ALIGARH MUSLIM UNIVERSITY CENTRE MURHIDABAD

SUBJECT :- MUSLIM LAWTOPIC :- TRIPPLE DIVORCE

SESSION – 2015-2016SUBMITTED BY:- SUBMITTED TO:-

NAME :- MOHD NAZIM Ms. SHAILA MEHMOOD

ROLL NO. :- 14BALLB62 ASSISTANT PROFESSOR

ENROLL. NO. :- GI-4920 FACULTY OF LAW , AMUCM

CONTENT1. Introduction2. Islamic mode of divorce3. Triple Talaq (Talq-ul-biddat)4. Position of triple talaq in the light of Quran and Hadith5. Effect of operation of Triple Talaq on the Islamic system of divorce6. Judicial trends with regard to Triple Talaq7. Conclusion Bibliography

INTRODUCTION In pre-Islamic Arab World pertinent power of divorce (Talaq) possessed by the husband was

recklessly unlimited. There are Quranic forms of Talaq, which are most compatible with gender justice, medical

morality, human honour, and personal parity. Talaq is an Arabic word its literal meaning is "to release" or "taking off any tie or restraint" or "removal of the restrictions of Nikah" and in Islamic jurisprudence it signifies the repudiation of marriage or dissolution of marriage i.e. divorce.

Talaq-ul-biddat, it is disapproved mode of talaq. It is sinful form of divorce and irregular mode of talaq introduce by Omeyyads in order to escape the strictness of law.

Talaq-ul-biddat is recognise form of divorce among the Hanafis. In the triple divorce three pronouncement is not necessary condition for irrevocability of effect. Sunni law recognises talaq-ul-biddat, though they think it to be sinful.

ISLAMIC MODE OF DIVORCE Divorce in the day of ignorance Among the pre-Islamic Arabs, the power of divorce possessed by the husband was unlimited.

They could divorce their wives at any time, for any reason or without any reason. That also revoke their divorce, and divorce again as many time as they prefer. 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 suitors; while they themselves would go exempt from any formal responsibility of maintenance or legal punishment.

According to Abdur Rahim, at least four various types of dissolution of marriage were known in pre-Islamic Arabia. These were Talaq, Ila, Zihar and Khula. A woman if absolutely separated through any of these four modes was probably free to remarry, but she could not do so until sometime, called the period of iddat, and had passed

ISLAMIC MODE OF DIVORCE After the advent of Islam The reforms of Prophet Mohammad (P.B.U.H) marked a new departure in the history of

Eastern legislation. He restrained the unlimited power of divorce by the husband and gave to the woman the right of obtaining the separation on reasonable grounds. He pronounced “Talaq” to be the most detestable before God of all permitted things” for it prevented conjugal happiness and interfered with the proper bringing up of children. Ameer Ali asserts:

“The permission (of divorce), therefore, in the Quran though it gave ascertain countenance to the old customs, has to be read in the light of the lawgiver’s own enunciations. When it is borne in mind how intimately law and religion are connected in the Islamic system, it will be easy to understand the bearing of his words on the institution of divorce.”

ISLAMIC MODE OF DIVORCEUnder the Muslim law, a marriage is dissolved by the death of husband or wife, or by divorce. After the death of wife husband remarry immediately but the widow cannot remarry before a certain period called iddat expires. The iddat of death is four month and ten days in the ase of death of husband and if she is pregnant, until delivery of the child.

Under the Muslim Law there is many way to dissolved the marriage.

1. Talaq-ul-Sunnat :- It is Talaq which is effected in accordance with the tradition of Prophet. It is further sub-divided into: Ahsan :- it is most Approved mode of divorce (talaq). Hasan :- it is good mode of divorce (talaq).

ISLAMIC MODE OF DIVORCE2. Triple Talaq (Talaq-ul-biddat) –Disapproved mode of TalaqIt is sinful form of divorce. It is the irregular mode of Talaq introduced by Omeyyads in order to escape the strictness of law.

Talaq-ul-biddat, is a recognized form of a divorce among the Hanafis. Triple repetition is not a necessary condition for irrevocability of effect Sunni Law recognizes Talaq-ul-biddat, though they think it to be sinful.

Shias and Malikis do not recognize this form of divorce. In order to be included in this form of divorce the following requirements are necessary: Three pronouncement made during a single tuhr in one sentence e.g., “I divorce thee, I divorce thee, I divorce

thee.” A single pronouncement made during a tuhr clearly indicating an intention irrevocable to dissolve the marriage,

e.g., “I divorce thee irrevocably”

Under the Talaq-ul-biddat, once a definite complete separation has taken place parties so separated cannot remarry without the formality of the woman marrying another man and being divorced from him.  

ISLAMIC MODE OF DIVORCE In the case of Sarabhai v. Rabia Bai, it was said that the talaq-ul-biddat is theologically

improper. It has been maintained that this form of talaq is improper from the moral point of view.

Again in the case of Fazlur Rahman v. Aisha, the validity of this divorce is questioned. It was argued that this type of divorce is against the Quranic Law and the court is bound not to give effect to the rule and it also opposed to a tradition of the Prophet(PBUH). It was held that the Quranic verses have been differently interpreted by the different Schools.

