1

TALAK -UL-BIDA

Under the guidance of

Professor ABHINAV

MISHRA

SUBMITTED BY -

NAME: PRATIKSHA PARSHURAM

KONDAVALE CLASS:

FY L.L.B.

ROLL NUMBER: 213O65

 2

SR. NO Particular PAGE. NO

1 Introduction 3-5
2 Origin of Muslim law 6-9
3 Various sects of Muslim 10-13
4 Sources of Muslim law 14-20
5 Marriage under Muslim law 21-33
6 Classification of dissolution of marriage 34-38
7 Talaq ul bida
8 Case law sharaba new versus union of India 39-47
9 Conclusion 48-49
10 Biblography 50
 3

Introduction

The term 'Mohammedian' or 'Mohammedan' is understood to have been put to use by Christians

on analogy that followers of Christ are Christians and, therefore, followers of Mohammed are

Mohammedian or Mohammedan. Reality is that Christians follow Christ because Christ is the

God or Son of God. Therefore, no fault can be found in calling the followers of Christ as

Christians. But Mohammed is neither God nor the Son of God because it is clearly said in

Quran.'1

1. Huwa Allah-u-Ahad He is the God, the One (only) and;

2. Lam-u-Lid, Wa Lam-you-Lad He begets not and not was He begotten.

In view of this Quranic Injunction, it cannot be said that Mohammed is God or Son of God. Then

who Mohammed is the only question to be answered. Answer is that God (Allah) chose

Mohammed as His Rasool or Messenger or Postman to deliver His messages to People.

Therefore, followers of Message of God are not the followers of Messanger 2 (Mohammed). As

such, by no analogical deduction, it can be said that the followers of Messages are the followers

of Messenger3

(Mohammed) to term them as Mohammedian or Mohammedan. So, the use of the terms

Mohammedian or Mohammedan is incorrect and misnomer. The term used for the followers of

Messages (of Allah) is Muslim. The word 'Muslim' is derived from the word 'Islam', which in its

turn, is derived from the word 'Salam' (Safety). In its technical application, the term Islam means

submission to the WILL of God. The term Muslim is a noun of the term Islam and means the one

who adopts the faith of Islam. Thus, the Prophet Muhammad having not propounded any law of

1
Part 30, verse 112
2
Rasoole in Arabic
3
Rasool in Arabic
 4

his own creation; it would be very erroneous to say that there is any law laid down by

Muhammad to be called as Mohammedan Law. Hence, the use of the terminology

'Mohammedan Law' is a misnomer. The terminology 'Mohammedan Law', however, is a useful

expression so far as India is concerned because, in India, not the whole of the Islamic law, but

only a certain part of it, is applied to Muslims, Mohammedan Law, in India, can be said to mean:

that portion of Islamic Civil

Law which relates to (i) Inheritance/succession,

(ii) Wills, (iii) Gifts, (iv) Wakfs (v) Marriage, (vi) Dower, (vii) Divorce

(viii) Paternity, Guardianship and (ix) Maintenance which is applicable to Muslims in India.

From amongst these, only the Personal Law of Muslims, namely: (a) Marriage, (b) Dower, (c)

Divorce, (d) Paternity, Guardianship and (e) Maintenance is discussed in this Book.

Muslim Law was applied to Muslims in British India as a matter of policy, which was the result

of the adoption of a tradition inherited from the Mughal rulers. The earliest trace of acceptance

of this policy is to be found in the Charter of George II, granted in 1753. In Warren Hasting's

plan for the administration of justice (proposed and adopted in 1772), when the East India

Company took over the management of their territories in India it was provided in that Plan that

Maulvis and Pundits should attend the Courts to expound the law and to assist the Courts in

administration of justice. Later on, by Section 27 of the Regulation of 1780, it was laid down that

in all suits of inheritance, marriage and caste and other religious usages, the laws of the Quran

with respect to Mohammedans and those of the Shastras with respect to Hindus shall be

invariably adhered to. By that provision Maulvis gave out conflicting traditions of Prophet

Mohammad. There also came to be enacted various enactments having limited applications to

the respective princely States to avoid conflicting opinions of Maulvis. These, enactments then

came to be made applicable to Muslims in India. It may expressly be noted here that in India
 5

Muslim Law is partly codified and partly un-codified. To be exact and precise, it may be noted

that in

India, codified Muslim Law includes The Kazi/Quazis Act, 1880, The Muslim Personal Law

(Shariat) Act, 1937, The Dissolution of Muslim Marriages Act, 1939, The Muslim Women

(Protection of Rights on Divorce) Act, 1986 and The Wakf Act, 1995. The rest is un-codified

Muslim Law although there is no reason or justification for the same.

 6

ORIGIN OF MUSLIM LAW

The question is: Who is a Muslim? The answer is: Any person who professes the religion of

Islam is a Muslim. The requirements to profess Islam are: (1) Belief in unity of God (Allah) and

(2) the acceptance of prophetic character of Muhammad. To say it in Arabic

LA4-ILAHA5 ILLA6-ALLAH7, MUHAMMAD UR RASOOL ALLAH

(There is) no any God except The God and Muhammad is His (God's) messenger This is an

indispensable minimum belief. A belief in excess of this is redundancy for the purposes of law.

Although, strictly according to Islam, there may be many other requirements for calling one to be

a true Muslim but the Courts have not accepted them as the requirements of Muslim. Because,

the courts are not concerned with the peculiarities in beliefs like offering of number of prayers,

manner and method of offering prayers, believing or not believing the first three Caliphs etc.

Therefore, so long as the minimum belief exists, it must be held that person is a Muslim. Testing

on this measure rod, we find that despite peculiarities in beliefs, certain communities like

Bohras, Khojas, Shiites (Shias) are treated as Muslims. In one landmark case 8it was contended

that Shias (Shia) who use abusive language against the first three Caliphs, are not true Muslims

and should not be allowed to pray in a Sunni Mosque. It was held: first of all, a mosque belongs

neither to Sunnis nor to Shias. Secondly, as Shias accept the belief in one God and prophetic

character of Muhammad, they come within the pale of Islam and hence they are very much

Muslims. In another landmark case9 a Moplah husband became an Ahmedia.

Moplahs are strict Muslims whereas Ahmedias are not. Hence, when the husband became

4
La=NO
5
Ela-ha=a God/any god
6
Illa=except
7
Allah=Al(the)+ilaha=God =the God
8
Jiwan khan vs Habib (1933) 14 Lahore 518
9
Narantakath vs Parakkal (1922) 42 Madaras 986
 7

Ahmedia, it was taken as if he had renounced Islam. According to Islam, change in religion

would severe marital tie. The woman, under these circumstances, married another man.

Thereupon, it became a matter of public importance to the Muslim community, some holding

that there was no bigamy whereas the Ahmedias always claiming to be Muslims, asserted that

this was a clear case of bigamy. On prosecuting wife for bigamy, the lower court held that

conversion (to the Ahmedia faith being considered by generality of Muslims as an act of

Apotasy) has the effect of severing the martial tie and hence the second marriage by wife was not

bigamy. The High Court then held that conversion to Ahmedism is not an act of apostasy on the

part of a Muslim and therefore the second marriage by the woman was a bigamy on her part. For

our purposes, the paramount question is: Would peculiarities in belief in any sect, take away that

sect from the fold of Islam? The answer provided by the High Court is that it does not. The

ruling of the Court in that case shows that in order to find out whether one is a Muslim or not,

the only test that is to be applied is: Belief in Unity of God and Acceptance of the Prophetic

Character of Muhammad.

It is not necessary that a person should be born Muslim, it is sufficient if he is a Muslim by

profession. Thus, we have.

Muslims

➢ By birth
➢ By conversion

MUSLIM BY BIRTH BY CONVERSION

➢ Believes in one go d ➢ Converts by profession of islam

➢ Prophet hood of muhammad ➢ Converts by formal ceremony

 8

If a person is born Muslim, presumption is that he is a Muslim until he renounces Islam, Indeed,

mere adoption of some Hindu forms of worship would not tantamount to renunciation of Islam.

