How Muslim Men can Divorce - Post Triple Talaq Judgment

After the Hon’ble Supreme Court Judgment, various views and long hours of debates were seen on Television. But there was one thing missing in the whole episode: what remedy is available to that Husband who wishes to opt for divorce? Indeed, a Hindu Husband can file for divorce under the Hindu Marriage Act, a Christian can file for divorce under the Christian Divorce Act, and a Parsi can file for divorce under the Parsi Marriage and Divorce Act. But there is no express provision available for Muslim Husbands apart from the remedy available ONLY to Muslim women to file for divorce by way of filing an application under Dissolution of Muslim Marriage. This article will attempt to explore situations for Muslim Husbands Post Triple Talaq verdict. Talaq-ul-Biddat is most commonly known as Triple Talaq. It was a practice prevailing in traditional Islamic jurisprudence to divorce a wife by pronouncing Talaq three times. This triple pronouncement of divorce could be oral or in writing. However, in recent changes in development and technology, the utterance of Talaq has prevailed widely three times via telephone, SMS, email, or other available electronic forms. In this form of divorce, the Husband does not assign or give a reason for the divorce, and after a period of iddat, this divorce becomes irrevocable.

This practice faced various opposition from aggrieved women and NGOs working for the welfare of women, and by taking cognizance of their grievance, the Hon’ble Supreme Court directed this matter before the constitutional bench of 5 Judges in which the Hon’ble Court gave the historic verdict in 22-Aug-2016 terming a Triple Talaq as unconstitutional. The court said that until the government does not formulate any specific legislation, there would be injunctions against husbands pronouncing triple Talaq on their wives.

Scenario Post-Triple Talaq/ Shayara Bano Judgment

Now, most Muslim husbands are confused about what would be the remedy available to them if they wish to opt for divorce against their errant wives in the absence of any legislative provisions for Muslim Husbands.

In the case of Shamim Ara vs the State of U.P. & another, AIR 2002 SC 3551, the Hon’ble Court observed that Talaq, in whatever form, must be for a reasonable cause and must be preceded by attempts for reconciliation by judges chosen from the families of each of the spouses.

A Full Bench judgment of the Bombay High Court delivered before the Supreme Court Judgment discussed above gave detailed observations regarding Talaq.

The Court observed that a divorce by the husband is a Talaq, and it has its oral as well as written forms. The oral form of Talaq can be effected in three modes: Talaq-e-Ahsan, Talaq-e-Hasan, Talaq-ul-Biddat, or Talaq-e-Badai (this form is now unconstitutional as per a recent Judgment of the Hon’ble Supreme Court).

The first two forms are conditioned and accepted to be more civilized. Still, while resorting to any of these two forms, there are conditions precedent, and it is not that the husband is free to resort to any of these modes at any time and without assigning any reasons. If the husband feels that his wife does not care for him, she is incompatible; she does not listen to him, she does not love him, she refuses to cohabit with him, she engages in cruel behaviour, she is unfaithful or for any other reason, he has the right to give Talaq to his wife but by following a specific procedure.

Firstly, he has to inform his wife about any of these reasons, and she must be given time to change her behaviour. If, by his direct conversation or persuasion, she does not change her behaviour, the husband has to resort to the process of conciliation by informing her father or any other parental relations.

Secondly, two arbitrators, one from the wife and one from the husband, are required to be appointed. It shall be the duty of the Arbitrators to settle the dispute between the parties so that they live together happily. In spite of these efforts, if the discord persists to an irreparable level, there is no alternative but to separate, and it is at this stage that the husband has the right to give Talaq to his wife.

The conciliation stage, with the judges’ intervention, is a condition precedent for effecting Talaq, either in Ahsan or Hasan forms. (Dagdu Pathan vs. Rahimbi, Full Bench of Bombay High Court, 2002 (3) Mh.L.J. 602) Under the Shariat Act, Wives can give divorce to their Husbands by way of:

1. Khula (Divorce initiated by wife)
2. Talaq-e-Tafweez (It is a delegated form of divorce, where the husband gives up and delegates his right to divorce his wife in the future, and then the wife will exercise the right delegated by her husband). It is NOT advisable for a husband to voluntarily give up his right to divorce his wife. In this scenario, the situation becomes worse, and the husband typically has to be at the mercy of his wife to release him from the marital knot in the absence of any legislative provision or options given by Shariat.
3. Judicial Divorce:At suit of wife under Dissolution of Marriage Act, 1934 before Family Court.

