Talaq bill has been tabled for a discussion in the budget session on Friday,
where the decision to introduce it as a fresh bill in the Lok Sabha could be
had lapsed as it was introduced in the lower house of the Parliament and was
pending in the Rajya Sabha, when the 16th Lok Sabha was dissolved last month.
Bills that are introduced in Rajya Sabha and are pending there do not lapse
with the dissolution of Lok Sabha. Bills passed by Lok Sabha and pending in the
Rajya Sabha, however, lapse.
Previous Narendra Modi-led government had promulgated the triple Talaq
ordinance twice. A bill to convert the earlier ordinance, issued in September
2018, was cleared by the Lok Sabha in December and was pending in the Rajya
Sabha. Since the bill could not get parliamentary approval, a fresh ordinance
was issued in the February this year.
against Triple Talaq has been facing stiff opposition from in the Rajya Sabha,
where NDA doesn't have the sufficient numbers to push the legislation. The
opposition has raised several objections to the provisions that award a
three-year jail term for the husband for divorcing his wife through instant
the Modi government had tried to include the views of the Opposition by adding
provisions of bail for the accused during trial. While the ordinance makes it a
"non-bailable" offence, an accused can approach a magistrate even
before trial to seek bail.
understand triple Talaq and Islamic jurisprudence terms like Talaq-e-Sunnah,
News18 has prepared an explainer.
before understanding what triple Talaq is, we must understand what a ‘Nikah’
(Marriage) stands for in Islam. Nikah is essentially a contract laid down in a
‘Nikahnama’ drawn between the husband and the wife. This contract can
have conditions and has a compulsory ‘consideration’ (Meher) to be paid at the
time of the marriage. This consideration is paid by the man to the wife, and
can be at time waived off by the woman as per her own will. So the basic
difference between a Hindu Marriage and a Muslim Marriage is that for Hindus,
marriage is a divine sacrament whereas for Muslims, it is contract drawn
between the husband and the wife.
explore the question of triple Talaq, one must understand that in Islam,
everything is followed as per Sunnah (Deeds of the prophet). Hence, most Muslim
women bodies opposing 'triple talaq’ want the Muslim bodies to adopt
‘Talaq-e-Sunnah’ (Divorce as per the Prophet’s sayings and Quranic dictation)
and discard ‘Talaq-e-Biddah’ (a diluted form of divorce which propagates
instant cancellation of marriage).
to the Prophet’s sayings, giving “Talaq” to a wife in a fit of rage or anger is
strictly prohibited. The Quran advises the husband to settle the differences
through a mutual conversation as the first step. This step is known as the Fa’izu
Hunna. If the differences continue between the husband and the wife, the
parties should refrain from any conjugal acts till they settle their dispute.
This step of physical separation known as the Wahjuru Hunna is
prescribed so that the couple re-unites. However, when this step fails, it is
recommended that the husband must attempt to talk to the wife, make peace with
her and talk about the gravity of the situation. The third step is known as the
Wazribu Hunna. However, the Quran advises that even if the third step
fails, the fourth step of ‘arbitration’ must be followed. In this step, a
member from each of the spouses’ family is present and the parties try to make
amends in the strained relationship.
It is only
after the failure of the four steps that a husband pronounces the first Talaq.
The husband has to compulsorily wait for a wife's “Iddah” (menstruation) to
complete before pronouncing another Talaq. Not more than two talaqs can be
pronounced during the course of Iddah. Iddahs are considered to be the three
monthly cycles. During these three months, a man cannot give his third Talaq.
This had been envisaged so that the couple sorts out their differences in this
period. Quran prescribes that if a woman has attained the age of menopause then
the period of Iddah is three months, whereas if a woman is pregnant, then the
period of Iddah would be till the child is born or the termination of
differences still persist, then the third Talaq is pronounced, after which the
relations between the husband and the wife are severed. Hence, the women groups
who are claiming to revive this practice are only vouching for the fact that
they get the maximum time to sort out their differences, which is often not
possible in an ‘instant Talaq’.
Exactly Is ‘Instant Talaq’? How Is It Different From Talaq-E-Sunnah?
Talaq is when women are divorced through an SMS or over a mere phone call. It
is essentially ‘Talaq-e-Biddah’.
‘Biddah’ means innovation and Muslims are essentially advised against
introducing ‘Biddah’ in their religion. This practice of Talaq was first
promoted by Caliph Umar, but staunchly opposed by all the petitioners who have
approached the Supreme Court for a reform in the case of triple Talaq. However,
the Muslim Personal Law Board has yet spoken on the issue and claims that this
can be sorted out internally.
