Marriage is a blessing, and when this relationship is established it is meant to subsist and be lasting. It is the relationship that legalizes the sexual relationship and procreation of children. And the legal dissolution of marriage by the husband’s enunciation of the word “talaq” constitutes a formal repudiation of his wife. In the present scenario, the issue of Women’s rights in Muslim Personal Law is highly controversial. Especially in matters of divorce, maintenance, and inheritance. These topics have got much attention these days because of the unfair and unjust behavior of Muslim society with the females. Although the Indian Constitution has guaranteed equal rights and prohibited discrimination on the grounds of gender, religion, caste, creed, and place of birth still there are various practices that are based on heartless conservative culture. As we all know a large part of Muslim Personal Law is uncodified and most of the legal pronouncements are based on the ancient sources of law such as Quran and Hadith. Muslim Personal laws have given various rights to Muslim women such as the right of choice in marriage, inheritance, etc. But at the same time, there are many practices that are not in favor of Muslim women. The most prominent is the practice of divorce or “talaq”. By the means of this research article, the author tries to put a light on these unjust and unfair prevailing in even modern society. These practices not only affect Muslim Women but the whole society. This practice proves to be a taboo for modern society.
The personal law in India is a law for people of different religions and applicable according to the religion of the person. Muslim personal law suggests various solutions to empower Muslim women. But at the same time, it has some cruel practices which violate the basic rights of women. These practices not only affect Muslim women but society at large. One such practice is the practice of divorce or “TALAQ”. Talaq is the repudiation of marriage by pronouncing “talaq” 3 times by the husband. Personal laws in India and especially Muslim Personal Laws has been a major political and controversial issue and had been extensively debated. In the absence of proper codified law in Muslim Personal Lawwomen are at the much-disadvantaged position, because of the unclarity in the various interpretation of Quran. There is a dire need to change the scenario and the codification of Muslim Personal Laws, as the Muslim personal laws are based upon the old conventional thoughts of the Quran. There is a dire need to change the laws according to the needs of modern society, as these laws are highly biased towards women.
Modes of Talaq
1. Talaq by Husband:
A Muslim man who is of sound mind has the right to divorce his wife at any time by time by merely pronouncing talaq giving any reason. It may be in oral or written format. It is not even necessary that talaq has to be given in the presence of the wife but only it is to be made sure that talaq should be effectively communicated to her. Talaq pronounced in the state of intoxication is valid under Sunni law but invalid under Shia. It is further classified into the following kinds:
(a) Talaq Ahsan: It consists of a single pronouncement of talaq in the period of “tuhr” or purity i.e. when the wife is free from her menstruation cycle. It is followed by abstinence from sexual intercourse during the period of “tuhr” and iddat.
(b) Talaq Hasan: It consists of three successive pronouncements of talaq which are made by the husband during three consecutive periods of Tuhr (purity). There should be complete abstinence from sexual intercourse.
(c) Talaq-ul-Biddat: It is the disapproved form of talaq among Muslims. It is not recognized by the Shias. It consists of three successive pronouncements of Talaq in a single Tuhr and is made in a single sentence. Hence it is commonly called Triple Talaq. In the case of Shayara Bano v. Union Of India And Ors., the Honourable Supreme Court of India declared the practice of triple talaq to be unconstitutional being in violation of Article 14 of the Indian Constitution. Currently, a bill intending to ban Talaq-ul-biddat is pending in the Parliament and remains to be passed by the Rajya Sabha after having been passed by the Lok Sabha.
(d) Talaq-i-Tafweez: Muslim law permits the husband to delegate his power of giving talaq to any third person or to the wife itself. An agreement permitting the wife to pronounce divorce to herself is valid provided that the option to pronounce divorce is not absolute or unconditional. For example, a stipulation permitting the wife to pronounce talaq if the husband marries another woman.
2. Talaq by Mutual Consent
Muslim law also recognizes talaq by the mutual consent of both husband and wife. They are of two types:
(a) Khula: It is the right of divorce purchased by the wife from her husband. It means a divorce at wife’s instance in lieu of which she agrees to give some consideration to the husband for her release from the marriage tie. In such a case, the husband shall have the right to sue the wife for payment of consideration agreed upon.
(b) Mubarat: It means release. It involves divorce by mutual consent of parties. Both parties may make the offer of divorce and once an offer has been accepted by the other party, the divorce becomes irrevocable. In the case of Juveria Abdul Majid Patni v. Atif Iqbal Mansoor, the Honourable Supreme Court held that “if the wife doesn’t want to continue with marital tie and takes the mode of Khula for dissolution of marriage, she is required to propose her husband for dissolution of marriage.
3. Talaq By Wife:
The Muslim Personal Law (Shariat) makes the Muslim Personal law applicable to Muslims residing in India. Section 2 recognizes the following types of Divorce:
(a) Ila: In Ila, the husband swears by god not to have sexual intercourse with his wife for a period of 4 months. After the expiry of such a period the marriage is treated as irrevocably dissolved.
(b) Zihar: In this form, the husband compares his wife with his mother, sister or any other female within a prohibited degree by making a declaration to this effect. The wife is entitled to refuse cohabitation to the husband until he revokes the declaration.
(c) Lian: It involves the husband accusing the wife of committing adultery. It makes the wife entitled to claim a judicial divorce on the grounds of being falsely charged with committing adultery.
Legal Implications Of Talaq
A divorce between a Muslim husband and wife give rise to the following legal implications:
- After the divorce has been finalized, sexual intercourse between the parties becomes unlawful and children born out of such intercourse are considered to be illegitimate.
- In case the marriage has been consummated, the wife has to wait till the expiration of the “Iddat” period before marrying another person but she can marry immediately if the marriage has not been consummated.
- If the marriage has been consummated, the whole dower is immediately payable to the wife but if the marriage has not been consummated, only half of the specified dower becomes payable.
- The husband is required to maintain the wife during the iddat period.
- Mutual rights of inheritance exist till the divorce remains revocable and these rights cease once the divorce has become final.
Conclusions and Suggestions
Hence, after the discussion of all the above aspects, it can be concluded that public opinion needs to be guided in favoring such liberal judgments and certain uniform codified laws which help in an important way to nullify to some extent the inequities in the existing personal Muslim Laws. Therefore, there is a need to launch an awareness campaign against the misuse of various Muslim women’s rights relating to marriage, divorce, property rights, etc.
It should also be considered that the amount of ‘Mahr’ paid is substantially high so it can discourage the practice of talaq as well as protect and ensure the rights of Muslim women.