ANALYSING VARIOUS FACETS OF TALAQ-E-HASAN

SYMBIOSIS LAW SCHOOL, HYDERABAD

SUBMITTED BY

OISHI SEN
19010323076
DIVISION A
2019-24

IN
FEBRUARY 2021

UNDER THE GUIDANCE OF

MR. HAMZA KHAN
ASSISTANT PROFESSOR
SYMBIOSIS LAW SCHOOL, HYDERABAD
 ABSTRACT

Islamic laws have been liberal in their approach and a closer look to the subject reveals that its
concept, although developed centuries ago, have not become redundant in the present world.
Islamic laws have set forth an example of finding balance between traditions and influx of
changing values with changing times.

This paper focuses on the aspects of Talaq-e-Hasan, which is one of the approved and widely
practiced forms of talaq or divorce in Islam. Its holistic approach can be very well understood
from the various texts which claim that although the Prophet, on whose leadership and guidance
Islam has evolved, dearly proclaimed divorce to be hated by Allah, yet provided two moratl
being, husband and wife, a way out if their marriage has fallen through.

The laws of divorce in Islam have been discussed in the Holy Quran and every other source upon
the topic has been derived from the same. This paper aims to elaborate upon Talaq-e-Hasan,
relevant verses of the Quran, its procedures, post-divorce arrangements, the misunderstandings
that have prevailed due to misinterpretation and aims to shed light on the same.

INTRODUCTION

The wide diversity of the Indian society has had set its themes and institutions in the legal history
of India. Islamic law can be very well said to have its roots in the 17 th century wherein the
regulations of law required that the personal laws of Hindus and Muslims will govern them in
matters of “marriage, inheritance and succession...” respectively. 1 The followers of Islam
constitute the Muslim community which is among the widely followed religions in the world.
Governed by the Muslim law, this community, like every other religious community, has its own
set of beliefs and practices of nikah (marriage) and talaq (divorce), which is largely derived from
the preaching laid down in the Holy Quran. The Holy Quran is believed to be the very words of
God that were spoken to the Prophet.2 The Holy Quran is the primary source of Islamic law 3, i.e.,

1
Mir Mehrajuddin, Divorce under Islamic Law, Cochin Law Review (1985),
https://msbrijuniversity.ac.in/assets/uploads/newsupdate/Divorce%20under%20Islamic%20Law.PDF.
2
Asaf A.A Fayzee, Outlines of Muhammadan Law 10 (5th Ed. 2008).
3
Ibid.
it is the primary source upon which the other three sources of Islamic Law- Hadith. Ijma, Qiyas-
are derived from.4

The stance of marriage in Islam cannot be said to be either purely a civil contract or purely a
sacred union. Thus marriage in Islam can be said to be in the nature of both a civil contract and
sacred bond.5 Islam, thus, stresses on a marriage’s preservation and constitutes that it is
important to prevent breaking of the marriage contract. However, Islam has always had a
practical outlook which can be inferred from its recognisation of the necessity of divorce, and
hence the concept of divorce, although only as a necessary evil which must be resorted to only
when the couple is in utter disarray and all possible methods of reconciliation have been
exhausted. The Prophet denounced it as a necessary evil by pronouncing that “of all the
permitted things divorce is the most abominable with God.” 6 Among others, Talaq is one of the
methods of pronouncing divorce which places the Muslim husband in a position to divorce his
wife unilaterally and without the interference of court, by pronouncing the express words of
“talaq”. There is reference to Talaq is three Suras- in Sura II, Sura IV and Sura LXV. 7 It must be
noted that there is not much difference between the various forms of talaq except the manner in
which they are pronounced and to the extent they are perceived as acceptable in Muslim
jurisprudence.

In this paper, although the focus is on Talaq-e-Hasan, it is very much important to firstly explain
the various forms of talaqs and their differences in order to have a clear understanding of the
concerned topic. Most Islamic nations have revoked the practice of Talaq-e-bidaat or instant
talaq and have legally recognised Talaq-e-Hasan as valid form of divorce by talaq.

The author has incorporated doctrinal method of research in this research paper. The said
methodology involves study of the concerned matter from books, journal articles, research
papers, statutes, enactments and other secondary sources. The author has referred to such
secondary sources, related case laws, judgements and materials available online to analyse the
topic and its related sub-topics.

