TRIPLE TALAQ :

'Triple talaq' is a customary practice, prevalent among

Muslims, that dissolves a marriage when the husband says
the word 'talaq' thrice. The custom is criticized for being
unilateral and biased against women, and is banned in 22
countries of the world.
ISLAM AND TRIPLE TALAQ:
The concept of triple talaq is merely a concept based on
jurisprudential principle and there is no divine
commandment about the following principle .Differet
school of thoughts have different interpretations about the
following concept .
Talaq and islam (analysis ):
Divorce is permitted in the Quran and the Hadith but it is
strongly discouraged. Prophet Muhammad (pbuh) has
said that “with Allah the most detestable of permitted
things is divorce.” Accordingly, the discussion of this
topic in the Quran encourages delay in finalizing divorce
and creates opportunities for reconciliation. Let us
consider the following ayas:
65:1, O Prophet, when you intend to divorce women,
divorce them with a view to the iddah (waiting period)
appointed for them, and reckon the period [carefully],
and be conscious of Allah, your Sustainer. Do not expel
them from their homes; and neither shall they [be made
to] leave unless they become openly guilty of immoral
conduct. These, then, are the bounds set by Allah; and he
who transgresses the bounds set by Allah does indeed sin
against himself: [for although] you know it not, after that
[conflict between them] Allah may well cause something
new to come about.
2:228 And the divorced women shall undergo, without
remarrying, a waiting-period of three monthly courses,
for it is not lawful for them to conceal what Allah may
have created in their wombs, if they believe in Allah and
the Last Day. And during this period their husbands are
entitled to take them back if they desire reconciliation;
but, in accordance with justice, the rights of the wives are
equal to the [husbands’] rights regarding them, although
men have precedence over them. And Allah is almighty,
wise.
65:2 When they are about to reach the end of their
waiting-term, either retain them in a fair manner or part
with them in a fair manner. And let two righteous persons
from your community witness [what you have decided];
and do yourselves bear true witness before Allah: thus
are admonished all who believe in Allah and the Last
Day. And unto everyone who is conscious of Allah, He
grants a way out [of unhappiness].
One purpose of the waiting period is to discover if the
wife is pregnant, but it is also an opportunity for
reconciliation. The word talaq, translated as ‘divorce’, is
meant as a temporary separation. The husband and wife
are asked to live in the same home, so there is a
possibility of rekindling of affection and getting back
together. Even after the waiting period has passed, they
are encouraged to remarry as is said in the following aya:

KHILAFAH AND THE EVOLUTION OF CONCEPT :

Policy of the new Islamic government for only a few
years after his death. During the time of the
second Khalifa Umar an increasing number of men
reverted to the practice of instant divorce. Umar resisted
this for some time but eventually agreed that a man
pronouncing talaq three times at one occasion would be a
legally accepted divorce. It then became the common
practice among Muslims that a man can divorce his wife
instantly by repeating the word talaq three times.
Since Umar is believed to be a rightly guided Khalifa, the
scholars have also declared the instant divorce to be
legitimate, although calling it talaq bid’i, i.e., a divorce
innovation. The consensus among the scholars has been
that there are three acceptable ways for a man to divorce
his wife: (1) the procedure implemented by Prophet
Muhammad (pbuh) is talaq ahsan (the best method for
divorce), (2) if the man pronounces divorce three times at
intervals of one month, it is called talaq hasan (a good
procedure), and (3) if a man divorces by
saying talaq three times at once, it is talaq bid’i (divorce
of innovation).
VIOLATION OF WOMEN RIGHTS : (STEPS TAKEN
IN WORLD )

JUDGEMENT IN INDIAN SUPREME COURT :