POSITION OF TRIPLE TALAQ: IN THE LIGHT OF QURAN & HADITH

‘Tripe Talaq is the most disapproved, detestable, and draconian form of dissolution of Muslim marriage. It was not there during the life time of Prophet Muhammad (PBUH). It was a post-prophet innovation of Umayyad Oligarchs in second century of the Hijri era and subsequently approbated by the jurists of Hanafi Law, the most strong and dominant school of Islamic jurisprudence conspicuous on the canvass of Sunni sect of Muslims across the world. Triple Talaq is a tryst with tyranny, which is innovatively impregnated with torture, trauma and tormentation. Triple Talaq is a weapon of victimisation of women in the hands of Muslim men devoid of any ethics, arbitration, and reconciliation. Triple Talaq destroys a woman emotionally, socially and economically.

POSITION OF TRIPLE TALAQ: IN THE LIGHT OF QURAN & HADITHIt was not there in the initial two years of the lifetime of the first Caliph Abu Bakr (R.A.H.) and second Caliph Umar (R.A.H), the great. But subsequently, triple talaq was allowed exclusively in some circumstances.For example in Arab, had conquered Egypt, Iran and Syria, etc. Holy Quran, the paramount sources of Islamic Jurisprudence has not ordained that the

three divorces pronounced in a single breath would have the effect of three separate divorces. To this effect the relevant verse of the Quran can be relied upon.

“A divorce is only permissible twice; after that, the parties should either hold together on equitable terms or separate with kindness.” Hadith: the view that mere repetition of divorce without an intention to give a Mughallaza or

final divorce or simply by way of emphasis or in momentary excitement does not amount to a Mughallaza final divorce finds full support from the following tradition.

“Mahmud-b, Labeed reported that the Messenger of Allah was informed about a man who gave three divorces at a time to his wife. Then he got up enraged and said; Are you playing with the Book of Allah who is great and glorious while I am still amongst you? So much so that a man got up and said; shall I not kill him?”

THE EFFECT OF THE OPERATION OF TRIPLE TALAQ ON THE ISLAMIC SYSTEM OF DIVORCE In fact, the meaning of accepting the cooperativeness of triple talaq is that the right of reverting given to husband by God should be suspended. Then the matter does not end here. By accepting this view many more problems also arise. For example If a man, instead of giving a Rajaee (revocable or revertible) talaq gives a talaq-e-Bain (irrevocable one) and thus he himself suspends the God-given right of reverting, then its applicability too will have to be recognized and most probably, it was because of this that some of the Fiqaha had to make the provision of a Talaq-ul-Bain, whereas, according to the Quran and the Sunnah, the talaq to a wife who had been consummated is always a rajaee talaq. Looking from this angle the entire Islamic system of talaq is badly disturbed by changes brought in by fighiyat and legal hairsplitting. This injures the spirit of Islamic legislation. It adversely affects the advantages provided by Islam in the construction of social life. It shakes equilibrium thereby causing a lot of harm to the social structure of Muslims. Therefore this way of thinking requires a change.

JUDICIAL TRENDS WITH REGARD TO TRIPLE TALAQ As in the case of Sara bai vs Rabia bai in 1905, the Bombay High Court ruled that triple

Talaq was irrevocable. This precedent was followed by the judiciary until 1978.

Later the judiciary followed the same rule of triple Talaq in other cases as well showing reluctance to bring about a revolutionary change in this aspect.

Later a remarkable effort was made by Justice Bahrul Islam, the Chief Justice of Guahati High Court to judicially redefine Talaq and held that the husband does not have unbridled power to give Talaq to his wife and that for pronouncing Talaq there must be some reason and reconciliation efforts before pronouncing it according to the principle laid down by the Quran and that unintentional Talaq in one sitting was in clear contradiction of the Shariah.

JUDICIAL TRENDS WITH REGARD TO TRIPLE TALAQ In the case of Masroor Ahmad vs the State (NCT of Delhi) & another, the court pronounced a

judgment totally in consonance with the Quran and Shariah holding that triple Talaq (Talaq al bid’ah) should be considered one revocable Talaq.

In Fazlur Rahman v. Aisha, the validity of this divorce was questioned. It was argued that this type of divorce is against the Quranic Law and the Court is bound not to give effect to the rule and it is also opposed to a tradition of the Prophet (PBUH). It was held that the Quran verses have been differently interpreted by the different Schools.

CONCLUSION Triple divorce- Hedaya defines it as a divorce where the husband

repudiates his wife by three divorce in one sentence, or where he repeat the sentence, separately, thrice within Tuhr. Such a divorce is lawful, although sinful, in Hanafi Law; but is Shia Law it is not permissible.

He may say ‘I divorce you in Talaq-ul-Biddat or Talak-ul-Bain form.’ where the intention is clear the divorce is irrevocable.

He may pronounce ‘I divorce you, I divorce you, I divorce you’; this is triple divorce, or he may say ‘I divorce you thrice’. Even the triple form is not an indispensable requirement.

BIBLIOGRAPHY1. SYED KHALID RASHID, MUSLIM LAW, EASTERN BOOK COMPANY, LUCKNOW,

FIFTH EDITION- 2009.

2. AQIL AHMAD, Revised by Prof. I.A. KHAN, MOHAMMEDAN LAW, CENTRAL LAW AGENCY, 23rd EDITION2009.

3. Mulla,Sir Dinshaw Fardunji, Mohammedan Law , LexisNexis, Haryana, Updated Edition 2014

THANKS TO ALL