4
Masroor Ahmed v. State NCT Delhi, AIR 2007 Del 1357.
5
Furqan Ahmad, Understanding the Islamic Law of Divorce, 45 ILI 484, (2003)
https://www.jstor.org/stable/43951877.
6
Pathuri Venkata Subhramanyam, Talaq and Shariath Law, International Journal of Advanced Research and
Development, https://www.ijarnd.com/manuscripts/v2i11/V2I11-1151.pdf.
7
Shayara Bano v. Union of India, (2017) 9 SCC 1.
The objectives of this paper are as follows:-

 This paper aims to deal with the various aspects of talaq with special reference to talaq-e-
hasan.
 To understand the meaning of “talaq” and its origins and practices as laid down in
various sources of Islamic Law and dealt in judicial pronouncements from time to time.
 To clearly distinct Talaq-e-Hasan from the other types of talaqs, this paper will draw a
proper chart as to the two broad categories of Talaq and its branches, manner/ procedure
in which they are ought to be pronounced.
 To analyse the Islamic Schools of thoughts with respect to Talaq, with special reference
to facets of Talaq-e-Hasan.
 To understand why Talaq-e-Hasan is considered as ‘proper’ form of Talaq and why it is
widely accepted in various Islamic nations and to shed light on the confused notions of
people on the different forms of talaq.

The following research questions will be dealt herein:-

 What is meant by talaq in Islamic Law?

 What are the various kinds of talaq and how they are dealt with in the sources and
schools of Islamic?
 What makes Talaq-e-Hasan a ‘proper’ form of Talaq and what is the procedure to make
this type of Talaq a binding one?
 What steps must be taken before pronouncing Talaq and payment of haq mahr after
Talaq?
 What do various judicial pronouncements say about the validity of talaq-e-hasan in India
and what all countries have adopted talaq-e-sunnat over talaq-e-bidaat and why?

TALAQ, ITS TYPES AND ACCEPTANCE IN ISLAMIC JURISPRUDENCE

Talaq-e-Hasan is a sect of Talaq in Islamic Law. It differs from other forms of talaq in the
manner of its pronouncement and the perspective of Islam in respect to divorce. This chapter
discusses that although Islam has accepted the probability of divorce and has also preserved the
husband’s right to declare divorce unilaterally, it also has laid certain grounds in an attempt to
reduce arbitrary use of this provision. Along with discussing the procedural requirements of
Talaq required by different schools of thoughts, this chapter would classify the types of divorce
allowed in Islamic Law, with emphasis on Talaq and its types.

Islamic Perspective of Divorce- A Brief Study on the History of Divorce in Islam

In Islam, the institution of marriage is in essence a social contract with regards to the manner of
its pronouncement vide ijab and qubool. Marriage in Islam is a fairly simple procedure requiring
one word from the bride and the other from the bridegroom, which is in the nature of offer and
acceptance, i.e., ijab and qubool. A marital alliance in Islam also retains the belief of a bond is
sanctity and therefore a marital bond is to be respected and kept unbreakable. However, divorce
is natural collateral of marriage or it can be said if a marriage goes on the wrong tracks, a divorce
is a viable option, however, Islam dictates that divorce must be the last resort. 8

The Prophet abhorred divorce and the same is well-understood from his preaching, in one of
which he dictates, “[o]f all things which have been permitted divorce is the most hated.”9 To
clearly understand the nature and concept of divorce in Islam, it is impertinent to understand the
historical background of the development of the concept of divorce in Islamic law. Initially the
power to divorce predominantly resided with the husband and the wife had no stand to give
divorce for any reason whatsoever.10 Divorce was thus often arbitrarily given by the husband.
For instance, under the early Hebraic law, a husband did not even need proper reasons to divorce
his wife and could pronounce separation for the slightest inconveniences that made her
disagreeable to him and there were only few or no check on such arbitrary use of power by the
husband.11 Among the ancient Roman and Athenians too, the husband did not need any reason to
divorce the wife.12 Before the advent of Islam in Arabia, divorce was used as a mode of torture
on women wherein the husband could divorce the wife as per his whim and would often paint the
wife to be of questionable character, i.e., accuse her of committing adultery, and thereby claim to
be free of any sort of legal responsibility towards the wife. 13 Moreover, they would divorce
frequently and then null the divorce whenever they wished. Such harassment of women, moral