In a 2017 judgment, the Supreme Court of India

invalidated triple talaq – a mode of instant, unilateral,
extra-judicial divorce available to Muslim males. This
mode of divorce has been widely criticized for making
Muslim women vulnerable to threats of instant divorce
and the resulting destitution. This note scrutinizes three
formulations of the problem pursued by the judges in this
case: triple talaq as constitutionally protected right to
freedom of religion; as a violation of the fundamental
right to equality; and as a practice disapproved within
Islamic legal traditions. The note argues that the third
formulation (the majority verdict), that eschewed
constitutional rights analysis in favour of reforming
Muslim personal law from within, along with wide
participation of Muslim women’s groups in the litigation,
suggests new directions for the debate on Muslim
personal law in India
ICCPR:.
Article 16 of the Convention provides for the elimination
of discrimination against women at the inception of
marriage, during marriage and at its dissolution by
divorce or death
UDHR:
The founding document of the UN, The UN Charter
reaffirms “faith in fundamental human rights, in the
dignity and worth of the human person, in the equal
rights of men and women.” The Universal Declaration of
Human Rights (UDHR) which forms the basis of bills of
rights of many national constitutions was equally clear
providing in
article 1 that, “All human beings are born free and equal
in dignity and rights”.
Article 2 speaks of the entitlement of all persons to the
enjoyment of the rights contained within the Declaration
“without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or
social origin, property, birth or other status.”
The two instruments coming out of the UDHR, the
International Covenant on Civil and Political Rights, 1966
(ICCPR) and the International Covenant on Economic
Social and Cultural Rights, 1966 (ICESCR) also so provide.
The Beijing Platform of Action invokes the recommitment
to: “the equal rights and inherent human dignity of
women and men and other purposes and principles
enshrined in the Charter of the United Nations, to the
Universal Declaration of Human Rights and other
international human rights instruments, in particular the
Convention on the Elimination of All Forms of
Discrimination against Women and the Convention on
the Rights of the Child, as well as the Declaration on the
Elimination of Violence against Women and the
Declaration on the Right to Development.”
Article 1 of CEDAW
provides a definition of discrimination against women on
the basis of sex and defines discrimination as: Article 1 of
CEDAW includes both direct and indirect discrimination
and requires States parties to ensure equality of
opportunity and result. Despite CEDAW requiring State
who have ratified the Convention to eliminate
discrimination against women “by all appropriate means
and without delay”, too many States still pervasively
retain their discriminatory laws which indicates that the
pace of reform is too slow for women
. Article 2
 calls upon States who have ratified the Convention “to
take all appropriate measures, including legislation, to
modify or abolish existing laws, regulations, customs and
practices which constitute discrimination against
women.” The Convention on the Rights of Persons with
Disabilities sets out the legal obligations of State

CEDAW :
In December 1979, the United Nations General Assembly
adopted the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW). To date,
190 countries have ratified the convention, which has
been hailed as the International Bill of Rights for Women.
This landmark convention, with such widespread
international support, aimed to promote equality for
women across a variety of sectors including access to
education, health and work, participation in politics, and
freedom from violence. In joining the pantheon of central
human rights documents, CEDAW added a mandate for
gender-based equity to the guarantees of rights enshrined
in other documents. Pakistan signed the convention in
1996, Pakistan ratified this treaty with the reservation that
the sections of the convention dealing with socio-cultural
practices, as well as family and marital law, would be
complied with only in accordance with the “policy of
non-interference in the personal affairs of any Community
without its initiative and consent
CEDAW AND MUSWAH :
The Musawah research project on the Convention on the
Elimination of All Forms of Discrimination against
Women (CEDAW) examined States parties’ justifications
for their failure to implement CEDAW with regard to
family laws and practices that discriminate against
Muslim women. The research reviewed documents for 44
Muslim majority and minority countries that reported to
the CEDAW Committee from 2005-2010. This report
documents the trends identified in the review, and
presents Musawah’s responses to these justifications
based on its holistic Framework for Action. It includes
recommendations to the CEDAW Committee for a deeper
engagement and more meaningful dialogue on the
connections between