Zehra, an executive member of the All India Muslim Personal Law Board, was
questioned about this during a recent press conference and said, “We have left
it for our Ulema (scholars) to decide what is best for us.” However, this
answer is far from the truth, as something which is not mentioned in the Qur’an
or is a part of the Sunnah can never be justified as a lawful act by a Muslim.
man marry his wife after pronouncing the third Talaq?
the third Talaq, a woman is supposed to marry another man, consummate the
relationship and only after following the original procedure of Talaq-e-Sunnah,
will she be able to marry the former husband again. This practice is known as
the ‘Nikah Halala’, and many Muslim women have condemned this practice as
barbaric and it assumes more importance, in case the talaq is given as
Talaq-e-Biddah. Women have often described it as a barbaric practice and
demanded its abolition.
women have any right to divorce the husband in Islam?
broadly two methods under which a wife can claim divorce. One is Talaq-e-Tafweez
and the other is Talaq-e-Khula. Under Tafweez, the husband ‘may’
delegate his power to give Talaq to his wife or any third party. This right has
to be in the form of a contract with conditions, like, ‘if a man marries again’
then there can be a divorce, etc. But a contract will not be without conditions
or be absolute.
one is Khula. This is a divorce which is at the ‘request’ of the wife. In this
case the woman has to make an offer of divorce to the man. The man must accept
the offer with consideration, which often means the woman, has to give back the
Meher taken during marriage. After these two steps, a Khula is
granted. The woman often approaches a Qazi-court as well to demand a Khula
from the man. There needs to be an execution of a Khulanama.
something which needs to be broadly observed is that in both the cases, it’s
only a request or a husband's wish to draw up a contract to give the wife an
option to divorce him,thereby, putting the husband first and maligning gender
equality in this regard.
Source: News 18
What is tahleel marriage?
Praise be to Allah
The husband is given the option of taking back his wife if he has
divorced her (by talaaq) twice, and this is called revocable divorce.
Allah, may He be exalted, says (interpretation of the meaning):
“The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness”
If he divorces her a third time, then she becomes haraam for him and
it is not permissible for him to marry her with a new marriage contract
and mahr unless she marries someone other than him, in a valid and
genuine marriage, then he (second husband) consummates the marriage with
her, then divorces her or dies and leaves her a widow. Allah, may He be
exalted, says (interpretation of the meaning):
“And if he has divorced her (the third time), then she is not lawful
unto him thereafter until she has married another husband. Then, if the
other husband divorces her, it is no sin on both of them that they
reunite, provided they feel that they can keep the limits ordained by
Allah. These are the limits of Allah, which He makes plain for the
people who have knowledge”
It was narrated from ‘Aa’ishah (may Allah be pleased with her) that
Rifaa‘ah al-Qurazi married a woman then he divorced her, issuing a third
divorce. Then she married another man, then she came to the Prophet
(blessings and peace of Allah be upon him) and told him that he did not
have intercourse with her, and the Messenger (blessings and peace of
Allah be upon him) understood that she wanted to go back to Rifaa‘ah, so
he (blessings and peace of Allah be upon him) said: “No, not until he
(the second husband) tastes your sweetness and you taste his sweetness
[a metaphor for consummation of the marriage].”
Narrated by al-Bukhaari (5011) and Muslim (1433).
It is not permissible for the man who issued the divorce, or for the
woman, to use tricks to get around the laws of Allah and get back
together by means of what is called a tahleel marriage. This kind of
marriage takes several forms, including the following:
1. where the husband who had issued the divorce, or the woman, or her
guardian, hire a human “billy-goat”, and stipulate that he must marry
the divorced woman, consummate the marriage with her, then divorce her,
and they give him a sum of money in return for that!
2. Where a man marries that divorced woman without making any
agreement with anybody, but his aim is to make her permissible for the
first husband, then he divorces her.
Tahleel marriages are haraam and invalid, and those who do that deserve to be cursed.
It was narrated that ‘Abdullah ibn Mas‘ood said: The Messenger of
Allah (blessings and peace of Allah be upon him) cursed the muhallil and
the muhallal lahu. [The muhallil is the one who marries a woman and
divorces her so that she can go back to her first husband, and the
muhallal lahu is the first husband] Narrated and classed as saheeh by
at-Tirmidhi (1120); also narrated by an-Nasaa’i (3416).
Al-Haafiz Ibn Hajar (may Allah have mercy on him) said:
It was classed as saheeh by Ibn Qattaan and Ibn Daqeeq al-‘Eid according to the conditions of al-Bukhaari.
End quote from at-Talkhees al-Habeer (3/72)
Ibn al-Qayyim (may Allah have mercy on him) said:
With regard to the Prophet (blessings and peace of Allah be upon him)
cursing them [the muhallil and the muhallal lahu], this is either
telling that Allah, may He be exalted, has cursed them, or it is a
supplication for them to be cursed. This indicates that it is haraam and
is a major sin. End quote from Zaad al-Ma‘aad fi Hadiy Khayr al-‘Ibaad
It was narrated that ‘Uqbah ibn ‘Aamir said: The Messenger of Allah
(blessings and peace of Allah be upon him) said: “Shall I not tell you
of a borrowed billy-goat?” They said, Yes, O Messenger of Allah. He
said, “He is al-muhallil. May Allah curse al-muhallil and al-muhallal
Narrated by Ibn Maajah (1936); classed as hasan by al-Albaani in Saheeh Ibn Maajah.