8
Furqan Ahmad, Understanding the Islamic Law of Divorce, 45 ILI 484, (2003)
https://www.jstor.org/stable/43951877.
9
Abu Daaud, Sulaimaan bin al-Ashath Ashaiastaanee, (1988).
10
Lawal Mohammed Bani, Dissolution of Marriage (Divorce) under Islamic Law, 42 IISTE 138, 138 (2015)
https://core.ac.uk/download/pdf/234650383.pdf.
11
Supra note 13.
12
Ibid.
13
Supra note 15.
and social injustice was resolved by the Prophet. The evolution of Islam brought about a new era
in legislation and presented divorce as an optional and logical sequence of marriage, while
always stressing upon the permanence of a sacred bond such as marriage as well as ensuring
freedom of both parties to the marriage and keeping in mind special circumstances wherein
divorce is the only way out. Although it did not take away the unilateral power of the husband to
pronounce divorce, it imposed several reins and checks to check arbitrary and whimsical exercise
of the same, for example, when and in what circumstance divorce can be pronounced, number of
times of pronouncements, mandatory maintenance of divorced wife. 14 Islam laid down that
divorce must not be a means to trouble women or to harm them, but must only be for valid
reasons, necessary circumstances and on justified grounds.15 In the case of Yousuf v.
Swaramma,16 the eminent Justice Krishna Iyer held that:- “The view that the Muslim husband
enjoys an arbitrary unilateral power to inflict instant divorce does not accord with Islamic
injunctions…”

It was further illustrated that when the Prophet’s wife, Asma, asked for divorce, he granted the
same as per her desire.17 Thus, the Prophet himself set forth an example that when the sanctity of
marriage and the home that is built upon the same, falls off, divorce is permissible in Islam.

- Classification of Divorce in Islamic Law

Islam provides many ways of dissolving the marriage18-

(a) Extra-judicial divorce:-

(i) By the husband
 Talaq (repudiation orally/in writing)
 Ila (vow to not have sexual intercourse with wife for 4 months)
 Zihar (constructive divorce, i.e., husband declares his wife to be like his
mother/sister and does not cohabit for 4 months)
(ii) By the wife

14
The Holy Quran, Chapter II: Verse 222, 223, translated by Yusuf Ali, available at
https://www.pdfdrive.com/english-translation-of -the-noble-quran-by-yusuf-ali-e46652270.html
15
Ahmed A. Galwash, The Religion of Islam, 118 (1945).
16
Yousuf v. Swaramma, AIR 1971 Ker 261.
17
Furqan Ahmad, Understanding Islamic Law in India: An Assessment of Contributions of Justice V.R. Krishna
Iyer: A Tribute, 57 ILI 307, (2015) www.jstor.org/stable/44782785 .
18
Supra note 5.
  Talaq-e-Tafweed (divorce by delegation)
 Khula (Redemption)
(iii) By Mutual Consent
 Khula (Redemption)
 Mubarat (Mutually freeing from marital tie)

(b) Judicial divorce:-

(i) Lian (Mutual censure)
(ii) Faskh (Judicial revocation)

Talaq and Types of Talaq in Islamic Law

In this paper, the author’s primary focus is on Talaq-e-Hasan, and therefore before proceeding
with the same, it is essential to understand the concept of talaq in Islamic law and the types of
talaq that are practised.

The word talaq is a verbal noun derived from the Arabic verb ‘talaaq’, 19 which literally implies
untying or freeing from a knot, which in this context, is the marital bond. Talaaq, in the Arabic
tongue, is mostly used to mean releasing (animals) from its bonds 20, which when applied to the
concept of divorce, thus implies freeing a woman from the bonds of marriage by the husband. A
Muslim man, i.e., the husband, reserves the unilateral power to pronounce talaq with or without
the consent of the wife.21 Therefore, when a husband chooses to exercise his power to declare
divorce to his wife, this is technically called talaq. Talaq can be easily obtained and the
procedure for the same is remarkably similar for both the Sunni and Shia, differing only in few
details. Sunnis accept talaq in express, implied, contingent, delegated and even in constructive
form, whereas, the Shias accept only the express and delegated forms of talaq.22

Further, this method of divorce can be broadly classified into23-

19
Lawal Mohammed Bani, Dissolution of Marriage (Divorce) under Islamic Law, 42 IISTE 138, 138 (2015)
https://core.ac.uk/download/pdf/234650383.pdf.
20
Ibid; Supra note 7.
21
The Changes in the Law of Divorce Under The Muslim Law, MSBU,
https://msbrijuniversity.ac.in/assets/uploads/newsupdate/LawofDivorce.pdf.
22
Ibid.
23
Supra note 22.
 (i) Talaq-e-Sunnat (Revocable) is considered to be the acceptable form of talaq and is
based on the Prophet’s tradition, i.e., Sunna. It is further classified into-
 Talaq-e-Ahsan (most proper form)- Talaq is pronounced once during tuhr,
followed by iddat period.
 Talaq-e-Hasan (proper form)- Talaq is pronounced thrice in 3 tuhrs, followed
by iddat period.
(ii) Talaq-e-Biddat (Irrevocable) is the disapproved form of talaq and is widely referred
to as triple talaq. Talaq is expressly pronounced by the husband thrice in a single tuhr
in a single sitting.