Husband’s Right of Divorce or Talaq and the Legal

procedure A husband has the unilateral right of Divorce
or talaq and he cannot be alienated from this right but can
but can be restricted through the marriage contract also
known as nikkahnama. This legislation was introduced to
protect women from an instant and unrecorded divorce.
Earlier cases were recorded where woman who was not
properly divorced and who later remarried could be
punished for bigamy and sentenced up to 7 years (or up to
10 years if she concealed the previous marriage) and only
on the complaint of her first husband as there was no
proof of dissolution of marriage. Therefore, this
legislation was enacted to protect a woman who re-
marries from a frivolous criminal case and sentencing.
hence it is vital for a woman to be absolutely clear about
her marital status and to have documentary proof that she
is properly divorced. Notice of talaq can be served on a
wife with permission of concerned government office
through her father, mother, adult brother or sister – but no
other relatives. If this is not possible because her
whereabouts are not known and notice cannot be served
on her through her immediate family, the husband can
still serve notice through a newspaper approved by the
concerned government office. It is important to receive a
notice from the concerned union council, whereas it has
been reported that in some cases families have refused to
receive notices, fearing that it is a notice of talaq and
hence talaq will not become effective. This practice could
lead to unfavorable results as service of notice can be
done by way of publication in the newspaper hence
refusal to receive notice of talaq is merely an attempt to
act like an ostrich. 3 Once the iddat period which is 90
days from the date the concerned government office
receives the talaq notice is over, the office will issue a
certificate of Talaq being effective to the husband and
wife. Please note that talaq is not effective until the expiry
of iddat period and failure to abide by law will cause a
simple imprisonment for up to one year and/or a fine of
up to Rs. 5000/-, hence the Importance of Registered
notice of Talaq A verbal talaq is not recognised by law
and the husband’s failure to send written notice to the
government office is treated as no divorce in law.
However it is also important to note that as per Islamic
scholars, divorce once pronounced by the husband and
khula once obtained from the court of law is effective
Judgement :
ther, Mr. Justice Syed Jamshed Ali in one case cited
as 2003 YLR 2623, has categorically held that the
pronouncement of three divorces in one sitting operates
as a single divorce. The Hon’ble judge while passing the
aforesaid judgment has discussed the English translation
of the relevant verses from Surah-al-Baqarah, Surah-al-
Nisa and Surah-Al Talaq from the Holy Quran published
by King Fahd Holy Quran Printing Complex, Al-Madinah -
Al Munawarah and relied upon the report of Ibn’Abbas,
narrated in Page 86, Chapter 4 of the Muslim Law of
Divorce by K.N. Ahmad (1984), wherein it has been
specified that the pronouncement of three divorces at
one and the same time was treated as one divorce during
the time of the Prophet (peace be upon him), the first
Caliph and during the first two or three years of regime
of the Second Caliph. But the Second Caliph found that
people used to pronounce divorces want only many time
and in order to discourage this undesirable practice he
introduced the rule that pronouncement of three
divorces at one and the same time shall be treated as
three divorces or a final or Mughallazah divorce.
Abrogation of Talaq-e-Biddat under Laws of Distinct
Islamic Countries
That, in addition to the above, it is pertinent to mention
here that there are a number of Muslim Countries
wherein, the practice of talaq-e-Biddah has been
abolished under the law and pronouncement of three
divorces in one sitting is said to operate as one revocable
divorce. The countries which have abolished ‘talaq-e-
biddat’ have been divided into Arab States, Southeast
Asian States, and Subcontinental States and the relevant
clauses of their laws are reproduced hereunder for your
kind perusal.

\CRIMINALIZATRION ON THE FOLLOWING

GROUND .

Triple Talaq: A case of

madness that family laws
are in Pakistan
Sufyan Raja October 31, 2018
 


 40
Shares

One of the most baffling things I encountered while practicing law in a Pakistani
court is how the state responds to nuptial disputes and other matters relating to
the subject. Every day, I came across numerous men and women seeking divorce
or remarriage and once they filed for either of those, they stepped into the topsy-
turvy world of family laws.
Conventional wisdom has it that talaq or divorce is executed
when a husband repeats the word talaq thrice and that’s it,
like bullets shot out of a gun, game over. The law, however, has
a contrary opinion.
Justice Sajjad Ali Shah, while hearing a case in Karachi’s Supreme Court registry,
remarked “verbal divorce has no legal value and a divorce is only finalized
after completion of due process”. As per Muslim Family Laws of Pakistan, to
terminate the contract of marriage, a husband is bound to send a written talaq
naama bearing his signature and the signature of two witnesses, to his wife. Also,
the husband is bound to utter the divorce in front of two witnesses. Moreover,
the husband would then intimate the concerned union council about the divorce.
The council would then approach the former wife and issue a certificate of
divorce. Finally, divorce takes full effect after the completion of iddat.
The procedure is seldom followed and as often as not men blatantly fire the
triple talaq gun. Dr. Qibla Ayaz (chairman of the CII) commented, in a recent
session of the Council of Islamic Ideology (CII), “The way the men use
triple talaq should be banned in the country”.
Triple talaq is considered illegal in most of the Muslim
countries including Egypt, Bangladesh, Indonesia and
Malaysia. However, a minority of Muslim countries allows
triple talaq.
The reason behind such a major discrepancy is the difference of juristic opinion.
According to the opinion of majority Sunni Ulema pronouncing the
word talaq three times equates to three divorces. Contrarily, according to the
opinion of Ibn-e-Taymiya and Ibn-e-Qayyim pronouncing the word Talaq multiple
times in one session only equates to a single divorce. Most of the Muslim
countries rely on the opinion of Ibn-e-Taymiya and Ibn-e-Qayyim.
The most remarkable legislation in this regard is Sri Lanka’s marriage and
divorce act, 1951. According to that law a husband intending to divorce his wife
shall give a notice of his intention to the Qauzi, who shall attempt reconciliation
among spouses, with the help of the relatives of the parties along with elders and
other influential Muslims of the area. However, if after 30 days of the submission
of the notice the reconciliation remains fruitless, the husband shall pronounce
the talaq in the presence of the Qauzi and two witnesses.

