ISSN: 2321-8819 (Online)

Asian Journal of 2348-7186 (Print)

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Multidisciplinary Studies Vol. 4, Issue 12, November 2016

Muslim Women’s Role And Rights Under Personal Law

With Special Reference to
Unilateral Talaq Vis-A-Vis Contradictory Policy
in India Through The Lenses Of Judiciary
Anisha Shaikh
Bharati Vidyapeeth Deemed University
New Law College, Pune

Abstract: Islam is the first religion in the world which has expressly recognised the separation or
termination of marriage by the way of Talaq. In Islam Talaq is considered very bad form of ending a relation
between the spouses. Muslim law Talaq is an arbitrary act of a Muslim husband who may repudiate his wife
at his own pleasure with or without cause. He can pronounce the Talaq at any time. It is not necessary for
husband to take prior permission of his wife. Notwithstanding a wife cannot divorce with her husband of her
on choice. She can divorce husband only when the husband has given such right or under an agreement to
her. A wife can Talaq her husband either by Khula or Mubarat.judiciary has prounced some judgements even
if it is against public policy of personal laws.now the time has come to consider and reform some important
aspect of muslim law because it is affecting the rights and liberty of muslim women.

Keywords Muslim Women’s Role, Muslim Women’s Rights, Personal Law, Unilateral Talaq, Contradictory Policy In India,
Lenses Of Judiciary

The Prophet of Islam is reported to have said ''marriage is my Sunna and those who do not follow this way of life
are not my followers." He also said that ''there is no place of mockery in Islam.''1
In Hedya, marriage is defined as a "... legal process by which the sexual intercourse and procreation of children
are legitimized between man and woman and is perfectly lawful and\valid."
Many people of other religions believe that a married Muslim man can dissolve his marriage at any time by
saying to his wife: "Talaq, Talaq, Talaq" at one occasion of his own free will and desire. ("Talaq" means "I
divorce you.") This motivated me to study the the actual existence of this method of dissolution of a marriage in
Islam.2
In Muslim law Talaq is used as the substitute of divorce to escape from marital bondage. After divorce the
relation between wife and husband is not totally vanished whereas Talaq means all separation of husband and
wife. A happy family life needs so many things but the two most important thing is togetherness of wife –husband
and cohabite relationship with love or affection. But some time it happens that the relationship between husband
and wife loses its love or affection. Though they are living together but there is no possibility to survive with each
other. Therefore they need separation from each other. It may be judicial separation or divorce.
Provision of divorce is recognised in all the religions. But Islam is the first religion in the world which has
expressly recognised the separation or termination of marriage by the way of Talaq. In Islam Talaq is
considered very bad form of ending a relation between the spouses. Even Prophet declares that Talaq is the
worst.3 Talaq being an evil, it must be avoided by us as much as possible. However sometime this evil option
becomes better to any other moral option because whenever it is impossible to carry a married life with love
and affection then the partners feels suffocation. In that case Talaq is the one and only option for that couple.
Talaq in its primary sense means demission. Its literal meaning is to set aside with marital relation. In Muslim
Law it means freedom from all the bondage of marriage or release from the marriage tie, immediately or
eventually.4 In legal sense Talaq is dissolution or repudiation of marriage by husband using certain words.5
Talaq is the process of separation for husband with his wife accordance with the due process of Law.

1
http://www.religioustolerance.org/mohd.htm
2
http://bir.brandeis.edu/bitstream/handle/10192/31474/Raghavan.pdf?sequence=1&isAllowed=y
3
Tyabji Muslim Law, Edn. IV, P.143
4
Wajid ali v. Jaffar Hussain AIR 1932 Oudh 34
5
Hedaya, p. 72, Baillies Digest of Mohammadan Law Part I p. 204

