There have been lots of speculation going on for now amongst Muslim population in India with regard to Talaq – whether it can be practiced or not? While this question has become more evident only after The Muslim Women [Protection of Rights on Marriage] Act, 2019 came into existence from 31 July 2019 onwards.

Wherein this Law;

• Punishes a Muslim Husband, for giving Talaq to his Wife, up to three years together with fine.
• Kept the offence a compoundable [compromise between Husband and aggrieved Wife] one.
• Gives an opportunity of being heard to the aggrieved Wife [by the Magistrate] while considering Bail application of the Husband.        

And those were the reasons behind such fear crept on the minds amongst Muslim populace especially those Muslim Family where a male member contemplates Talaq and or have commissioned Talaq.

Whether Talaq is banned in India? 

Before I throw light on that, let me first explain in simple terms – What is Talaq?

In Islam, a Husband can terminate his marriage on his own Will and Pleasure. So to say a Husband decides to go out of marriage bonding he can do so by saying Talaq thrice and without seeking any approval or consent of the Wife.

Forms of Talaq:

Talaq, can be broadly classified into three heads, practiced in India, they are;

• Talaq Ahsan  
• Talaq Hasan
• Talaq-e-Biddat

In Talaq Ahsan, the Husband pronounces Talaq once during the period between menstruation and he absent himself from sexual intercourse during the period of Iddat.

In Talaq Hasan, the Husband pronounces Talaq thrice during successive menstruation and there shall be no sexual intercourse during any of the three menstruation period.

In Talaq-e-Biddat, the Husband pronounces Talaq thrice in a single statement [instantly] during one menstruation.

Talaq, Khula, Mubarat or any other instruments are a matter of Faith to the Muslim community, hence there have been no Codified English Laws came to prevail in this Country specifically allow a Muslim Husband to seek Divorce from his Wife in a Court similar to that of a Hindu Husband seeking it under Hindu Marriage Act, 1955 and a Christian Husband under Indian Divorce Act, 1869. Otherwise, a Muslim Woman can dissolve her marriage under Dissolution of Muslim Marriages Act, 1939.

The readers must know, Islam has Codified Laws built within. Whether a marital dispute or property rift, a gift or an alms everything contained in it. Hence requirement of Codified English Laws were considered unwarranted by the Muslims.

What Holy Quran says about Talaq?

The Holy Quran says Allah does not like Talaq. But Talaq is allowed only on a rarest situation i.e. when a Husband and Wife [or anyone of them] realized that they can’t live together to perform their matrimonial obligations according to the dictum of Allah, then the Divorce is allowed. [Chapter 2, Al Bakara, Verse 229]

Whereas, Islam allows a man to marry four wives provided he would render justice in maintaining equality with all four of them without giving heartburn to any of them [Chapter 4, An-Nisa, Verse 3].

So it’s clear, until commencement of The Muslim Women [Protection of Rights on Marriage] Act, 2019, a Muslim Husband by declaring Talaq thrice got his marriage terminated.

Does it mean all forms of Talaq was prohibited by this Act?

• The answer is No.

In Shayara Bano V. Union of India and others, Supreme Court led by its Chief Justice J. S. Khehar and his colleague Judges; Kurian Joseph, R. F. Nariman, Uday Lalit and S. Abdul Nazeer heard Talaq-e-Biddat form of Talaq practice in India. The Bench came to say that practicing instant Triple Talaq i.e. Talaq-e-Biddat was unlawful and the Judges were directing the Union of India to come out with a legislation to curb instant Triple Talaq. It was therefore “The Muslim Women [Protection of Rights on Marriage] Act, 2019” came into existence.

It is pertinent to mention here that including the Chief Justice of India, the above Judgment was divided by 2:3 and the dissenting Judges version was; Constitution of India prevent Courts from interfering into religious matters. Anyways thereafter the law banning instant Triple Talaq came to live.