Therefore, if a person is Muslim by birth, what is most important is unequivocal renunciation of

Islam. According to strict Islamic law, if one of the parents (either mother (female) or father

(male) is Muslim, the child is treated as Muslim. However, in India, child is presumed to belong

to the religion of his father. Therefore, in India, even if mother is Muslim child is not treated as

Muslim. When a person is not Muslim, he can still be a Muslim by embracing the religion of

Islam. He will be a convert Muslim in contradistinction to Muslim by birth.

When a person accepts a Religion in which he is not born, the process of accepting the Religion

(in which he is not born) is termed as “Conversion” whereas, the process of a pathe going out of

his own religion is termed as “Apotasy”. As is shown in the Table above, one can be Muslim by

conversion. But surely and certainly, ‘Conversion’ must be bonafide and must not be malafide or

colourable. In other words, change in religion must not be for some other purpose of for ulterior

motive. If change in religion is not for change in “heart” or “belief” but it is pretended one, such

a change in religion is not legal, valid but “fraud in Law”. One Helan, Christian woman, had

married, according to Christian rites, to George who was married to a Christian woman. After

death of George, Helan cohabited with John Thomas who was a married man. In order to

legalize their union, John and Helan went through the ceremony of conversion to Islam. The

Privy Council held 10that such a marriage was of doubtful validity and fraud on law. In another

case, it was held11 that a formal profession of Islam is sufficient unless conversion is pretended.

In other words, conversion must not be colourable and not a fraud in law. The formal conversion

must be

10
Skinner vs orde,1871(14)MIA 309
11
Abdul razzak vs aga mohammed ,1893(21) IA 56-64
 9

known to public at large. Therefore, conversion is always a Question-of-Fact and will have to be

decided on the facts of that particular case.

 10

VARIOUS SECTS OF MUSLIMS

A. Origin of Islam

B. Divide of Islamic World Shia-Sunni

C. Shia-Sunni - Generally

A. Origin of Islam

According to Quran, Islam is a religion, which has existed since the beginning of mankind. It is,

however, corrupted from time to time, as people forget the rue faith. God, in His infinite mercy,

sends to people Rasul (lit. messenger) so that he points out the way and warn people. Such

Rasuls (messengers), earlier to Mohammed, were many including Abraham, Ismail, Moses and

Jesus, the son of Mother Mary. So also was Mohammed, the son of Abdullah, the messenger of

God, came to revive the true faith submission to the Will of God. In the case of Narantakath vs.

prakkal12 it was stated that there are two basic beliefs of Muslims, first, the existence and oneness

of God, and second was the belief in the truth of Prophet Mohammed’s mission.

B. Divide of Islamic World Shia-Sunni

The question of leadership came up immediately on demise of the Prophet of Islam, as it was

necessary to have a leader (Iman-Caliph) or successor of the Prophet to assume leadership

(Imamat-Caliphate) of Muslim Common Wealth. Hashamis, kinsmen of the Prophet always

maintained that the Prophet had indicated Ali (son-in-law and also his kinsman) as his successor

and by right also he could be the spiritual head. Thus, according to them, Ali was the only

rightful and legitimate Iman (leader) of Muslim Common Wealth. Whereas, Koreshies say that

the Prophet had not nominated any one as his successor and hence the leader (Caliph) will have

to be appointed byproceeding to election for the leader of Muslim Common Wealth. The faction,
12
(1922) ILR 45 Mad 986
 11

which adhered to Ali, is known as Shia, a term derived from the phrase, Shiat-E-Ali (faction or

adherent to All). Whereas the faction, which believed in appointing the leader of Muslim

Common Wealth, by election is called as Sunni, a term derived from the phrases, Ahlus Sunn-at

Wal Jamat (people of tradition and assembly). the unhappy events then divided the Islamic world

into two, Shia and Sunni. Abu Bakar was elected to the office of Caliph by votes of Koreshies to

become the First Caliph of Muslim Common World. Abu Bakar after two years nominated Omar

as his successor and thus Omar became the Second Caliph. Omar reigned successfully for more

than 10 years and died of a wound he received from a Persian slave. After Omar, Usman became

the bird Caliph and finally, after about 24 years, Ali became the Fourth Caliph. However, Shias

do not give recognition to first three caliphs and always maintain that Ali is the only legitimate

leader after the demise of the Prophet of Islam. In any case, it is worth noting that Sunnis too

accept Ali as their Caliph and it is not that they do not pay reverence to Ali. Be it as it is, the fact

remains that today the Islamic world is divided into two, Shia and Sunni. C. Shia and Sunni

Generally Before entering into the thicket of Shia-Sunni, it may clearly be noted that Shia use

the term 'Iman' whereas Sunni use the term Kalipha (Caliph) for the English Word Leader -

Khilaf = Imamt Leadership. What is necessary for the present is to notice that the term "Iman"

has to be understood in broader percept to denote the phenomenon when it had become

necessary to have a successor or the leader, a 'Temporal Ruler' or a 'Religious Chief or a Leader

by Divine Right.' The divergence in constructing the term "Iman" has divided Muslims into two,

Shia and Sunni. Shia (Adherents of Ali) take the meaning of the term "Iman" as 'leader by divine

right' and take Imamat (leadership) as hereditary. Therefore, according to Shias, since Ali is from

the 'House of Mohammed', he alone has the divine right to be their-"Imam" and so his successors

too are the "Imams." Shia are thus the adherents of Ali and, therefore, they are identified as

"Shiat-e Ali" - Turning to Sunni, it may be stated that Sunnis (Ahuls Sunnat wal Jamat People of

Assembly) take the meaning of the term "Imam" as 'the temporal leader' and hence they believe
 12

that whenever it is so necessary, they can elect or select, their "Imam" from amongst them. Shias

and Sunnis, as such, are so sharply divided that it is essential that we notice the differences in

them.

• The followers of Ali or the Shiat-e-Ali (Faction of Ali) then came to be called as Shias.

Shias accept only those traditions which come through Ali, Sunnis accept in entirety, the

traditions and perceptions of Prophet, which supplement the Quranic injunctions and treat

them almost equal in authority in them.

• Imam is the leader by divine right because he is the successor of the Prophet or rather the

descendant of Ali. Therefore, he is the final interpreter of Law on the earth. In

appropriate cases, Iman can even legislate, Imam is more of a temporal ruler than a

religious chief is. As such, in religious matters, he has to simply follow the path of

Shariat.

• •Shias repudiate entirely the authority of "Jamat" or the universality of people. As such,

the Jamat cannot elect the spiritual Chief. If he is found unfit, he may be deprived of his

Imamat.

• •According to Shias, the oral precepts of the Prophet are supplementary to the Quranic

injunctions and their binding effect depends upon the degree of harmony between the

Quranic ordinances and oral precepts of the Prophet. After Turkish Revolution in 1924,

the system of Caliphate is abolished.

• Shias reject not only the decisions but also the traditions, which do not come through Ali

or the immediate successors of Ali who had seen the Prophet. Accept the authority of the
 13

Quran.

• Imam is the descendant of Ali. According to Zaydis, a human being. According to

Khojas, he is Hazir Imam. After 4th century of Hijara, there is no Mujtahid and hence the

doctrine of ljtehad is strictly constrained. Taqlid has come to be accepted by not the

Qiyas and Ijmas, Taqlid (Law of Precedent), Qiyas (Law of Analogical deductions) and

Ijma (agreement of juris-consults) are widely accepted.

• Accept the authority of the Quran.