In all, there are 3 different ways of pronouncing divorce. Talaq-e-Hasan falls under the category
of Talaq-e-Sunnat and is perceived as the ‘proper’ or accepted form of talaq; it is one of the three
forms of ‘talaq’, which requires pronouncement of talaq by the husband over the course of three
tuhr of the wife. The forms of Talaq-e-Sunnat have to be followed by their respective procedures
and are recognized widely among all schools of Islam with slight modifications or so. It must
also be noted that also Islam emphasises equal rights of husband and wife in matters of divorce,
it also restrains the exercise of such a right. Thus the Islam law of divorce is one of its criteria
that is misunderstood the most. It can be very well judged by the fact that majority of the people
are of the opinion that the procedure of talaq-e-biddat is the only mode of pronouncing talaq by a
Muslim husband and thus that the landmark judgement of the Hon’ble Supreme Court in Shayara
Bano v. Union of India24 has held talaq illegal altogether.

Essentials of a valid talaq25

(i) Capacity- Any Muslim man of sound mind and of age of puberty is capable of
pronouncing talaq.
(ii) Consent- Free consent of husband is necessary for talaq, i.e., he needs to be sober and
not under influence of insanity.
(iii) Clear words- Specific words of ‘talaq’ or ‘I divorce thee’ is necessary for a valid
talaq.

24
Supra note 7.
25
Pathuri Venkata Subhramanyam, Talaq and Shariath Law, 21 International Journal of Advanced Research and
Development 11, https://www.ijarnd.com/manuscripts/v2i11/V2I11-1151.pdf.
 (iv) Presence of wife and notice of divorce- Presence of wife is not mandatory and neither
is giving notice of divorce. However, under amended law, notice has been made
mandatory (discussed later in the paper)
(v) Reconciliation- Attempts to reconciliate between the parties is mandatory for a valid
divorce. Only when such attempt fails, divorce can be granted.
(vi) Witnesses- under Shia law, witnesses are not mandatory, but under Sunni law, talaq
needs to be pronounced before two witness, both men or one man and 2 women.

FACETS OF TALAQ-E-HASAN & ANALYSIS OF PERSPECTIVES OF ISLAMIC

SCHOOLS

The accurate procedures of Talaq-e-Hasan and allied procedures which constitute a valid Talaq
will be explained in details in this chapter. It will also be explained why Talaq-e-Hasan is
regarded as ‘proper’ form of talaq while Talaq-e-Ahsan is regarded as ‘most proper’ form. There
must necessarily be attempts of reconciliation between the couple by the respective families, and
divorce must be resorted to only as the last option. This chapter also talks about successful
reconciliation between the parties during iddat period (Talaq-e-Ruju), providing the wife her
rightful amount of mahr and also whether remarriage is allowed once talaq is given. This
unilateral power of divorce given to the husband might also have drawbacks and repercussions in
a patriarchal society. All of the above will be elaborated under the following sub-headings-

Talaq-e-Hasan: Proper Procedures and Perspectives

Talaq-e-Hasan falls under the ambit of Talaq-ul-Sunnat and is therefore one of the approved
forms of talaq. Talaq-e-hasan is considered as proper form of talaq whereas talaq-e-ahsan is
considered as the most proper/ most acceptable form of talaq. This is because, although the
manner of pronouncement is similar, in the Ahsan form, the heinous words of ‘talaq’, which is
much hated in the Islam, need to be pronounced only one whereas in the Hasan format, talaq
needs to be pronounced thrice.

