GHAZAAL KHAN

MUSLIM PERSONAL LAW

Q) Triple Talaq is not Islamic, and it is departure and deviation from the tenets of the
Quran to undermine the rights of Muslim women. Critically examine the statement with
examples and case laws?

PROLOGUE
Marriage in Islam is a civil contract 1 between a man and a woman based on the Islamic
principles to legitimize the sexual relation, procreation of children 2 and to enforce the rights
and duties on both the parties3. Dissolution of marriage is different than ordinary contract it
can be done by following ways

1.Apostasy
2.Death
3. Puberty4
4. Divorce

Divorce is the unilateral pronouncement of breakage of marriage. The right to divorce which
initiated by a man based on rational reasons, is called as "Talaq".But for a woman to exercise
this right, the marriage contract should empower her to do so if not, then she can initiate
"Khula." The meaning of "Talaq" is 'Freedom from the bondage of marriage' 5.
In Pakistan, section 7 and 8 of Muslim Family Laws Ordinance,1961 regulate the
procedure and conditions of the dissolution of Muslim marriage. To protect the parties from
bigamy, 'Zina,' deferred Haq Meher, etc. the "Talaq" or "Khula" needs to be legally
recognized.

“Triple Talaq/ Talaq-e-Biddat”

Talaq e Bidda was introduced by Umayyad dynasty during the second century of the
Mohammadan era.6 Sunni law7 recognized triple Talaq but Shia law8 does not recognize it.

1 Abdul Qadir vs. Salima (1886)

2 M.U.S Jung
3 Aqil Ahmad, pg.109
4 Khiyar ul Bulugh
5 Dr. Nishi Prohit, p.186
6 DF Mulla, Muhammadan Law, Ch XVI pg.330
7 Except Malikis
8 Baillie, pg. 118

Assignment-2
 GHAZAAL KHAN
MUSLIM PERSONAL LAW

Triple Talaq is in effect when the husband pronounces divorce three times in one sitting. In
this

condition, he can declare Talaq at any time. 9 The pronouncement can either be "I divorce you
thrice" or "I divorce you, I divorce you, I divorce you
.
“Historical Aspect
This type of divorce is not mentioned in the Quran and Sunnah. Divorce is allowed but
disliked by Allah Almighty and Prophet(PBUH). "During the caliphate of Hazrat Umar(RA)
when Arab conquered states like Syria and Egypt, men found the women there to be prettier
than their wives. To marry them, they used to divorce their existing wives by the
pronouncement of Talaq three times, knowing it was ineffective to satisfy the demands of
those women. Hazrat Umar(RA) enforced the triple Talaq in exceptional emergency cases
and not to permanently enforce it. Later jurists considered this divorce to be valid and applied
sanctions to it."10

In the Light Of Quran

Quran is the paramount source of Islamic laws, and nowhere in Quran triple talaq is
permitted.

“A divorce is only permissible twice…..”11

"If you fear separation, you should appoint an arbitrator from both families, and if they
wish to reconcile God will help them. God is Omniscient, Cognizant"12

"Those who intend to divorce their wives should wait for four months; if they change their
mind and reconcile, then God is Merciful. If they go through the divorce, God is Hearer
and Knower"13

In The Light Of Sunnah

9 Even during menstruation

10 VP Bhartiya, pg 140-143
11 Surah Baqarah verse 229, 2:229
12 Quran 4:35
13 Quran 2:226-227

Assignment-2
 GHAZAAL KHAN
MUSLIM PERSONAL LAW

Once Hazrat Mohammad(PBUH) was informed of a man who pronounced triple Talaq to his
wife. The Messenger of Allah got angry and said,
"Are you playing with the book of Allah who is Glorious while I am amongst you"14

Effects of Talaq e Biddat on Women

The concept of triple Talaq or talaq e bidat is tyrannous. It gives the utmost authority to a
single man to unilaterally decide the fate of his wife within a few seconds. The
pronouncement of triple talaq strip women of their right to decide for themselves. Men
sometimes used to exercise the triple Talaq to threaten or blackmail women in fulfilling their
unlawful desires. Triple talaq concept is a massive hurdle in the dignity of a woman. In a
society where divorced women are seen as characterless and wrong, the idea of triple Talaq
makes it worse. Many women who are not educated feel miserable and helpful after getting
divorced due to the lack of any source of income.

Judicial Decisions
Shehryar Bano vs. Union Of India15
In this landmark case, the high court of India passed a remarkable historical judgment
abolishing triple Talaq. The plaintiff filed a claim on separation by triple Talaq and
challenged the concept of triple Talaq to be unconstitutional and against the Islamic
principles. She argued, based on Article 14, 15, 21, and 25. This case changed the course of
history in India and declared Talaq a bidat to be illegal.

Fazlur Rehman vs. Aisha

In this case, the validity of divorce by triple Talaq was questioned. It was arguable that the
concept of triple Talaq is against the teachings of Islam prescribed in the Quran and Hadith. It
was held that different schools have different interpretations.

EPILOGUE
Nikkah is a deep bond between a man and woman, which even lasts on the deathbed of the
partner. Nikkah is sunnah and is suggested in Islam to be observed by every capable Muslim
under the Islamic principles. It is a lifetime commitment and should be respected, but at the
same time, Allah Almighty has allowed men and women to discharge themselves of this

14 Jami al Tirmidhi.
15 9 SCC 1 (2017)

Assignment-2
 GHAZAAL KHAN
MUSLIM PERSONAL LAW

contract in a respectful manner. A woman is a victim of the tyranny of man whenever she
falls prey to the trap of triple talaq. Any act of dissolution, contrary to Islamic principles,
shall be a crime. Women are given a reputable status in Islam. Indian Chief justice by
abolishing the immoral practice of talaq e bidat has laid the foundation for other Muslim
states to work on.

Assignment-2