SOURCES OF MUSLIM LAW

(1) First Source of Law: Quran

According to classical theory, the Quran is the first source of law. Its importance is religious an

spiritual, no less than the law, A verse (Ayat) of the Quran is always held of paramount

authority. The Quran although resembles a code, in that it derives all its authority from itself, yet

it does not in any portion of it, profess to be a code complete in itself. The Quran was revealed to

Prophet through Gabriel in fragments, during the period of 22 years (609 A.D. to 632 A.D. after

Christ). Either God would send message or Prophet would put his queries and would in turn get a

reply in the form of message. All these messages (Verses - Ayats) were memorised by the

Prophet (he was illiterate and did not know reading and writing) and then by his followers. His

followers also had put down the memorised verses (messages) on Date-tree or palm tree leaves,
 14

white stones and even on their breasts. Abu Baker who succeeded Prophet sought for the Quran

and collected it for the first time. The compilation work was finally completed by Usman, the

Third Caliph and he put them in book form, the Quran. All the transcripts now existing are from

Usman's edition andsince then there has been no alteration. Probably no other work in the world

has remained for centuries so pure a text. There are 6000 verses (Ayats) set out in the Quran in

order of revelations. 200 of them deal with law and only 80 of them deal with personal law. It is

alleged by Shias that Usman has suppressed the revelations about Ali.

(ii) Second source of Law: Sunna (Traditions of Prophet)

According to classical theory of Fiqh, the second source of law is sunna or the traditions of

practice of the Prophet. The principles laid down in Quran found their way in the hands of the

Prophet. The Prophet lived strictly in accordance with the injunctions of the Quran and his was

the Model Behaviour. Practices, precedents and traditions of Prophet Muhammad are known as

Sunna. The terms Sunna and Hadis must be distinguished and understood. Hadis is the narration

of a particular occurrence in the life of the Prophet of Islam whose was Model Behaviour. The

rule of law deduced from the Hadis is called as Sunna. the word Sunna in Pre-Islamic time, was

used for an ancient and continuous usage, well established in the community. Later, after the

advent of Islam, the term was, however, used to mean the practice, precedents and traditions of

Prophet Muhammad. Sunnas are classified in three groups (1) Sunnatul-fil, what the Prophet did

(2) Sunnatul taqrif- the Action conduct done in presence of Prophet with his approval or rather

without his disapproval and (3) Sunnatul-qual the Prophet enjoined expressly by words. Ahdis

(plural of Hadis) are not written down or noted anywhere. There are many collections of Hadis.

The authoritative collections are those of Tirmidhi, Bukhari, Muslim, Samin and Sasai. Although

modern research tend to show that a large number of traditions (Hadis) ascribed to the prophet

are of late origin and therefore not free from doubt, nevertheless, their importance, in law, is
 15

never minimized. It may also be well remembered that Shias give no credence to a Hadis which

does not come from the House of Ali.

(iii) Third Source of Law: Ima (Agreement and Juris-Consults)

According to the classical theory of Fiqh, the third source of law is Ijma. Failing the Quran and

direct precedents or practice of the Prophet himself, the best guide to the law was the consensus

of his companions. Muslim Doctors (Faqihs) define lima as agreement of jurists amongst the

followers of Muhammad in a particular age on a question of law. In lima, opinions of Juris

consult coincide. Although the Muslim legists (Doctors) give it the third place, the modern

critics consider it to be the most important. A tradition summarises the principle: ‘My

community will never agree upon error.’ Rules deduced on the basis of ljma have varying degree

of sanctity in different schools. But all schools agree that where there is a valid agreement

amongst jurisconsults (Fakih), no divergence can be allowed. In other words, once lima

(Agreement of Jurisconsults) is established it cannot be repealed. The Ijma of companions of

prophet rank first. The next in order are the lima wherein jurists agreed and others did not

dissent. The agreement of Juris Consults on a new point come third in order and last ill them

come the Ijma on which earlier there was disagreement amongst juris-consults. Hanafis regard as

a fundamental source whereas Shafis give second place. Malakis place ljma of scholars of

Madina above others.

(iv) Fourth Source of Law: Qiyas (Analogical Deductions)

The Fourth Source of law, according to the classical theory of Fiqh, is Qiyas. Qiyas means

analogical deductions. Qiyas does not lay down a new principle but it is a kind of permissible
 16

exigency. Qiyas is a weak kind of ljtehad. The term ‘rai’ and ‘qiyas’ are often misconstrued,

individual reasoning ill general is called ‘rai’ opinion. Yllen rai (opinion) is directed towards

achieving systematic consistency or decision it is called Qiyas. Hambalis oppose the Quiyas so

also Shias (because, according to them, only Imams can change he law). Shafis also regard

ljtehad and Quiyas as contradictory of their views.

(v) Other Sources of Law

In addition to the above main Sources of Law, we find that the law is occasionally supplemented

By other principles also. The following can be summarized.

• Isti Hasan Jurisic preference Equity

• Isti Salah Public interest ljtehad – Exercising one’s own reasoning to deduce rule of
law

(Shariat)

• Ljtehad Exercising one’s own reasoning to deduce rule of law (Shariat)

• Taqlid Law of Precedents.

• Fatwas Decisions of Muslim Judges.

• Isti Hasan Jurisic preference Equity

Imam Abu Hanifa adopted the principle of Isti Hasan for the relief from absolute dependence on

analogical reasoning. Isti Hasan literally means liberal construction or juristic preference or what
 17

we call today as law of equity. This term was used to express liberty of laying down such rule as

may be necessary and the special circumstances may require. The objection taken against it is

that It left an almost uncontrolled discretion in the exposition of the law.

• Isti Salah- Public interest

Imam Malik who will be presently mentioned as the founder of a school of Sunni law, also felt

the necessity of surer test for the development of law on right lines than the use of analogy. He

approved the introduction of Isti Salah (public interest) in preference to Isti Hasan. He laid down

that ordinarily, analogy was used to expand law but if it appears that a rule indicated by analogy

is opposed to general utility then Isti Salah (principles of public interest) should be resorted to.

Under this system, rule of law pointed out by analogy could not be set aside either: (1) on the

opinion of the individual expert of the law of (i) with reference merely to the circumstances of

particular case: it could be disregarded only if it would be harmful to the public in general. ©

• ljtehad Exercising one’s own reasoning to deduce rule of law (Shariat)

When Quran and Hadis did not disclose the precise line to follow, ljtehad came to be born.

Itehad means independent judgement or considered opinions of individuals or exercising one’s

own reasoning to deduce a rule of Shariat. As a method of reasoning in law, ljtehad of prophet

tersely has gained almost equal footing with the first four founders of the law. In deducing

ljtehad. Quran and Hadis cannot be over looked but exigency of time and public interest were

also to be borne in mind. Where a legal principle is silent, ljtehad can be used with advantage.

But litehad was the privilege of great scholars or Mujtahids. The authority of the Mujtahids

(great scholars) based not on his holding any office in the State but is derived purely from the

learning and reputation of the individuals. The qualifications of the Mujtahids consists of a
 18

complete knowledge of Quran L.e., he should know the sacred text by heart and should be able

to say when and where each verse was revealed and he should also have a perfect knowledge of

all the traditions (Sunna Hadis) and all the branches of the science of law. He should, besides, be

a man of austere piety. In short, the qualifications required are such that so far as the Sunni Law

is concerned, after the death of Ibne Hanbal (856 after Christ) there have been no recognised

Mujtahids. With the end of Mujtahids, the doors of ljtehad no longer remained open. This is

known as the closure of the golden gate of 1jtehad -Bad Al Injtehad.