These hadiths indicate that tahleel marriage is haraam, and that it is a major sin; they also indicate that it is not valid.
It says in al-Mawsoo‘ah al-Fiqhiyyah (10/256, 257):
The majority of scholars – the Maalikis, Shaafa‘is, Hanbalis and Abu
Yoosuf among the Hanafis – are of the view that this kind of marriage is
invalid, because of the two hadiths quoted above, and because marriage
for the purpose of tahleel comes under the same heading as temporary
marriage, and stipulating that a marriage is to be temporary renders it
invalid. So long as the marriage is invalid, no tahleel occurs thereby
[i.e., it does not make it permissible for the woman to go back to her
first husband after the second marriage ends]. This is supported by the
view of ‘Umar (may Allah be pleased with him) who said: “By Allah, no
muhallil or muhallal lahu will be brought to me but I will stone
them.” End quote.
Shaykh ‘Abd al-‘Azeez ibn Baaz (may Allah have mercy on him) said:
This is one of the most abhorrent kinds of falsehood, and one of the
gravest kinds of corruption. He is in effect a zaani (fornicator or
adulterer), because he did not marry her so that she could be a wife to
him, and keep him chaste and stay with him, and so that he might hope to
have children from her. No, rather he came as a borrowed billy-goat, to
make her permissible for the one who came before him, by having
intercourse with her once, then leaving her and finishing with her. This
is the muhallil; his marriage is invalid and is not legitimate, and she
does not become permissible for the first husband so long as (the
second husband) married her with this intention and for this purpose. It
is an invalid marriage and she is not permissible for him or for the
first husband, because this is not a marriage, and Allah says
(interpretation of the meaning): “until she has married another husband”
[al-Baqarah 2:230]. This is a borrowed billy-goat, not a legitimate
husband, and he does not make her permissible for the first husband .
End quote from Fataawa ash-Shaykh Ibn Baaz (20/277, 278)
With regard to the prohibition on tahleel marriage and its
invalidity, it makes no difference whether the condition of tahleel is
specifically mentioned in the marriage contract or if the agreement is
made beforehand and not mentioned at the time of the marriage contract,
or the second husband had that intention without anybody stipulating it
or coming to some agreement to that effect with him. In all these cases
it is a tahleel marriage and is haraam.
There is no difference of opinion, according to the people of
Madinah, the scholars of hadith and the fuqaha’, whether that is
stipulated verbally or by implicit agreement and intention, because in
their view the intention behind contracts carries weight, and actions
are judged by intentions, and in their view a condition was agreed
implicitly is like one that was spoken aloud, because words are not
sought in and of themselves, but because of the meaning to which they
point. So once the meaning and intention become clear, the actual words
do not matter, because they are just the means (of expressing what is in
the heart) and in this case that aim has been achieved, therefore the
rulings are to be based on the aims.
End quote from Zaad al-Ma‘aad fi Hadiy Khayr al-‘Ibaad (5/110)
The scholars of the Standing Committee for Issuing Fatwas said:
If a man marries a woman on condition that it be for the purpose of
tahleel, or he intends that, or they both agree to that, then the
marriage contract is invalid and the marriage is not legitimate.
End quote from Fataawa al-Lajnah ad-Daa’imah (18/439)
Al-Bayhaqi narrated in as-Sunan al-Kubra (7/208) from Naafi‘ that he
said: A man came to ‘Umar (may Allah be pleased with him) and asked him
about a man who divorced his wife three times, then a brother of his
married her without any prior agreement with him, so as to make her
permissible for his brother – does she become permissible for the first
husband? He said: No, unless it is a genuine marriage. We used to regard
this as fornication at the time of the Messenger of Allah (blessings
and peace of Allah be upon him).
Shaykh Muhammad ibn Saalih al-‘Uthaymeen (may Allah have mercy on him) said:
If the second husband has the intention that when he has made her
permissible for the first husband he will divorce her, then she does not
become permissible for the first husband, and the marriage is invalid.
The evidence for that is that this is the intention of tahleel, so it is
included in the curse. The Prophet (blessings and peace of Allah be
upon him) said: “Actions are but by intentions, and each person will
have but that which he intended.”
End quote from ash-Sharh al-Mumti‘ ‘ala Zaad al-Mustaqni‘ (12/176, 177).
Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him) listed all
the forms in one place, and regarded them all as forms of tahleel
marriage which is prohibited and invalid.