Available online at www.ajms.co.in 98

Muslim Women’s Role And Rights Under Personal Law With Special Reference to Unilateral Talaq Vis-A-Vis
Contradictory Policy in India Through The Lenses Of Judiciary
From a reading of the Quran we learn that God does not favor divorces and in fact encourages the continuation
of marriage. God has imposed prohibitions on certain category in marriage. However for those who comes to
know of these prohibitions afterwards are commanded not to break existing marriages Divorce must be resorted
only in exceptional circumstances. The laws relating to divorce together with the relevant verses from the
Quran are given below:
Appoint an arbitrator:
If a couple fears separation, you shall appoint an arbitrator from his family and an arbitrator from her family; if
they decide to reconcile, GOD will help them get together. GOD is Omniscient, Cognizant.
Wait 4 months cooling off before divorce:
Those who intend to divorce their wives shall wait four months (cooling off); if they change their minds and
reconcile, then GOD is Forgiver, Merciful. If they go through with the divorce, then GOD is Hearer, Knower.
If the estranged couple chooses separation they must go through with it equitably. There must be two
equitable witnesses witness the divorce before GOD
Once the interim is fulfilled, you may reconcile with them equitably, or go through with the separation
equitably. You shall have two equitable witnesses witness the divorce before GOD. This is to enlighten those
who believe in GOD and the Last Day. Anyone who reverences GOD, He will create an exit for him.
Divorced women to observe an interim period:
The divorced women shall wait three menstruations (before marrying another man). It is not lawful for them
to conceal what GOD creates in their wombs, if they believe in GOD and the Last Day. (In case of
pregnancy,) the husband's wishes shall supersede the wife's wishes, if he wants to remarry her. The women
have rights, as well as obligations, equitably. Thus, the man's wishes prevail (in case of pregnancy). 6 GOD is
Almighty, Most Wise.
As for the women who have reached menopause, if you have any doubts, their interim shall be three months.
As for those who do not menstruate, and discover that they are pregnant, their interim ends upon giving birth.
Anyone who reverences GOD, He makes everything easy for him. This is GOD's command that He sends
down to you. Anyone who reverences GOD, He remits his sins, and rewards him generously.
Dagdu s/o Chotu Pathan, Latur v. Rahimbi Dagdu Pathan, 7
Court has explained in its judgement that every exercise of right to talaq by the husband is required tosatisfy
the preconditions of arbitration for reconciliation and the reasons for talaq.
Must. Rukia Khatun v. Abdul Khalique Laskar, 8 Baharul Islam, J. stated that the correct law of talaq as
ordained by the Holy Quran is that talaq must be for a reasonable cause and it must be preceded by an attempt
of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family
and the other by the husband from his.
It is submitted that this view was referred to with approval by this Hon’ble Court in Shamim Ara v. State of
Uttar Pradesh & Another,9 wherein this Hon’ble Court considered valid talaq in Islamic law and, referring to
these decisions as “illuminating and weighty judicial opinion available in two decisions of Gauhati High
Court recorded by Baharul Islam, J”, observed that talaq must be for a reasonable cause and be preceded by
attempts at reconciliation between the husband and the wife. The Supreme Court has disagreed with the
established principles on the law of written divorce among Muslim and has ruled that Talaq to be effective has
to be pronounced.
In Moonshee Buzloor Rahim v. Laleefutoon Nisa,10 it was said that under Muslim law Talaq is an arbitrary
act of a Muslim husband who may repudiate his wife at his own pleasure with or without cause. He can
pronounce the Talaq at any time. It is not necessary for husband to take prior permission of his wife.
Notwithstanding a wife cannot divorce with her husband of her on choice. She can divorce husband only
when the husband has given such right or under an agreement to her. A wife can Talaq her husband either by
Khula or Mubarat.
Islamic law in matter of Talaq is very vague or complicated. According to Sunni law every man who is
Adult, Sane and Sound mind can pronounce Talaq. A Talaq declared under compulsion or intoxication or

6
http://www.comp.leeds.ac.uk/nora/html/2-228.html
7
2002 (3) Mh LJ 602
8
(1981) 1 GLR 375 (DB),
9
(2002) 7 SCC 518
10
(1867) 11 MIA 551