• Taqlid Law of Precedents

After ljtehad or rather on the closure of the Gates of ljtehad, a parallel doctrine of Taqlid (Law of

precedents) came to be in existence. Under Taqlid (literally, imitation) means following opinions

of another person without knowledge o the Authority or the authority for such opinion. A

Muslim had to follow the Law; every Muslim in the street could not be learned in the rules of

Shariat, being ignorant, he was asked to follow the opinions of those who knew better. Those

who knew better (Ulemas) were denied independence of judgement in any vital matter. Hence,

the vicious circle of Taqlid (imitation Law of Precedents)

• Fatwas- Decisions of Muslim Judges

As already aforesaid, the Law sent down by Allah by direct revelations is recorded in Quran and

what is sent down by him is recorded in Sunna/Sunnat of Prophet of Islam. Even the King has no

authority to make law and therefore, the Muslim Kings called upon the Muslim scholars to guide

them in the matter of Law. The opinions tendered by Muslim Jurists to King were accepted by

King of enforce the Law in the territory of his kingdom. Therefore, the opinions of Muslim

Jurists were always held in high regard. With the advent of time, even the ordinary Muslims

would turn to such jurist and ask for his opinion. Such opinion of Muslim Jurist is referred to as

Fatwas. In India, during the Seventeenth Century A.D. when Mughal Emperor Aurangazeb came

in power, he appointed Shaykh Nizam Burhanpuri and four others to prepare a compilations of
 19

Fatwas. Accordingly, they sent questionnaire various juris-consults and Muftis. Their Replies are

the collection of Fatwas, popularly known as Fatwa-e-Alamigir. However, Fatwas are not source

of law,13

13
.A. Saiyed, Family Law, Himalaya Publishing House, 4th Revised Edition, 25th December 2018 (p
56,56)
 20

MARRIAGE UNDER MUSLIM LAW

Offer & Acceptance

Marriage in Islamic law is a contract that is concluded by an offer made by one party and an

Acceptance given by the other. No particular form of words is required so long as the intention to

Conclude of marriage is clear. Under the Muslim law for the validity of a marriage there must be

a Proposal and acceptance at the same meeting. The proposal and acceptance must both be

expressed at One meeting; a proposal made at one meeting and acceptance made at another

meeting does not make A valid Muslim marriage. Neither writing nor any religious ceremony is

essential.

Under the Sunni law, the proposal and acceptance must be made in the presence of two male

Muslims Who are of sound mind and have attained puberty or one male and two female

witnesses who are Sane, adult and Muslim. Absence of witnesses does not render marriage void

but make it void able.Under the Shia law witnesses are not necessary at the time of marriage.

The proposal and acceptance Need not be made in writing. Where the offer and acceptance are

reduced into writing, the document is Called ‘Nikah nama or Kabin-nama.The proposal made by

or on behalf of one of the parties to the marriage, and an acceptance of the Proposal by or on

behalf of female witnesses, who must be sane and adult Muslim.

Presence of Witnesses

Hanafi, Shafi and Hanbali schools require two adult male witnesses or one male plus two

females.However, in Maliki and Ithna Ashari’s law the presence of witnesses is recommended

but not Mandatory, provided that in Maliki law sufficient publicity is given to the marriage.

Capacity of the Parties

 21

Every Muslim of sound mind who has attained puberty, may enter into a contract of marriage.

Puberty Means the age at which a person becomes adult (capable of performing sexual

intercourse and Procreation of children). A person is presumed to have attained the age of

puberty on the completion Of 15 years. So the boy and girl who has attained puberty can validly

contract a marriage .A marriage Under Muslim law is perfectly valid if the parties have attained

puberty and satisfied all other Conditions specified by the law.According to the child marriage

restraint act 1929, a marriage of male below 21years of age and Female below 18 years of age is

child marriage. The act prohibits such marriage. The Act prescribes That for a valid marriage the

minimum age for male is 21 and female is 18. The parties who are Violating the provisions of

Child Marriage Restraint Act are liable to be punished. Thus if two Muslims Marry before

attaining the age prescribed under the child marriage restraint Act they are liable to be Punished.

However the marriage between two Muslims who have attained puberty is valid though They

have violated the provisions of Child Marriage Restraint Act.

Free Consent

Free consent of the parties is absolutely necessary for a valid marriage. If there is no free consent

a Muslim marriage is void. Under the Muslim Law, a marriage of a Mohammedan who is of

sound mind and has attained puberty is void; if it is brought about without his consent The

marriage of a girl who has attained puberty and is of sound mind would be void if her consent is

not obtained. When the consent to the marriage has been obtained by force or fraud, the marriage

will be invalid, unless it is ratified. When a marriage was consummated against the will of the

women, the marriage is void. The person who has been defrauded can repudiate the marriage. Ge

Solutely
 22

Lunatics and minors who has not attained puberty may be validly contracted by their respective

guardians. A minor is incompetent to give valid consent. The right to contract a minor in

marriage belongs successively to the following persons: n

• Father

• Paternal Grand Father (h.hs-How high soever)

• Brother and other male relations on the fathers side

• Mother

• The maternal uncle or aunt and other maternal relations.

Under the Shia law only the father and the paternal grand father are recognized as guardian for

contracting marriage of a minor.

If a minor, whether male or female, be contracted in marriage by a remoter guardian, while a

nearer guardian is present and available and such nearer guardian does not give consent to the

marriage, the marriage is void. But if the parties ratify it after attaining puberty, it will be valid.

However if the nearer guardian be absent at such a distance as precludes him from acting, the

marriage contracted by the remoter is also lawful.14

No Legal disability

14
.A. Saiyed, Family Law, Himalaya Publishing House, 4th Revised Edition, 25th December 2018 (p
56,56)
 23

Under Muslim Law, marriage under certain circumstances is prohibited or not permitted.

The prohibitions can be classified into two classes:

a. Absolute Prohibition

1) Prohibited degrees of relationship

Under the Muslim law marriage between persons who come within the blood relationship, or

certain other relationship is prohibited. The prohibited relationships are the following:

(a) Consanguinity - Consanguinity means blood relationship and a prohibits a man from

marrying the following females

1. His mother or grandmother (however high so ever)

2. His daughter or granddaughter (how low so ever)

 24

3. His sister whether full blood half blood or uterine blood

4. His niece or great niece (how low so ever)

5. His aunt (father’s sister or mother’s sister)or great aunt (how high so ever)

A marriage with a woman who comes within the relationship of consanguity is absolutely

void.Children born out of that wed-lock are illegitimate.

(b) Affinity- A man is prohibited from marrying certain female relatives due to nearness of

relationship. A man is prohibited from marrying

1. His wife's mother grandmother (however high so ever)

2. His wife's daughter or granddaughter (how low so ever)

3. His father's wife or paternal grandfather's wife (how high so ever)

4. Wife of one’s own son or son’s son or daughter’s son (how low so ever)

A marriage with a woman comes within the relationship by affinity is void.

(c ) Fosterage- It means the milk relationship. When a child is breast-fed/suckled by a woman

other Than its own mother, she becomes the foster mother of the child. A man is prohibited from

marrying Certain persons having foster relationship. According to Shia jurists fosterage includes

the same limits Of relationship prohibitive to marriage as consanguinity. A man may not marry

the following females:

1.His foster-mother or grandmother (however high so ever)

2.His foster-sister (daughter of foster mother)

However Sunnis do not follow the same. Under the Sunni law, there are certain exceptions to the

General rule of prohibition on the ground of fosterage and a valid marriage may be contracted

with:
 25

1.Sister’s foster mother, or

2.Foster’-sister’s mother, or

3.Foster-son’s sister, or

4.Foster-brother’s sister.

The Shia jurists refuse to recognize the exception permitted by the Sunnis. The above mentioned

Prohibitions on account of ‘consanguinity’, ‘affinity’ or ‘Fosterage’ are absolute and the

marriages Contracted in contravention of these rules are void

2) Polyandry

Polyandry means marrying more than one husband. Polyandry is a form of polygamy in which a

Woman is having more than one husband at the same time. Under Muslim law Polyandry is

prohibited And a married woman cannot marry second time so long as the first marriage subsists

and the Husband is alive.If a woman violated this prohibition and contracted a second

marriage ,the marriage Is void and the woman is liable to be punished for bigamy under section

494 of the Indian Penal Code.

B) Relative prohibition

Under Muslim Law, there are certain prohibitions, which are not absolute but only relative, and

Marriage in violation of such relative prohibitions will only be irregular and not void and at the

Moment when the irregularity is removed the prohibition ends and the marriage becomes valid.

The Following are the relative prohibitions.

