ahsan and Talaq-e- Hasan untouched. Talaq-e-biddat or instantaneous triple talaq has been set aside. Thus, in effect, it is the practice of divorce by the consecutive utterance of talaq three times that has been deemed invalid. However, a man continues to be free to utter talaq three times over three months, in order for the divorce to be effective.

The judges in the majority use contrasting, and sometimes contradictory, approaches to invalidate Triple Talaq. Justice Kurian Joseph holds “that in extremely unavoidable circumstances, talaq is permissible.

But an attempt for reconciliation and, if it succeeds, revocation, are the Quranic essential steps before talaq attains finality. In Triple Talaq, this door is closed, so Triple Talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat”. He goes on to hold that that the practice of instantaneous Triple Talaq is not integral to Islam.