Vide these forms of talaq, the Prophet attempted to put an end to the barbaric pre-Islamic
practice which made women chattel at the disposal of their husbands. By the rule of
irrevocability after the third pronouncement, the Prophet ventured to clearly indicate that the
practice of divorcing and taking back the wife time and again and thereby inflicting mental and
emotional pain indefinitely, cannot be continued under the Islamic law. Thus, if a husband
wishes to restore his marriage, he must do so in the two periods during which he could has the
opportunity to reconcile, and if not, the third pronouncement is the final bar to restore the
marriage.26 This spirit or intention is clear from the following Quranic excerpt: “Then, when they
have reached their term, take them back in kindness or part them in kindness.”27

The procedures for divorce vide talaq-e-hasan are as follows:-

(i) Talaq-e-hasan involves three pronouncements of talaq in three consecutive tuhrs, i.e.,
the period of purity which is considered to be the period between two menstruations
of the wife.
(ii) One declaration of talaq must be made in one tuhr and another declaration in the nest
tuhr and so on till 3 declarations of talaq are made.
(iii) If no revocation is made after the first and second declaration, the husband must make
the third pronouncement in the next tuhr.
(iv) After the third pronouncement, the talaq is binding and irrevocable, after which the
wife must follow the iddat period. If the wife is pregnant, iddat is to be observed till 9
months or until child birth.
(v) Ideally, the pronouncements must be made in 3 successive tuhrs to be an effective
talaq.28

For the purpose of illustration, we may consider a husband H who desires to pronounce talaq to
his wife, W, and resorts to the method of talaq-e-hasan for the same. He must follow the
following procedure to ensure an effective talaq-

- The first talaq would be pronounced by H during the tuhr of W provided they have not
had conjugal relations during that period of purity. Thus the first talaq is complete.

Now, talaq-e-hasan is a revocable form of talaq. Following the first pronouncement, the husband
has a choice to revoke the same and resumes cohabitation inter alia restores marital relations by
express word or clear actions in this period of purity.

26
Shayara Bano v. Union of India, (2017) 9 SCC 1.
27
The Holy Quran, Chapter LXV: Verse 2, translated by Yusuf Ali, available at https://www.pdfdrive.com/english-
translation-of -the-noble-quran-by-yusuf-ali-e46652270.html
28
Supra note 30.
 - If the first talaq is not revoked, and there is no cohabitation during that period of puberty,
H must pronounce ‘Talaq’ for a second time in the next tuhr.

This talaq can again be revoked by express words or conduct.

- Then the next tuhr is entered into, wherein following no sexual intercourse in this period,
H can pronounce ‘talaq’ for the third and final time after which the talaq is binding and
irreversible.

Thus the marriage of H and W would be dissolved after the third pronouncement and sexual
intercourse between the two would be illegal. Iddat must be observed by the wife for a period of
90 days, i.e., 3 menstrual cycles. 29 Iddat is the period during which the wife cannot remarry and
this is to ensure the father of the child should the wife get pregnant.

Attempts at Reconciliation, Remarriage and Haq Mahr

For a valid talaq, there must be attempts to reconcile between the parties, i.e., the husband and
wife. Verse 35 contained in Section 6 of Sura IV provides for settlement of family disputes. It
provides for appointing two arbitrators, one from the husband’s family and the other from the
wife’s family. They must help the parties to explore any possibility of reconciliation.

“35. If ye fear a breach between them twain,

Appoint (two) arbiters,

One from his family, and the other from hers;

If they wish for peace, God will cause their reconciliation”30

In Shamim Ara v. State of UP31, the Hon’ble Supreme Court clearly stated for a talaq to be valid,
the grounds for divorce should be justified and it must be preceded with attempts of
reconciliation between the husband and wife. The process must take place before two members,
one from the husband’s side of the family and the other from the wife’s side of family, who must

29
30
The Holy Quran, Chapter IV: Verse 35, translated by Yusuf Ali, available at https://www.pdfdrive.com/english-
translation-of -the-noble-quran-by-yusuf-ali-e46652270.html
31
Shamim Ara v. State of UP, AIR 2002 SC 3551.
help them to reconcile. If the reconciliation fails, the parties can dissolve the marriage and
ideally it must be done without any publicity or humiliation to either party.32

Verse 233 of the Holy Quran33 provides for regulations amidst an ongoing divorce and primarily
applies to the safeguard of the children involved in such divorce cases, wherein some definite
rule is desired so as to ensure that children do not become victims on account of bitterness
between divorced parents. The language of the verse is generalised and therefore the edict is
interpreted to mean that it applies to the mother and father equally to fulfil their responsibilities
towards fostering their child.34