1) Unlawful conjunction
 26

A man is prohibited from marrying two wives at the same time if they are related to each other

by Consanguinity, affinity or fosterage, which they could not have lawfully intermarried with

each other if They had been of different sexes. Thus a Muslim cannot marry his wife’s sister

while the wife is alive.But he can make the marriage valid by marrying his wife’s sister after the

death or divorce of his first Wife. Marriage with two such wives is an Unlawful conjunction.

Under sunni law a marriage in

Violation of the rule of unlawful conjunction is not void but only irregular. However under Shia

law, a Marriage in violation of the rule of unlawful conjunction is void. Under the Shia Law, a

Muslim may Marry his wife’s aunt, but he cannot marry his wife’s niece without her permission.

2) Marrying a fifth wife (Polygamy)

Muslim law permits polygamy (Marrying more than one wife ) with a restriction of maximum

four Wives. So a Musalman can have four wives at the same time. If he marries a fifth wife when

he has Already four, the marriage is not void, but merely irregular. But the fifth marriage can be

made valid After the death or divorce of any one of the four wives of his earlier marriages.

Under the shia law Marriage with the fifth wife is void.In India no Muslim marrying under or

getting his marriage registered under The Special Marriage Act, 1954,can marry a second wife

during the lifetime of his spouse.

3) Absence of proper witnesses

A marriage must be contracted within the presence of proper and competent witnesses. Under the

Sunni law at least two male or one male and two female witnesses must be present to testify that

the Contract was properly entered into between the parties. The witnesses must be of sound

mind, adult And Muslim. A marriage without witnesses is irregular.Under the Shia law the

presence of witnesses is not necessary. The marriage is contracted by the Spouses themselves or
 27

their guardians in private are held valid. The absence of witnesses does not Render the marriage

void but only invalid.

4) Differences of religion (Marriage with non-muslim)15

The law with regard to marriage with a non-Muslim is different under Sunni law and Shia law.

Under Sunni law a male can marry a Muslim female or a Kitabia (a person who believes in a

revealed religion Possessing a Divine Book viz Christianity and Judaism). A Sunni muslim male

can validly marry a jews Or christian female. But he cannot marry an idolatress or a

fireworshiper. A marriage, with an Idolatress or a fire worshiper is merely irregular and not

void.A Muslim woman cannot marry a Kitabia /non-Muslim man. A marriage of a Muslim

female with a Non-Muslim male, whether he is a Christian, or a Jew or an idolator or a Fire-

Worshiper is not void but Irregular. According to Mulla, a marriage between a Muslim woman

and Non-Muslim male is irregular. But according to Fyzee, such a marriage is totally void.Under

Shia Law a marriage with a non-muslim is void. Both the spouses are required to be Muslims.

The marriage of Sunni male with a Shia female is void. A marriage of a Muslim female with a

non-Muslim male, whether he be a Christian, or a Jew or an idolator or a Fire-Worshiper is void

under Shia Law.

In India a marriage between a Muslim and a non-Muslim can only take place under The Special

Marriage Act, 1954.If a muslim male marries and registers under the Special Marriage Act,

1954, he Cannot marry a second wife during the subsistence of the first marriageA marriage of a

Muslim female with a non-Muslim male, whether he be a Christian, or a Jew or an Idolator or a

Fire-Worshiper is void under Shia Law.

5) Marriage during Iddat

 28

Under Muslim law, a woman who is undergoing iddat is prohibited from marrying during that

period. Iddat is the period during which it is incumbent upon a woman, whose marriage has been

dissolved by Divorce or death of her husband to remain in seculasion, and to abstain from

marrying another Husband. The purpose behind that is to ascertain whether she is pregnant by

earlier husband , so as to Avoid confusion of the parentage of the child.

The period of Iddat is prescribed as under:

1.In case termination marriage by divorce- three lunar months or three menstrual courses.

2.In case of widow- 4 months and 10 days.

3.In case the woman is pregnant – till the delivery.

Under Sunni Law a marriage with a woman undergoing Iddat is irregular and not void. Under

Shia law A marriage with a woman who is undergoing Iddat is void.

Classification of Marriages

Sahih

Batil

Fasid

There are three types of marriages in Sunni schools:

Subject-Muslim Law

1. Sahih Firstly, there is “Sahih” marriage which is fully valid and effective.

Under such a marriage, sexual intercourse is lawful and the woman is

entitled to both dower and

 29

2.Maintenance.

3. Batil Secondly, there is a “Batil” (void) marriage. Under such a marriage, no rights or

obligations exist between the parties. Parties would be guilty of zina, save where the parties

were unaware of the fact that the marriage was void. If a marriage is affected by a permanent

impediment, then the marriage is declared void. The permanent impediments arise Under the bar

arising from relationship of blood, a man may not marry any ascendant or descendant, Any

descendant of his father or mother, or the immediate child of any ascendant, nor may a woman

marry any corresponding male Under the bar of fasterage, two persons who were suckled the

same foster mother are permanently barred from marrying each other

The bar of affinity arises from marriage, so a man may not man the former wife of any ascendant

or descendant, or any ascendant or descendant of consummated his marriage. Under the bar of

polyandry, Le when a woman wife with whom he actually had second marriage during the

subsistence of

Her first marriage. 3. Fasid Thirdly, there is a Fasid (irregular) marriage, which is middle way

out. This is also no marriage, but can be regularised in certain conditions. Under such a marriage,

no zina is committed and a dower is payable An irregular marriage arises from temporary

impediments,

Which occur whem

• There is an absence of witnesses

• A woman who is already married.

• A woman whom he has triply repudiated, unless she has married another man and that

marriage has been terminated

• A man may not marry at the same time two sisters or a mother and her daughter

• A man who already has four wives may not validly marry a fifth. A Muslim man may contract

marriage with a non-Muslim woman provided she is a khitabiyah.

 30

• A Muslim woman, on the other land, may only validly contract marriage with a Muslim man.

• According to the non-Hanafi schools of Sunni law, a marriage concluded by a woman herself

without a guardian is also invalid as is a marriage concluded by a person performing haj

• According to Malik law, a person who is in a state of death sickness is prohibited from

marriage.
 31

The Effects of Impediments to Marriage

The presepte of an impediment to marriage may render the marriage either void or irregular. The

impediments that have the potential to render a marriage void are those that are permanent and

those where the impediment, although of a temporary nature, is one that the parties themselves

have no power to remove such as if the woman is married to another man. Where any other

impediment exists. The marriage is not void but irregular If the marriage is irregular certain

effects flow from it:

The parties may not be found guilty of zina. Any children born out of the union will be held to be

legitimate. When the parties separate, and separate they must, the woman must observe an idda

period.

A marriage, which may be held to potentially void, will be regarded as irregular if the parties

have

Muta marriage-

The Shia Jaw recognizes two kinds of marriage, namely (1) permanent, and (2) muta (literally

means enjoyment or use) or temporary The fundamental difference between the two is that in

former the terms not specified while in the later it is. Sunnis do not recognize such marriage

Muta Marriage is an ancient Arabian custom.

Ashia male may contract a muta marriage with kitabia woman (professing Muslim, Christian or

Jewish religion) or even with a woman who is fire-worshipper but not with a woman following

any other religion. But a shia woman may not contract a muta marriage with a non-Muslim. A

Shia male can contract any number of muta marriages. All the requisite formalities of marriage,

such as of offer and acceptance, have to be observed in the muta marriage. It is essential to the

validity of
 32

Muta marriage that

(1) The period of cohabitation should be fixed (a day, a month, year, years) and that (2) some

dower should be specified otherwise marriage will be void. If the period is not specified,

though dower is specified, it should be considered as a permanent union, even if the parties

call it a muta.