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Muslim Women’s Role And Rights Under Personal Law With Special Reference to Unilateral Talaq Vis-A-Vis
Contradictory Policy in India Through The Lenses Of Judiciary
fraud or cheat is also effective, whereas Shia law differ from this. According to Shia law, Talaq is effective
only if it is11
 Strictly accordance with sunnat
 In Arabic terms
 In the presence of at least two adult witness
 With the distinct intention to dissolve the marriage tie
 Out of husband ‘s own free will, without any pressure upon him
 Sound mind
 After attainment of puberty.
Muslim law mentioned various forms of Talaq as follow :-
1. Talaq –ul- sunnat: This type of Talaq is given in accordance with the prophet. It has been further divided
into two parts.
➢ Ahsan- most famous mode of Talaq, Ahsan is an Arabic word which means ‘best’. It is very best form of
Talaq, but by this mode one should follow some restrictions or rules,
 Husband has to pronounce divorce in a single sentence.
 The statement of divorce in stage of purity (Tuhr).
 Husband must avoid sexual relationship with his wife in the period of Iddat.
Iddat is the given period to wife by her husband after pronouncing the divorce, in this period wife can live in
same house with husband but she should has to avoid sexual relation with her husband. This period must be of
3 months.12 During the period of iddat Talaq may be revocable but after crossing the period of iddat , it’s
become irrevocable.
➢ Hasan –It is called good mode of Talaq. Hasan is a Arabic word which means good. Though Hasan mode of
Talaq is good form but it is inferior than the Ahsan. 13 In Hasan form of Talaq one should satisfy following
condition-
there must be three pronouncement of Talaq.
 In case of menstruating wife first pronouncement should be made during period of Tuhr, second in
next Tuhr and last pronouncement in third month.
 No sexual intercourse taken place in the period of Tuhr.
2. Talaq-ul–biddat: It came in tradition during 2nd century of Islam. This is a wrest form of Talaq, it is also
called sinful form of divorce. In Sunni law talaq-ul-biddat is recognised but it is considered sinful. 14 According
to this form of divorce one should have to pronounce Talaq in one sentence thrice at a time. It is further divided
in to two sub group-
 Written divorce: it is a form of divorce in which husband given Talaq to her wife by the written
statement. This is also called contractual divorce, in which husband divorced his wife by the due process
of law.
 Triple divorce (talaq halala)
Triple Divorce (talaq halala): Triple divorce is one of the ancient forms of divorce but in early days it is not
recognised in India. Although the Muslims of Arab countries were used this form of divorce very first era but
India adopted it later.
Sara Bai V. Rabia Bai15
Triple talaq was recognised. Later on court approved this form of talaq but it is not expectable as in human
nature. How anyone can leave her wife just pronouncing the three word of talq, talaq, talaq. It is very sinful. No
one can treat with her wife like evil. A women world is around her husband, in every religion wife pretend her
husband as god and if a god do like that with her beloved, then the scenario become worst. No one can dare to
trust her husband. The sole of any relation is trust, where no trust there is any relation.
In a recent case law Shayara Banu v. Rizwan Ahmed16

11
http://www.sistani.org/english/book/48/2357/
12
http://www.searchtruth.com/tafsir/Quran/65/index.html
13
A.S.Parveen Akthar vs The Union Of India on 27 December, 2002
14
http://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html
15
(1903)30 BOM 537

