Talaq ul bidaat or triple talaq validity in India
Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. In Islam, divorce is considered as an exception to the status of marriage.
Under the “Shariah” law in India there are three forms of Express divorce- Ahsaan Talaq, Hasan Talaq (both are forms of Talaq-ul-sunnat) and Triple Talaq (Talaq-ul-biddat).
A single pronouncement of Talaq (‘I divorce you’) is made by the husband during wife’s menstruation free time (called Tuhr). In another form of express divorce- Hasan Talaq, the Husband is required to make three pronouncements during consecutive menstruation free period of his wife. Divorce becomes effective after the third declaration if it has not been revoked earlier. And the most popular form of Talaq is instant ‘Triple Talaq’ or (Talaq-ul-biddat). it is also the most controversial.
This Talaq is also known as Talaq-ul-Bain. The most distinctive feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Sharia. It commands neither the sanction of Holy Quran nor the approval of the Holy Prophet.
What is the validity of Talaq -ul- Bidaat?
There has been Numerous court judgements which have established that Triple Talaq is invalid and have set some definite requirements for its validity.
In Masroor Ahmed v. State (NCT of Delhi) [2008 (103) DRJ 137 (Del.), Triple Talaq was held to be one revocable Talaq meaning that the divorce can be revoked at any time before the completion of a waiting period of 90 days (called Iddat) after which the marriage is dissolved. Talaq must be for a reasonable cause. (Talaq given in anger is not valid).
In Riaz Fatima v Mohd. Sharif [(2007) DMC 26], evidence must be given by the husband of the reasons that has compelled him to seek divorce. A proof that talaq was proclaimed thrice in the presence of witnesses or in the letter must be provided and an attempt of reconciliation has been made. There has to be proof of payment of meher (dowry) amount and observance of iddat (the period of waiting by a woman after divorce or the spouse’s death before she can marry again).
Why is talaq - ul - bidaat followed in India?
While many Muslim countries have amended their legal strictures in terms of divorce procedure, India, as far as this practice is concerned, continues to be stuck in the medieval age by continuing to uphold provisions of the archaic Muslim Personal Law (Shariat) Application Act 1937.
Although there have been wave of debates, petitions and uproar over the constitutional validity of this mode of Talaaq, the archaic law continues to persist in India due to country's rules protecting Muslim, Christian and Hindu communities following religious law.
India being a Hindu majority nation has to assure the Muslim community that it is not doing injustice with them. And in order to appease the Muslim community, Indian political leadership refrains from taking a risk of involving their personal laws. The frequent communal riots are example of sensitivity of the personal laws in India. Furthermore, any attempt to trifle with these laws is met with ferocious opposition from religious boards like All India Muslim Personal Board and other Authorities, who support that there is no scope of change in the triple talaq system. Their contention is that the abolition of triple talaq would be contrary to the teachings of the Quran; second, that men are more capable of making decisions; third, that polygamy, although not desirable, is Islamic and that it actually helps rather than hurts women; and fourth, that the Supreme Court does not have the right to intervene in religious law.
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