That main incidents of muta marriage are:

1. No mutual rights of inheritance created between the spouses, but children considered

legitimate and capable of inheriting from both parents. Thus, a muta marriage is

different from prostitution and it is not a marriage for pleasure or a marriage of

convenience 2 Wife is not entitled to maintenance (unless specified). However, she is

entitled to maintenanceAs a wife under the Cr. P.C 3. If marriage is not consummated,

the wife is entitled to only half of the dower. If consummated,

Then full dower 4 On the expiry of the term of marriage, if the marriage has been consummated,

the wife is

Required to undergo iddat to three courses. 5. Husband has the right to refuse procreation i.e. izl

5. Marriage come to end ipso facto on the expiry the term, unless extended. Husband and wife

do not have a right of divorce, but he can terminate the union earlier by making a “gift of the

term (hiba-i-muddat) In that case, the wife is entitled to full dower. The wife has a right to

leave the husband before the expiry of the term of the muta marriage; if she does so, the

husband has a right to deduct the proportionate part of the dower for the unexpired period.
 33

Divorce further is classified into four categories:

1.By husband: Talaq, Ila, Zihar

2.By wife Talaq tafweez

3.By mutual consent: Khula and Mubarat

4.By Judicial decree under the dissolution of Muslim Marriage Act, 1939:

Here we are concerned with Talaq which is further divided into three categories:

1.Talaq-us-Sunnat

(A)Talaq-ul-Hasan

(B)(b) Talaq-ul-Ahsan

2.Talaq-ul-Biddat [Triple Talaq]

(1)TALAQ-US-SUNNAT It is that talaq which carries the approval of the Prophet Muhammad

(PBUH). It is a traditional mode of divorce, approved by Prophet Mohammad, and is valid

according to all Schools and Sub-Schools of Muslim law It is further of two types:

(a) Talaq Ahsan (b)Talaq Hasan

A. TALAQ AHSAN: The Arabic word Ahsan means “best” It is the most approved form of

divorce In Ahsan the husband repudiates his wife by a single pronouncement of talaq in a
 34

period of Tuhr (purity Le, when the woman is not passing through the period of menses)

during which he has not had sexual intercourse with her, and then leaves her to the

observance of Iddat (the period of waiting of women after divorce or death of her husband

during which she cannot remarry). The divorce remains revocable during iddat. B.

TALAQQ HASAN Hasan is the approved form of divorce. In this talaq, husband

pronounces divorce three times during consecutive periods of Tuhr It is therefore,” a

divorce upon a divorce” where the first and second pronouncements are revoked and

followed by a third only then the Talaq becomes irrevocable16

16
4 Advocatespedia, TALAQ-UL-BIDA, 18TH April,2020 (p 2,3,4)
 35

II. TALAO-UL-BIDA (Not Approved Form)

(a) Introductory

The Talaq-al-Bida (Bidat) as its name signifies is the irregular mode of divorce which was

introduced in the second century of the Mohammedan era. It was then the Ommeyyad monarchs,

finding the checks and prevents imposed by Prophet of Islam on the facility of repudiation,

interfered with the indulgence of their caprice. They then accordingly endeavoured to find out un

escape and ultimately found out this escape. The Shias and Malikis do not recognize the validity

of Talaqul Biddat while the Hanafis and the Shafis agree that a Divorce is effective, if

pronounced in the biddat form. Talaq-ul-Bidat is either Triple or One Single Inevocable

Declaration

(b) Triple Talaq

The Prophet of Islam pronounced Talaq to be the most detestable before God of all the permitted

things 1 (Divorce) is treated as Mubah (permitted) though the exercise of the power (without any

cause) is morally and religiously ignoble. Therefore, the kind of Talaq recognized by all schools

is the Talaq-us Sunnat. However, the Ommeyyad monarchs found out an escape frm the

strictness of the law and reintroduced the custom of divorce of pre-lamic Era. Thus, when Talaq

itself is most detestable of all permitted things, Talaq-ul-Bidat, under no circumstances can be

justified or approved. But the deplorable development is that the Talaq-al-Bidat has become the

most common for men and men have always moulded the law of marriage most agreeable to

them.

In Talaq-ul-Bidat, the husband pronounces Talaq three times in one single period of Tubur

(when woman is not undergoing the menstruation). The declaration of Talaq may be in one
 36

sentence eg. Have divorce ther triply or ‘I divorce, thee. As a matter of fact, such a Talaq is to be

given in Tuhar but, in certain cases, Talaq pronounced during the menstrual period is also

recognized by the Hanafi School as is laid down. However, the Full Bench of Bombay High

Court has held that Muslims must follow the norms laid down in the Quran. The apex Court too

has held that merely taking a plea in the Written Statements that Talaq was given that would not

have the effect of Talaq. Talaq to be effective, it is necessary to have pronounced in the manner

laid down under the Personal Law Pronounce means to proclaim” or to Futter formally The flea

in the Written Statement or some affidavit filed in some civil Court does not amount to

pronouncing the Talaq.

Single Irrevocable Talaq

Apaher form of disapproved divorce is single irrevocable pronouncement either during the

period of Tuhur or otherwise. It is generally given in writing Such writing is called Bill of

Divarcement. It comes into effect immediately and servers the marital tie forthwith, The Full

Bench of the Bombay High Court has held that if husband in the Court claims that he had given

Talaq under Talaq-ubdidat from and if that is disputed then he must prove that he had complied

with the pre conditions stipulated in Quran, viz., (1) before exercising the right of Talaq, there

was arbitration lone person from wife and one person from husband (ii) the declaration of Talaq

was in Tubur (time of purity); (ii) the Talaq was given in presence of sufficient number of

Muslim witnesses and not before non-Muslim witnesses (iv) During three menstruation periods

or if wife is no, menstruating then three lunar months, no sex indulgence had taken place. If

Husband is not able to prove these pre-conditions then Talaq is invalid and it does not come into

force

CASE LAW

As already aforesaid, Talaq-ul-Bids is not approved form of divorce. However, if not elsewhere,

atleast in India, it had become the only form of Talaq. Therefore, when a Muslim woman who
 37

had married to a Muslim man in Allahabad, she approached the Hon’ble Supreme Court of India

under Article 32 of the Constitution. In that case, one Shayara Bano had married to Rizwan

Ahmed On 10-10-2015, husband Rizwan Ahmed sent Talaq Nama to his wife in the followings
 38

CASE LAW

“Deed of Divorce”

Shayara Bano vs Union of India, better known as the ‘Triple Talaq Case’, gave India a historical

judgement which declared the practice of Triple Talaq to be unconstitutional. The Triple Talaq

judgement is widely regarded throughout the jurisdictions as a safeguard against social evils.

Because of the astute and justified reasoning provided by the majority bench of the Supreme

Court, India finally abolished the regressive and immoral practise of instantaneous Triple Talaq.

EQUIVALENT CITATIONS: AIR 2017 9 SCC 1 (SC)

DATE OF JUDGEMENT: 22nd August 2017

BENCH IN SHAYARA BANO CASE:

Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Nariman, Justice

Uday Lalit, Justice K. M. Joseph

FACTS OF SHAYARA BANO vs UOI:

The petitioner, Shayara Bano, had been married to her husband, Rizwan Ahmed, for 15 years. In

2016, he divorced her through instant triple talaq (talaq -e biddat), i.e., a practice that allows a

man to divorce his wife by saying the word “talaq” three times in one sitting without his wife’s

consent.

Shayara Bano filed a Writ petition in the Supreme Court pleading to declare three practises talaq-

e-biddat, polygamy, and nikah-halala as unconstitutional as they violate the fundamental rights

of women enshrined in Articles 14, 15, 21, and 25 of the Indian Constitution.

Nikah Halala means a practise in which a divorced woman who wishes to remarry her husband

must marry and get a divorce from a second husband before remarrying her first husband while

polygamy means the practice of Muslim men having over one wife.
 39

On February 16th, 2017, the Court requested written submissions from Shayara Bano, the Union

of India, various women’s rights organisations, and the All India Muslim Personal Law Board

(AIMPLB) on the issues of talaq-e-biddat, nikah-halala, and polygamy.