From the Act and from the Judgment it was clear Talaq was not completely banned in India but practising one form of Talaq was termed illegal and it was banned, and the Act calls for punishment therein. It means the other two form of Talaq i.e. Talaq Ahsan and Talaq Hasan are not banned and there is no restriction to practice the same by Muslim men in India.

So, “How” Triple Talaq be ideally pronounced?

Talaq Hasan would be an ideal form of Talaq. Any Muslim Husband would consider this if he contemplates Talaq. Declaring Talaq thrice during three successive menstruation and having not indulged into any sexual intercourse therein [during those three menstruation period] would validate this practice of Talaq a legitimate one. And in between if a Husband establishes bodily intimacy with the Wife then the Talaq pronounced by him became infructuous.

Provided, if a Husband wishes to go slow on Talaq, he can do so by stopping it, in between from the First and the Third declaration.

Though Islam admits both medium; verbal and written – a Husband who wish to divorce his Wife can say Talaq thrice either orally or in written during three menstruation and / or during three Lunar months. As long as, a Husband requires to create an evidence that he has completed Talaq Hasan but not the banned form of Talaq it is advisable to give Talaq in written.

Further it is mandatory under Islamic Jurisprudence that a Wife was maintained [Iddat money] by the Husband particularly during those 3 months of Iddat period. Otherwise, a Talaq pronounced by him get a chances of becoming invalid or meaningless. Court would not consider it as a minor aberration but breaching the important ingredients of Talaq. So a Muslim Husband must follow;

• He must give Talaq in writing, if not orally, and
• He must fix a reasonable monthly maintenance and pay Wife together with a Talaq Notice every month for three months.
• Provided a Wife has breast feeding infant then the Husband is liable to pay infant’s maintenance for two years. And there is no restriction for him to pay in advance or month-wise, depends on his resources.    

What is Iddat?    

Iddat Period [3 menstrual period if not 3 lunar months] is incumbent upon the married Muslim Wife, who was divorced by her Husband by pronouncing Talaq.

The word Iddat denotes that the Divorced Muslim Wife must not marry to another man until she passes / clears her three [3] menstrual period from that of her previous marriage [from the date of pronouncement of Talaq by her Husband] i.e., she must keep herself untouched her chaste by any other man during those three menstrual periods [if not] three lunar months. It is mandatory for any Muslim Man to maintain his Wife during those 3 months Iddat Period. 

Iddat period is a mandatory obligation for a Muslim Woman and it must be complied by the Wife under Muslim Personal Laws when she gets Divorce from her Husband or even when her Husband was died. Otherwise, the Husband is responsible to maintain his Wife during those three months Iddat Period.

Provided the Divorced Wife is a breast feeding Mother then the liability of the Husband to maintain the duo for two years.

Can a Husband marry the same Divorced Wife?

No. Islam prohibits a Man who divorced his Wife from marrying her again. And if at all he wish to re-marry her, then the Wife should have got married to another man and got her relieved from him under Islamic terms – by attaining mandatory 3 months Iddat period and then only she can marry him.

So Allah cautions a Husband that before exercising Talaq he must use abundant patience and wisdom in doing so, if not, the Talaq declared by him shall not be retracted by him without having subjecting his Wife marrying another person.

The best course for a Husband after declaring Talaq?  

Once a Talaq procedure is completed it is advisable in Today’s context a Husband may immediately approach a Family Court to secure an Order declaring his Talaq [given by him in three successive months] was valid in law.

In Principles of Mahomedan Law [Mulla], Chapter XVI, under the Headnote – Divorce by Husband in No. 307, it is written as follows;

The contract of marriage under the Mahomedan law may be dissolved in any one of the following ways;

• By the Husband at his will, without the intervention of a Court.
• By mutual consent of the Husband and Wife, without the intervention of a Court.
• By the judicial decree at the Suit of the Husband or Wife.

Can a Muslim Wife exercise such liberty of terminating her marriage? Check this series under Khula.