READ Khadija Stabbing Case: SC overturns LHC ruling, orders imprisonment of Shah
Hussain

Also watch:

Contrary to popular belief the Pakistani family law abolished triple talaq back in
the 60’s. The procedure laid out in section 7 of the Muslim family law ordinance
1961 (MFLO) is largely applicable to one or two pronouncements of divorce.
Some portions of section 7 of the MFLO lay in direct contradiction to the laws of
Shariah, which is why the superior courts in Pakistan and Bangladesh have been
inconsistent in the interpretation of laws on this subject.
As with several other key legislations, the MFLO also has an interesting origin
story. On April 2, 1955 then Prime Minister Muhammad Ali Bogra clandestinely
married another woman while already being married, to which the Pakistan
Woman Association started agitating, making him the face of their organized
campaign against polygamy.
The government then formed a commission and mandated it with the task of
coming up with a report about divorce and proper registration of marriage.

The commission presented a report which recommended the

enactment of laws whereby 3 divorces would amount to 1.
Moreover, no person would be able to pronounce a talaq
without obtaining an order to that effect from the family
court. As expected, the report came under heavy criticism of
the Ulema and the legislators ignored the recommendations.
Even after ignoring several of the commission’s recommendations, the MFLO
remains a controversial piece of legislation due to its ‘Un-Islamic’ provisions.
Under Islamic law third divorce becomes effective as soon as it is pronounced,
whereas under MFLO the third divorce becomes effective after 90 days have
elapsed from the date of receipt of notice by the chairman of the union council.
In Allah Rakha V. The Federation of Pakistan, the Federal Shariat Court
declared sub-sections 3 and 5 of section 7 of the MFLO repugnant to the
injunctions of Shariah.
The judiciary has also played its role in furthering this enigma.

In Ali Nawaz Gardezi V. Col. M. Yusuf the court held that a divorce becomes
ineffective if the notice is not communicated to the union council within 90 days.
Whereas, in Noor Khan V. Haq Nawaz, Chuhar V. Ghulam Fatima & Mst.
Kaneez Fatima V. Wali Muhammad the court revoked the Gardezi rule in its
judgment, saying that the failure to give notice does not by itself amount to the
revocation of Talaq. Finally in Mst. Farah Naz V. Judge Family Court the
Supreme Court reinstated the Gardezi rule. What is perhaps the most disturbing
aspect about this is that despite of major discrepancies no new legislation is
being benched on this subject matter.
READ Afzal Kohistani's Brother Fears His Killers Will Eventually Kill All Members Of
The Family

As a direct result of inconsistencies as such hideous monsters

like halala rear their ugly heads. Jurists are clear on the
matter that any intervening marriage with a precondition of
divorce or with the aim to facilitate a former spouse would be
deemed invalid and there are numerous Islamic texts to back
that up.
However, despite of the matter being clear as day, it does not stop the judiciary
from giving out bizarre judgments. In a recent judgment about a similar subject
matter a trial court judge in Azad Kashmir remarked, “although Halala is a
revolting practice but if committed, it would purify the woman for the former
spouse”. Section 7(6) of the MFLO debars a wife from remarrying a former
spouse, without intervening marriage, if a talaq has been pronounced for the
third time. Similarly, in Saleem Ahmed V. The Govt. of Pakistan, the judge
remarked that, “Halala not required if talaq affected by khula or mubarat as is
required after triple talaq”. This would almost be a non-issue if the state would
give out a clear and comprehensive definition about what constitutes a single
talaq and what constitutes a triple talaq.
How the state reacts to a certain subject, reveals how the state views itself. The
state should bring about fresh and unambiguous legislation regarding marriage
& divorce laws to clarify its position on which juristic position does the law rely
upon. If required, the CII can be asked to acquire a juristic consensus on the
issue. Moreover, the laws of other Muslim States should also be considered as a
framework. It is our duty to demand the resolution of this conundrum from the
state. Only then this frenzy of family laws can be done away with and the
problems which rear their ugly heads with it.