The Union of India supported the petitioner’s claim that these practises are unconstitutional and

women’s rights organisations such as Bebaak Collective and Bhartiya Muslim Mahila Andolan

(BMMA).

However, the AIMPLB argued that uncodified Muslim personal law is not subject to

constitutional judicial review, and that these are essential Islamic practises protected by Article

25 of the Constitution.

DECISION IN SHAYRA BANO vs UNION OF INDIA: The Constitution Bench of the

Supreme Court, by a 3:2 majority, set aside and declared the practice of instantaneous Triple

Talaq or Talaq-e-biddat to be unconstitutional under Article 14 read with Article 13(1) of the

Indian Constitution. In Shayra Bano vs UOI, the Court held that the Muslim Personal Law

(Shariat) Application Act of 1937 had sanctioned the practice as a matter of personal law. The

Court clarified that “…an arbitrary action must involve negation of equality” and determined

that, because triple talaq states that “…the marital tie can be broken capriciously with no attempt

at reconciliation to save it”, this arbitrariness violates Article 14 of Constitution of India. The

apex court further held in Shayra Bano v UOI that the Muslim Personal Law (Shariat)

Application Act 1937 is void where it recognizes and enforces triple talaq, citing Article 13(1),

which states that all laws in force immediately before the commencement of the current

Constitution (including the 1937 Act) are void where they are inconsistent with the fundamental

rights enshrined in the Constitution. The SC ruled that the practice of Talaq-e-biddat is

notprotected by the exception set out in Article 25, as the court determined that it is not an

essential component of the Islamic religion. The court justified its position by stating that, while

the Hanafi School practices it, it is sinful in it. Triple Talaq contradicts the basic tenets of the
 40

Quran, and whatever contradicts Quranis contradicts Shariat; thus, what is bad in theology

cannot be good in law.

CONCLUSION OF SHAYARA BANO v UNION OF INDIA: The landmark

decision in Shayra Bano case is unquestionably a step toward equality, and it has provided a

foundation for future personal law and social amendments. This decision in Shayara Bano v UOI

also dealt with the minority in a very viable manner, which is a step toward secularism.

Although the primary focus was not gender justice, it will have significant positive implications

for advancing women’s rights and gender equality in India. It is expected that this judgement

will be viewed objectively and will assist Muslim women in living a better and more secure life

as guaranteed by the law of the land.

Counselling/Arbitration/Judicial Separation under Quran

Qic Injunction 4:35, as aforesaid, clearly lays down that Talaq does not come into for without

Appointing or person from wife and one person from hustund. It is nothing but arbitration as

understood in the moder law Even after mach mediation or arbitrations, parties fall to resolve

their grievances and marriage ds to be dissolved. The procedure prescribed by Quran for

dissolving the marriage after whimatio mediation in in the nature of modern world's Law of

Judicial Separation. The procedure of finally dissolving marriage is by pronouncing talaq three

times. Talaq has to be pronounced in presence of twy winesses each time and it can be

pronounced only when wife is free from her menstrual period. After ing first Talaq, husband has

to wait for one month. During this one month, husband can revoke the first Talaq impliedly

expressly and, in that eventuality, divorce does not come into effect. But, after first Talaq, if

parties are not remind, then husband has to pronounce second Talaq has to be pronounced in the

presence of two witnesses and when wife is free from mensuration (or after one month of first

Tal) Husband cas revoke the second Talaq and then marriage in not dissolved. Again, third Talaq

has o be pronounced in the presence of two witnesses and when wife is free for mentanation for
 41

after one of first Talaq). After p ment of Husband cannot revoke the Talaq and it comes into

force of third month. Aher petoedere for dissolving the Muslim Marriage is husband pronounces

Talaq in the presence of two winesses anal when wife is free from her menstruation and wait for

three Dering this period during first two most husband can revoke the Talay expressly impliedly

and marriage is not delved but if it is not reveled in first two months, then marriage stands

dissolved by operation of Law at the end of thind me Three months waiting is same as Judicial

Counselling/Arbitration/Judicial Separation under Quran

Qic Injunction 4:35, as aforesaid, clearly lays down that Talaq does not come into for without

Appointing or person from wife and one person from hustund. It is nothing but arbitration as

understood in the moder law Even after mach mediation or arbitrations, parties fall to resolve

their grievances and marriage ds to be dissolved. The procedure prescribed by Quran for

dissolving the marriage after whimatio mediation in in the nature of modern world's Law of

Judicial Separation. The procedure of finally dissolving marriage is by pronouncing talaq three

times. Talaq has to be pronounced in presence of twy winesses each time and it can be

pronounced only when wife is free from her menstrual period. After ing first Talaq, husband has

to wait for one month. During this one month, husband can revoke the first Talaq impliedly

expressly and, in that eventuality, divorce does not come into effect. But, after first Talaq, if

parties are not remind, then husband has to pronounce second Talaq has to be pronounced in the

presence of two witnesses and when wife is free from mensuration (or after one month of first

Tal) Husband cas revoke the second Talaq and then marriage in not dissolved. Again, third Talaq

has o be pronounced in the presence of two witnesses and when wife is free for mentanation for

after one of first Talaq). After p ment of Husband cannot revoke the Talaq and it comes into

force of third month. Aher petoedere for dissolving the Muslim Marriage is husband pronounces

Talaq in the presence of two winesses anal when wife is free from her menstruation and wait for

three Dering this period during first two most husband can revoke the Talay expressly impliedly

and marriage is not delved but if it is not reveled in first two months, then marriage stands
 42

dissolved by operation of Law at the end of thind me Three months waiting is same as Judicia

lRajai-Talaq or Bain-Talaq

As aformald, Tag is the divorce by Husband. It is wither Tal-Sunnar Talay-ul-Bida, Talaque

Sanna are the Revocable Divorce cominonly referred to as the Raji Hajar Tala Whereas the

Talayal Bidat are the icable forms of divorces and commonly referred as the Bain Talag The

Form of Talaq will determine as to whether it in Bain Talaq or Raja Tala Bain Talaq always

operates Immediately and esults into complete dissolution of manage. Bain Talag may beeffected

by words addressed to the le clearly or clearly indicating an lomanon to disolve the marriage

All rales, coralings inchading Shayaru Bano and limitations applicable so Talay-us-Sunna and

Talag ul-idat wil be applicable respectively to Rajai Talaq and Bain Talay

Contingent Divorce

Aefore encroaching upon the subject, it is beter in bear in mind the difference between

twoAefore encroaching upon the subject, it is beter in bear in mind the difference between two

terms, betingent and consitional While contingent means depending upon certain definite event,

for example, if I come hack from England or “I get through the law examination, etc. Whereas,

the term conditional sarely means depending upon the fulfillment of some stipulated condition,

like, you give me your back horse, I will give you my white elephant. Thus, if hushand executes

in writing that he will provide maintenance (within specified time) and if he failed to do so, the

writing will operate as divorce. It was held that on husband’s failure to provide stenance, the

writing took effect of a divorce. Further, a repudianson of marriage is impermissible if it is

qualified by option. Thus, if a husband were to say that he gives Talag but reserved his right to

evoke it in three days, it is held that the option of three days inoperative but the Talaq is

operative. While Sunnis/Hanafis recognize the contingent divorce, Shias do not cognize it. Shias

also ingard all conditions options as absolutely void. In any case raling given, Shayaru Bano

shall prevail
 43

Talaq under Compulsion or Influence of Intoxication

The divorce pronounced under compulsion or under intoxication is not valid under Fatimid, th

Ashari

Or Shall Law. But VALID UNDER HANAR LAW his explained that in Turkey/under the

Sultans, by a well understood common a wide who wished to get rid of dissolate husband would

go before the Kari Quast with two irreproachable witnesses and depose that her husband had

divorced her when drunk allegation which he would not be in a position to deny This provision

of law can be taken advantageOf even by the present day Muslim women. But for taking

advantage of this provision, in India, a Muslimn will have to file a declarmory it under the

provisions of the Specific Relief Act for seeking declaration that her husband under the influence

of intoxication had pronounced TALAQ and can obtain a Declaration that the Hashand had

pronounced Tulay and by reason of which their marriage would stand dsolved. The ruling gives

Formalities Giving Talaq

The Holy Quran in Chapter IV. Verse 34 and 35 says: And if he fear a breach between them

twai8in (the man and woman) appoint an Arbitrator from his folk and an Arbitrator from her

folk. If they desire amendment, Allah will make them of one mind. From this Quranic

Injunction, it is abundantly clear that whatever may be the form of divorce (Talaq-us-Sunna

(Rajai Talaq) or Talaq ul-Bida (Bain Talaq)) the formalities of arbitration is a must. The Full

Bench of Bombay High Court, therefore, has held that divorce is nullity if nox preceded with

arbitration, supported by Supreme Court ruling. Terminology used in giving divorce must

indicate clear and unambiguous intention to dissolve the marriage. They may be expressed Thou

art divorced" or "I have divorced thee" or I have divorced so and so for ever and rendered her

Haram for me. In any case, it must be clearly noted that Talaq has to be Pronounced.