A divorced couple is allowed to remarry in Islam. A husband may choose to reconcile with his
ex-wife during the iddat period in a process known as talaq-e-ruju and may also take her back
before the iddat period lapses.35 Verse 230 in sura II recognises the permissibility of
reconciliation after 2 divorces, however, if, after the irreversible pronouncement of ‘talaq’, there
is no ruju and the divorced couple cannot remarry unless, the wife marries someone else (after
observing the iddat period) and after her marriage with the other person has been dissolved due
to divorce or death.36

Verse 231 in section 29, Sura II37, that a man who takes back his wife after two divorces must not
pressurise her to prejudice her rights in any manner. Furthermore, remarriage must be on fair and
equitable terms, wherein both the husband and wife must respect one another’s responsibility and
lead an honourable life. The Quran dictates that a husband must take back his wife on equitable
terms or set her free with respect and kindness.38

Islamic law provides for specific obligations on part of the husband to pay maintenance and
dower to the wife so as to ensure he does not shrug responsibility of looking after his wife after
divorce. Verse 34 casts a duty on men to protect and provide for their women, provided that they

32
Ibid., Supra note 34.
33
The Holy Quran, Chapter II: Verse 233, translated by Yusuf Ali, available at https://www.pdfdrive.com/english-
translation-of -the-noble-quran-by-yusuf-ali-e46652270.html.
34
Ibid.
35
The Islamic Sharia Council, https://www.islamic-sharia.org/downloads/talaq/ (last visited April, 20, 2021).
36
The Holy Quran, Chapter II: Verse 230, translated by Yusuf Ali, available at https://www.pdfdrive.com/english-
translation-of -the-noble-quran-by-yusuf-ali-e46652270.html.
37
The Holy Quran, Chapter II: Verse 231, translated by Yusuf Ali, available at https://www.pdfdrive.com/english-
translation-of -the-noble-quran-by-yusuf-ali-e46652270.html.
38
Ibid.
are loyal and obedient to their husbands.39 Verse 237 of the Quran contained in section 31 of
Sura II lays down that the dower must be returned to the wife in case of divorce 40. The instant
verse provides that if divorce happens before consummation of marriage and after fixation of
dower, half the amount that is due must be returned to the wife. The wife has the right to remit
the half that is due to her. Similarly the husband also reserves the right to remit the amount he
can deduct, and thereby pay her the whole amount.41

Unilateral power to divorce wife and its repercussions

Islam provides unilateral power to the husband to declare talaq to the wife. Although the advent
of Islam rein-checked arbitrary use of the power to grant divorce 42, it is only natural that amongst
the wide majority of its followers, there always will be some to misuse the power. Irrespective of
religion, women, who are considered inferior to men in the patriarchal society be belong to, do
not have any say if their husband would want to divorce them by pronouncing talaq. We might
consider the following situations of married women-

- Those who belong from poor social and economic background

- Those who are illiterate and are not well-versed with the technicalities of divorce their
rights
- Those who fail to produce a male heir and/or suffer miscarriage
- Those who are victims of ill-treatment at the hands of their husbands and in-laws

These are only to name a few, and refer to real life scenarios that women continue to face even
today, in the age of advancement and technology. The emotional and mental suffering in such
cases in unimaginable because a wife does not really have a say if her husband wants to divorce
her. In such scenarios, the mode of pronouncing the talaq by the husband is highly irrelevant.
What makes the scenario even more peculiar is that the presence of wife is not even an essential
criterion for a valid talaq. This clearly illustrates the absolute dominant position of the husband
in matters of talaq.

39
The Holy Quran, Chapter IV: Verse 34, translated by Yusuf Ali, available at https://www.pdfdrive.com/english-
translation-of -the-noble-quran-by-yusuf-ali-e46652270.html
40
The Holy Quran, Chapter II: Verse 237, translated by Yusuf Ali, available at https://www.pdfdrive.com/english-
translation-of -the-noble-quran-by-yusuf-ali-e46652270.html.
41
Supra note7.
42
Mir Mehrajjudin, Divorce in Islamic Law, 9 COCHIN UNIVERSITY LAW REV. 315, 317 (1985)
https://msbrijuniversity.ac.in/assets/uploads/newsupdate/Divorce%20under%20Islamic%20Law.PDF.
With reference to talaq-e-hasan, it is often misunderstood and confused with talaq-e-biddat, i.e.,
pronouncing talaq in a single tuhr.43 Moreover, there is further confusion with respect to talaq-e-
hasan as to whether talaq has to be pronounced in successive tuhrs. Many scholars contend that
such a view is incorrect.44 Moulana Ashraf Ali Thanavi, the eminent Indian Muslim jurist, has
explained the correct legal position in this matter. The following excerpt must be referred to-

