Do such deletions have a basis in the Qur’an? What are the different modes of divorce under Muslim Personal Law?
Do such deletions have a basis in the Qur’an? What are the different modes of divorce under Muslim Personal Law?
the story So Far: A Public Interest Litigation (PIL) seeking to invalidate the prescribed Islamic method of divorce, Talaq-e-Hasan, has been filed in the Supreme Court.
What is the PIL about?
The petition filed by Benazir Hina, a woman from Ghaziabad, through Advocate-on-Record Ashwini Kumar Dubey, seeks to make the prescribed Islamic method of talaq-e-Hasan unconstitutional as it is in violation of Articles 14, 15, 21 and . 25. Ms. Hina, who had claimed unilateral divorce by her husband Yusuf through talaq-e-hasan mode, also prayed that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which would allow Muslims to Allows the practice of unilateral divorce to be declared. Zero. In May this year, the top court had refused urgent hearing on the subject. However, on June 17, a vacation bench of Justices AS Bopanna and Vikram Nath allowed a petition for urgent hearing of the matter. It was argued that if no intervention was made, the aggrieved woman and her child would be left without any remedy. The first divorce notice was issued on April 19 and the second notice was issued on May 19.
The hearing was held by a five-judge bench headed by the then Chief Justice JS Khehar and comprising Justices RF Nariman, Justice Kurian Joseph, Justice UU Lalit and Justice S. Shayra Bano Vs Union Of India And Others case in August 2017. Instant triple talaq was invalidated, where the court said, “What is bad in theology is bad in law”, which led to the enactment of the Muslim Women (Protection of Rights on Marriage) Act 2019.
How is Talaq-e-Hasan different from instant triple talaq?
In instant triple talaq, a man pronounces multiple talaqs at a time. There is no room for reconciliation between the feuding couple, and often a marriage ends immediately. As the judges noted, it is not mentioned anywhere in the Qur’an, which largely sets out a code of divorce through Surah Baqarah, verses 226 to 237, and the initial six verses of Surah Talaq. Incidentally, triple talaq in this manner has been banned in many Muslim countries including Egypt, Syria, Jordan, Kuwait, Iraq, Malaysia, etc.
Unlike instant triple talaq, talaq-e-hasan is pronounced with an interval of at least one month or one menstrual cycle. There is only one revocable divorce through the first declaration of Talaq-e-Hasan. After this declaration the husband and wife should live together and have the option of reconciliation. If the couple is not able to mend the fence in the intervening period and the husband does not annul the divorce either through word or by establishing intimacy, the divorce remains valid. At the end of this month, the husband has to divorce for the second time. Similarly for the third time. Even after the second declaration, the divorce is revocable, and the couple can resume their marital relationship as they wish. If, however, the third utterance is followed by at least one menstrual period, irreversible divorce occurs. It is important to note that divorce cannot be granted when a woman is going through her period. There is no divorce even in the event of pregnancy. And if such an announcement is made, it is postponed until the end of the pregnancy.
Ms. Hina argues that their divorce is invalid because she had received divorce notices during the time of her menstruation. Unlike instant triple talaq, the Quran explicitly mentions the process of talaq-e-hasan. According to Surah Baqarah, verse 229, “Divorce may be pronounced twice; then either respectful retention or kindly release must follow…” Similarly the opening verse of Surah Talaq states, “O Prophet , When you divorce women, then divorce them for their waiting period, and calculate the waiting period accurately… don’t put them out of homes (during the waiting period) nor should they go…”
Are there other options for divorce other than Talaq-e-Hasan?
The third alternative to divorce is Talaq-e-Hasan and the now rejected instant triple talaq apart from Talaq-e-Ehsaan. Under this form, the same pronunciation is made. After the declaration, a woman has to go through iddat or a waiting period of three months.
The divorce can be annulled during this period. However, failure to annul the divorce during this period results in it being finalized after which a woman is free, and free to marry or remain unmarried to another man, as she may choose. Both Talaq-e-Hasan and Talaq-e-Ehsan have legal validity in almost all Muslim countries.
Interestingly, women also have the right to end unsuccessful marriages through Khula. Here a woman gives something to the man in return for annulling the marriage.
In April 2021, the Kerala High Court upheld this form of divorce. The court set aside the 49-year-old verdict in Casey Moyin vs. Nafisa and others (1972) which prohibited Muslim women from dissolving their marriages by non-judicial means.
There is some debate among Islamic scholars over the methods of Khula. Some believe that the consent of the man is necessary in Khula, while most maintain that he enjoys no such privilege.
essence
A petition filed by Ghaziabad-based woman Benazir Hina has sought to make Talaq-e-Hasan, the prescribed Islamic method of divorce, unconstitutional as it violates Articles 14, 15, 21 and 25 of the Constitution.
In instant triple talaq, a man pronounces multiple talaqs at a time. There is no scope for reconciliation and often a marriage ends immediately. Unlike instant triple talaq, talaq-e-hasan is pronounced with an interval of at least one month or one menstrual cycle.
Talaq-e-Hasan has legal validity in almost all Muslim countries, while instant triple talaq is banned in many Muslim countries including Egypt, Syria, Jordan, Kuwait, Iraq, Malaysia etc.