"Pronounced means to 'proclaim or to utter formally. The plea in the Written Statement or some

affidavit filed in some civil Court does not amount to pronouncing the Talaq. The Bunden of
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Proof that Talaq was pronounced before two Muslim Witnesses is upon the Husband if Wife

disputes that she was legally divorced by her husband.

Capacity to Give Talaq

There are four conditions essential to pronounce a valid Talag

(1) usband should have attained the age of majority

(i) Husband should be sane or of sound mind

(ii)Husband should act of his free will,

(iii)There must be distinct intention to dissolve the mariage tie.

((iv)A boy who is minor and a person who is insane cannot give divorce even through their

respective guardians.

In case of an insane person the Judge can make a decree to dissolve the tie

Divorce when Effective

In Talaq-ul-Bida or Bain Talaq, the divorce takes effect forthwith, immediately. Whereas in

case Of Talaq-us-Sunna or Rajai Talaq, divorce takes effect after stipulated time and does not

take Effect immediately inasmuch as there is a waiting time for it to take effect.The apex

Court in one another latest case’4 was called upon to consider the case under Section 125 of

Cr. P.C. for maintenance by wife. The Husband in his Written Statement before the Family

Court vaguely made certain generalized accusation against his wife. It was stated that wife was

Sharp, shrewed, mischievous and had brought disgrace to the family. Therefore, he had given

Talaq but no particulars of alleged Talaq were given. Except examining him, husband did not

lead Evidence in proof of Talaq. In an affidavit in some other case before the civil court, the

husband Had made such a statement but the said affidavit was not found on the record of the

Family Court. However, the Family Court accepted the contention of the husband that he had

given Talaq to his Wife. The apex Court head that merely taking a plea in the Written

Statements that he had given Talaq to his wife would not have the effect of Talaq. Talaq to be
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effective, it is necessary to have ‘pronounced’ in the manner laid down under the Personal

Law. ‘Pronounced’ means to ‘proclaim’ Or to ‘utter formally.’ The fleain the Written Statement

or some affidavit filed in some civil Court Does not amount to pronouncing the Talaq. The

Ahsan form of Talaq is effective on the expiration of third

period of Iddat. The Hasan form of Talaq is effective on third pronouncement. Talaq-ul- Bidat,

is effective from the moment the Talaq is pronounced or the execution of the Writing, or the

“Talaq Nama” or the Bill of Divorcement. The Full Bench of the Bombay High Court has

HELD’ that the Bill of Divorcement by itself cannot dissolve marriage because it is

Necessary that the divorce should have been given for sufficient cause. It must have been

Evidenced before the witnesses who are Muslims and if it is before non-Muslims then it is

invalid In law. The full bench also held that the wife is not deemed to have been divorced

(atleast) from The date of Written Statement in which husband takes the plea that he had

already given Talaq to His wife on earlier date to the filing of the Written Statement. The

ruling of the full bench thus Indicates that if husband has already given Talaq on earlier date,

he must prove the factum of that Divorce by leading evidence before the Court. The full bench

thus is not in favour of Court taking It to be granted that Husband must have given divorce, if

not from the earlier date atleast from the Date of his statement in the written statement. The

ruling given in Shayara Bano will be eloquite

ISLAMIC PRESPECTIVE OF TALAQ-UL-BIDAT

Islam in general regards divorce as abhorrent and reprehensible act. Talaq-ul-bidat is a

disapproved form of divorce and is considered by the Islamic jurists as an innovation within the

fold of Shariat. Though, Talaq ul Bidat has found its place in some books of Hadees, but

generally, it's considered to be against the teachings of Islam, which has a paramount importance

for humanity. The Prophet of Islam never approved a talaq in which, there was no opportunity

for reconciliation. During the period of Prophet; if a person pronounces one divorce against his
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wife and then repeats the divorce a second or even third time simply to emphasize the first

pronouncement and not with a view to effect a Mughallazah or final divorce, it was open to

himto explain his intention and to take back his wife

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CONCLUSION

We live in India, a patriarchal society in which women are brought up with the fact that their

main goal in Life is to be a good wife and imagine a situation in which your whole world breaks

down in front of you Just by saying a word repeatedly 3 times, you are left with god knows how

many children, no education, No choices, no future, no maintenance, and eventually no means to

live. We talk about equality, we talk About women empowerment, we say that women are no

less than a man but is it actually reality? It may Be a bit easy for people who are well educated,

who know their rights and remedies, if not given fair Chances but what about those women who

never went to school, who were married at the age of, maybe 13, who is a mother of 2 kids at the

age of just 18 and now her only dream in life is to live happily with Her family and then

suddenly she has no clue of what wrong she did and been thrown out of the house to Face a more

difficult world. This is not a universal reality there are exceptions, it is not the man who is

Always on the wrong side but all that we are asking for is equality, whatever the situation may

be equality Is the basis of all. At least one deserves a reason; everyone has a chance to know- the

right to be Answered.

Triple Talaq is in practice from centuries but injustice from centuries can never become a justice.

A full Stop is always required; there is always a need for amendment. We are talking about it,

this is the first Step, the apex court by setting aside the practice has taken the second step and did

provide justice to all Those who have been suffering from so long. However, there are still a

number of women who are Suffering. Even after the apex court passed this judgment the All

India Muslim Personal LawBoard has Confirmed cases of instant Triple Talaq. This is because

of the lack of proper execution and legal Knowledge. Maintenance rights and all other rights

should be given to the Muslim women as well and one

Day these little steps will take us to our destination of a Uniform Civil Code.
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The latest rule is truly an encouragement in the women empowerment movement in India. The

court has Given progressive thoughts over the personal law in society. The abolishment of Triple

Talaq will deny Discrimination and injustice from Muslim women’s lives in the future. Society

should also come forward Against this social evil to abolish this practice, Because

women’sempowerment is very essential for the

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BIBLIOGRAPHY

• Advocatespedia, TALAQ-UL-BIDA, 18TH April,2020 (p 1)

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en.

• Aayushi Dubey, Talaq-ul-biddat, December 28, 2019

• I.A. Saiyed, Family Law, Himalaya Publishing House, 4th Revised Edition, 25th December

2018 (p

56,56)

• Advocatespedia, TALAQ-UL-BIDA, 18TH April,2020 (p 2,3,4)

Bidat#:~:text=Talaq%2Dul%2Dbidat%20is%20an,or%20to%20some%20extent%2C%20forbidd

en

• Shayara Bano vs Union Of India And Ors. Ministry Of … on 22 August, 2017

• Dagdu Chotu Pathan vs. Rahimabi Dagdu Pathani, 2000 (3) Mh. L.J. 602,

• Advocatespedia, TALAQ-UL-BIDA, 18TH April,2020

.A. Saiyed, Family Law, Himalaya Publishing House, 4th Revised Edition,
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