“A person pronounces a revocable (raji) talaq. He then reconciles and resumes cohabitation.
Two or four years later, under provocation he once again pronounces a revocable talaq. On
recovering from provocation, he again resumes cohabitation. Now two talaqs are over.
Hereafter, whenever he pronounces a talaq, it will be counted as the third talaq , which will
dissolve the marriage forthwith, and should a remarriage be desired by the parties necessitate
halala (inter-mediatory marriage).”45

From the above excerpt, it might be concluded that there is no specific timeline within which
talaq-e-hasan must be covered in. Also that, the husband would also reserve ways to take the
wife back, involve sexual intercourse with her, potentially mistreat her and keep her on the hook,
and thereafter divorce again as he pleases. Such “legal position” as described, brings one to
question whether this serves the purpose or the intent with which the Prophet had embarked to do
away with social injustice to women for such a practice would only elevate the suffering of
women.

Ideally, talaq-e-hasan must be pronounced in three successive tuhrs to make the process smooth
and less painful to either party involved.

TALAQ-E-HASAN AS A PREFERRED MODE OF TALAQ

Talaq-e-hasan, as a sect of Talaq-ul-Sunnat, is a preferred mode of talaq in Islamic law. It must

also be noted that Talaq-e-Hasan spans span over a period of 6 months in all (if talaq is
pronounced in 3 successive tuhrs, followed by iddat period), thereby giving ample time to
reconcile between the parties. Talaq-e-hasan is often confused with Talaq-e-biddat. However,
with the advancement of time and women empowerment, approximately 23 countries, including
India, have banned talaq-e-biddat, while talaq-e-hasan still prevails. However, this distinction is

43
Supra Note 22
44
Ashraf Ali Thanavi, Bahishti Zewar, IV Rule 3 (1987).
45
Ibid.
yet not clear to the masses. In Masroor Ahmad v. State (NCT Delhi) 46, the Delhi High Court
reached to the conclusion that although triple talaq is permissible, it is sinful as per Quran.

India

A survey of the application of divorce as per Islamic law shows that, for a very long time, the
judiciary has been stoic and indifferent in realising the true essence of the law of Islam. In the
pre-independence era, the British courts had wrongly judged and set forth the example that a
Muslim man can divorce his wife as per his whim and does not require any reasons of
justification.47 A decision passed in 1869 in the case of Ibrahim Molla v. Enyayatur Rahman 48
have held the validity of talaq pronounced under the influence of intoxicants, compulsion and
duress, thus implying that India used to follow the staunch Hanafi law of ‘unintended divorce’.49

Post-independence, a remarkable decision of the Gauhati High Court is worth mentioning since it
described at length and upheld the true nature of divorce in Islam. 50 The Chief Justice of the
Gauhati High Court held up the letter and spirit of law of Islamic divorce in its true sense. 51

This debate reached its peak in April 1994 when a judge of the Lucknow Bench at the Allahabad
HC held triple talaq or talalq-e-biddat to be unconstitutional and illegal as per Article 372 of the
Constitution and Section 2 of the Shariat Act, 1937. 52 The judgement came to be known to be
highly controversial. However, years later, the Supreme Court affirmed the same controversial
judgement and held triple talaq to be unconstitutional and illegal in the renowned case of Shayra
Bano v. Union of India.53

India’s Neighbouring Countries and other Islamic Nations

Egypt was the first country to take the vital step of declaring triple talaq invalid. It specifically
provides for 90 days procedure to be followed before obtaining a divorce legally. Iraq, Jordan,
Kuwait, Libya and the other Arab nations followed suit. Algeria, vide its amendment of Code of
46
Supra note 4.
47
Ahmed Kasim v. Khatoon, (1931) ILR 59 Cal 833, Sarabai v. Rabiabai, (1906) ILR 30 Bom 537, Aisha Bibi v.
Kadir Ibrahim, (1910) ILR 33 Mad 2.
48
Ibrahim Molla v. Enyayalur-Rahman (1869) 4 Beng LR.
49
Supra note 15.
50
Mst Ruki a Khatun v. Abdul Khaliq, (1981) 1 Gau. L.R. 375, Ziauddin Ahmad v. Anwar Begum, (1981) 1
Gau.L.R. 358.
51
Ibid.
52
Rahmatullah v. State of U.P, (W. P. No. 43 of 1993), Khatoon Nisa v. Slate of U P., (W.P. No. 57 of 1993).
53
Supra note 7.
Family Law in 2005, has permitted divorce only by a judgement of court and also mandatory
reconciliation.54

The countries which have abolished talaq-e-biddat can be broadly classified into sub-continental
nations, Arab nations and South-east Asian nations. This paper would briefly discuss some of the
countries from the above classification.