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Muslim Women’s Role And Rights Under Personal Law With Special Reference to Unilateral Talaq Vis-A-Vis
Contradictory Policy in India Through The Lenses Of Judiciary
Appellant filed an appeal against her husband, and challenged before Apex Court that her constitutional right has
been violated by the provision of Triple Talaq , and she demands a civil uniform code. Although some scholars
are in favour of triple Talaq and they said that it is basic concept of Talaq which has been written in Quran in
verse 229 of sura 2.17
In the case of Mohd. Ahmed Khan V. Shah Bano Begum 18
Shah Bano appealed before SC to compensate herself after divorce, because she was unable to maintain and
fulfil her fundamental needs. So she has right to compensation by the side of husband. After a long proceeding
she got the compensation from her husband, because Muslim law does not recognised any type of maintenance
after iddet. So the triple talaq is very worst form of divorce.
3. Ila- This is an another form of divorce, to pronounce talaq by this form
 Husband must be of sound mind
 He must be major
 He swears by God that he will not have sexual relation with her wife
4.Zihar – This is a unique form of talaq, in which husband compares his wife as mother or sister, in that case
wife has right to refuse her husband until he does perform penance.
Talaq- e-tafweez:
Husband may himself divorce his wife or delegate his power of divorce to third party or even to his wife such
delegation is known as tafweez.19 The husband and wife may enter into agreement that the wife would be at
liberty to divorce herself from her husband under certain specified conditions provided the conditions are
reasonable and are not opposed to public policy.20
Talaq by mutual consent:
1. Khula (lay down): We can say this is the parched right of a women to her husband. In which a wife
parched the right of divorce to her husband in favour of some amount. A women can divorce her
husband if the husband given her own consent. That mean if a husband don’t want to give divorce his
wife than his wife can’t get divorce by any other way. For Khula
 There must be an offer from the wife
 The offer must be accepted by husband
 With the consideration for release
2. Mubarat: It is form of dissolution of marriage by mutual consent of both the parties. In which husband and
wife both are agree to divorce by mutual consent. This is little bit different from Khula form of divorce. 21
By Judicial Separation: This is the one and only way of dissolution of marriage by legal or judicial way. It is
also called as judicial divorce. This is also a new concept of Muslim divorce law. There is provision of divorce
for women by her own accord.
Dissolution of Muslim Marriage Act, 1939 has given special power to Muslim women for divorce. The wife
could use this act by follow some condition.
 Impotency of the husband
 Lian
 Opinion of puberty
The Dissolution of Muslim Marriage Act, 1939 is applicable to all the school of Islamic law. This act is
enforceable whole India except J&K. whereas in J&K, Dissolution of Muslim Marriage Act, 1942 is enforced.
This act provides Safety of a Muslim wife to her husband against cruelty.
According to section 2 of this Act- provide a Muslim married women decree for divorce if,
 Husband has not been known for a period of 4 years
 Husband ignores her
 Failed to provide her fundamental needs for a period of 2 years

16
https://wallsofignorance.files.wordpress.com/2016/03/shayara-bano-writ-petition-maari-baari-62-
18032016.pdf
17
https://quran.com/2/229
18
AIR 1985 SC 495
19
http://www.internationallawyer.info/2014/09/judgment-on-talaq-e-tafweez.html
20
Buffatin v. Salim AIR 1950 Cal 304
21
https://arjungupta1993.wordpress.com/2015/03/22/divorce-by-mutual-consent-in-muslim-law-mubarat/

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Muslim Women’s Role And Rights Under Personal Law With Special Reference to Unilateral Talaq Vis-A-Vis
Contradictory Policy in India Through The Lenses Of Judiciary
 Husband has been sentenced by law for the period of 7 years or more
 Husband has withdrawn himself from society
 Husband ignored cohabit relation with her
 Cruelty by the side of husband
Muslim law provides very easy process of getting divorce for a male partner. It is known to all that this
right of dissolution of marriage is misused by Muslim husband. As we all know that Mohammedan Law
commonly known as Muslim law, which is not, codified law. There are nearly no right given to women due to
which men enjoys their superiority and there dominating nature upon women. Many a social practices amongst
Muslims is very retrograde and detrimental to lives of women. Women rights of inheritance, polygamy, triple
talaq show subordinate position of women in the community.
Many have come out in support of thousands of Muslim women who sought in support to abolish the practice of
triple talaq. If fundamental rights of any Indian citizen are violated irrespective of gender then he or she can
knock at the door of the Supreme Court under Article 32 of Indian Constitution. Pronouncement of triple talaq
deprives the wife of her rights in matrimonial home. There is violation of her fundamental rights, particularly
under Article 21, vis-à-vis any religious community.
Many Islamic countries have banned the pronouncement of triple talaq like Saudi Arabia, Pakistan and
Iraq. The practice of talaq-ul-biddat and divorce of a woman without proper attempt at reconciliation violates
the basic right to live with dignity of every Muslim Woman. Muslim women have been given talaq over Skype,
Facebook and even messages. There is no protection against such pronouncement.
Society is constantly moving forward in post-colonial secular India and thus the resistances in reforms in
personal laws appear meaningless. A common and secular Special Marriage Act of 1954 has already given all
Muslim couples the option to register their marriage under Act. Similarly, Muslim Women (Protection of Rights
on Divorce) Act 1986 empowered to enforce the rights generally available to divorced women under the Islamic
law. There is a need of reforms within personal laws to reconcile with gender justice norms of civil code without
disturbing the broader framework of Islam.

Asian Journal of Multidisciplinary Studies, 4(12) November, 2016 102