By the virtue of Shariat Act Muslim Husbands can opt for divorce to their wives by way of:

1. Talaq
   Talaq-ul-Ahsan (Single pronouncement made during a Thur followed by abstinence from sexual intercourse for the period of iddat).
   Talaq-ul-Hasan (Three pronouncements were made during successive Thurs, and there was no intercourse during any of the three Thurs).
2. Ila – It is a kind of constructive divorce which is effected by abstinence from sexual intercourse for not less than four months under a vow; however, according to Shafie Law, the fulfilment of such a vow does not per se operate as divorce but gives the wife the right to demand a judicial divorce.
3. Zihar – It is an inchoate divorce. If the husband compares his wife to his mother or any other female within prohibited degrees, the wife has the right to refuse herself to him until he has performed penance. In default of expiration by penance, the wife has the right to apply for judicial divorce. Cases of Bihar are unknown in India, and textbook writers have doubted whether Courts would enforce the wife’s right under Bihar in India. But the law of Bihar has now received statutory recognition in Sec. 2 of the Shariat Act, 1937.

Before the Husband opts for any of the above forms of Talaq, he has certain obligations, as observed by the full bench of the Bombay High Court,

Firstly, he has to inform his wife about any of these reasons, and she must be given time to change her behaviour. If, by his direct conversation or persuasion, she does not change her behaviour, the husband has to resort to the process of conciliation by informing her father or any other parental relations.

Secondly, Two arbitrators, one from the wife and one from the husband, must be appointed. It shall be the duty of the Arbiters to bring in a settlement between the parties so that they live together happily. Despite these efforts having been made, if the discord persists to an irreparable level, there is no alternative but to separate, and it is at this stage that the husband has the right to give Talaq to his wife.

To divorce the wife without reason, only to harm her or to avenge her for resisting the husband’s unlawful demands and to divorce her in violation of the procedure prescribed by the Shariat is haram (forbidden).

The conciliation stage, with the judges’ intervention, is a condition precedent for effecting Talaq, either in Ahsan or Hasan forms. (Dagdu Pathan vs. Rahimbi, Full Bench of Bombay High Court, 2002 (3) Mh.L.J. 602) Further, the Court declared that a Muslim husband cannot repudiate the marriage at will and has to prove that all stages, i.e.

1. Conveying the reasons for divorce
2. Appointment of arbitrators i.e. One Conciliator from each side preferably Muslims.

The above conciliation proceeding and conveying the reasons need to follow when the wife disputes the Talaq before a competent court. Now, condition precedent needs to be satisfied for Muslim Husbands to validate divorce in the light of Shariah and Indian law. After the pronouncement of the Talaq, it is now the husband’s responsibility to validate such talaqnama before the Family Court.

A Family Court established under the Family Court Act of 1984 is empowered to examine and validate the Talaq given by their husbands to dissolve the marriage between the parties.

Therefore, in light of the above recent triple Talaq Judgment, to get a valid divorce, Muslim husbands now need to approach the Family Court to validate and get a declaration for divorce.

Note: Above article only meant to educate the sufferers of wives for information purpose. No reader should act on the basis of any statement contained herein without seeking professional advice. The author expressly disclaim all and any liability to any person who has read this article, or otherwise, in respect of anything, and of consequences of anything done, or omitted to be done by any such person in reliance upon the contents of this paper

Above article has been contributed to this website by Adv Zoheb Khatri, practising in Mumbai High Court

DISCLAIMER: The above judgment is posted for informational purposes ONLY. Printouts or Copies from this website are not admissible citations in the Court of Law. For a court-admissible copy, contact your advocate. 

You may contact me for consultation or advice by visiting Contact Us