Pakistan, Bangladesh, Afganistan and Sri Lanka have banned triple talaq as well. The Marriage
and Divorce (Muslim) Act, 1951 was amended in 2006, following which triple talaq has been
banned. A husband wanting to divorce his wife has to give notice to a qazi (Islamic judge) who
would then institute reconciliation procedure between the husband and wife. 55 In case of
disagreement, the husband can divorce the wife in presence of the qazi and two other witnesses.
This law of Sri Lanka has been regarded by many jurists to be the ideal law.56

RECOMMENDATIONS & CONCLUSION

It is impertinent to understand that for development of a nation and for peace and joy, it is crucial
to find a balance between traditions and contemporary values. As rightly said by Justice Krishna
Iyer, that“a deeper study of the subject discloses a surprisingly rational, realistic and modern
law of divorce.”57

It can be concluded from the findings of the paper, Islam provides neither the wife nor the
husband unchecked power and does not encourage arbitrary use of the same. Keeping in mind
the oppression faced by women, the Quran asks a husband to be wise, considerate and gentle
towards his wife, in a manner that does not injure her and treat her with mutual consideration. 58 It
is the wrong interpretation of maulvis that has misguided the people and confused people.

In any law, the test of reasonableness and soundness provide the maximum guarantee to
determine if it is a good law. India has produced some eminent jurists and scholars of Islamic

54
Code of Family Law 1984, art. 49 (Algeria).
55
Govt Mulling Law to Ban Instant Triple Talaq, HINDUSTAN TIMES (Nov. 17, 2021, 04:07 PM),
https://www.hindustantimes.com/india-news/govt-mulling-law-to-end-instant-triple-talaq-the-3-types-of-divorce-in-
islam/story-1qqvoUGVtJQehiuEjratpK.html.
56
Supra Note 24.
57
Khatoon Nisa v. State of UP. & Ors. 2002(6) SCALE 165.
58
The Holy Quran, Chapter II: Verse 222, 223, translated by Yusuf Ali, available at
https://www.pdfdrive.com/english-translation-of -the-noble-quran-by-yusuf-ali-e46652270.html.
Law such as Maulana Ashraf Ali Thanavi, Ahmad Madani, Maulana Hussain, and so on, whose
works reflected their profound thinking and true understanding of the spirit of Islamic Law and
thus can be guiding lights to educate the masses of the technicalities, rights of women and true
spirit of the Islamic law. Awareness would help in solving the discrepancies faced due to
unilateral power to grant divorce.

Following their great thoughts, a law may be passed deeming three divorces as one revocable
divorce (revocable only once after third pronouncement), which must solve much of the
discrepancies and would also preserve the Islamic notion of trying to keep a marriage intact.

A crucial task must be done to unite the practices of different Islamic schools in a manner to
enhance and work towards the betterment of women’s rights. Such unification would also be a
stepping stone to abide by the Constitution of India.

REFERENCES

- Asaf A.A Fayzee, Outlines of Muhammadan Law 10 (5th Ed. 2008).

- Furqan Ahmad, Understanding the Islamic Law of Divorce, The Indian Law Institute
(2003).
- Pathuri Venkata Subhramanyam, Talaq and Shariath Law, International Journal of
Advanced Research and Development,
https://www.ijarnd.com/manuscripts/v2i11/V2I11-1151.pdf.
- Mir Mehrajuddin, Divorce under Islamic Law, Cochin university Law Review (1985),
https://msbrijuniversity.ac.in/assets/uploads/newsupdate/Divorce%20under%20Islamic
%20Law.PDF.
- Ankita Tiwari, Triple Talaq- Counter Perspective with Specific Reference to Shayara
Bano, Indian Law Institute Law Review (2017), http://ili.ac.in/pdf/paper517.pdf.
- The Changes in the Law of Divorce Under The Muslim Law, MS Brij University,
https://msbrijuniversity.ac.in/assets/uploads/newsupdate/LawofDivorce.pdf.
- Shayara Bano v. Union of India, (2017) 9 SCC 1.
- Masroor Ahmed v. State NCT Delhi, AIR 2007 Del 1357.