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Name: Manzoor Khan
Subject: Muslim Personal law
Topic: A critical analysis on Talaq-al-bida’at
CMS ID: 573-2021
Submitted to: Ma’am Tahira Manzoor
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Table of contents
Topic Page no.
Introduction 3
History 4
Application 5
Case law 6-7
Recent developments 8
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Talaq-al-Bida’at.
Introduction
The Muslim marriage contract is like any other civil contract which is entered by two parties
with consent and can also be revoked by either party. But the marriage contract has some
guidelines which are laid down in Quran and Sunnah for the guidelines of people, as it is very
sensitive matter and must be carried out with precision. Divorce is not a favorable option in
Islam, it tells us that if someone is having problem with his spouses before making any decision
they must include elders from both sides and resolve the matter.
In Islam a women can get Khula from her husband whereas, a man can give divorce to his wife.
Divorce is of three types; revocable divorce, irrevocable divorce of minor degree, and
irrevocable divorce of major degree. There are also types of Talaq; Talaq-al-Sunnah, Talaq-al-
Ahsan, Talaq-al-Hasan, and Talaq-al-Bida’at.
Talaq-al-Bida’at is also known as Talaq-al-makruh or undesirable divorce. Pronouncing such
divorce is sinful.
There is conflict between schools of thought on Talaq-al-Bida’at, where Sunni school of thought
makes it effective and Shia school of thought makes it ineffective and suggest a procedure by
which a husband and a wife can get separated.
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History
The Quran has no mention of random or one-time quick triple talaq. The book dates the
development of triple to the reign of Caliph Umar in the seventh century, which was decades
after the death of Prophet Muhammad. Such a custom was not common when the prophet lived.
The story that Hazarat Umar R.A ordered instant triple talaq to be legitimate to deal with the
demands of some critical situations is one that is frequently repeated. According to the book, the
caliph's administrative decree was made to stop men from betraying and abusing their wives.
The caliph Umar declared triple talaq legal, but he added a condition. The man who issued the
immediate talaq would be publicly whipped, but the instant divorce would be allowed. Modern
maulanas have frequently disregarded this need even as they consider triple talaq to be a legal
method of divorcing a wife. 'Instant divorce' is the purpose of this type of divorce. It is not
acknowledged by the Qur'an or the Hadith. It is an irreversible type of divorce known as "Triple
talaq," in which the husband continually says "Talaq" three times to end the marriage.
This talaq is exceptional in that there is no chance for reconciliation between the parties and it
takes effect immediately after the words are spoken. Important Islamic nations have also
abolished this practise because it discriminates against women. It was exclusively accepted by
Sunni schools.
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Application
As mentioned earlier nowhere the method of Talaq-al-Bida’at is found in the Quran and in
Prophet’s life. Whereas, the history is mentioned above. It can happen by two ways. One when a
men pronounces three divorces at a time to the wife and secondly when the wife is in her
menstruation cycle and if men pronounces divorce in these two conditions, the divorce is
unfavorable or makruh.
The following verses of the Quran tells us the method and rules of separation.
"Divorce may be pronounced twice; then the wife may either be kept back in fairness or allowed
to separate in fairness" [Surah Al Baqarah 229]
This ayah tells us that even after two divorces you can keep your wife or you may even separate.
“And the divorced women (after the pronouncement of the divorce) must wait for three monthly
courses... and their husbands are fully entitled to take them back (as their wives) during this
waiting period if they desire reconciliation." [Surah Al Baqarah 228]
This ayah clearly tells us the time of waiting period and also tells us that man can take his wife
back during the waiting period.
"Then, if the husband divorces his wife (for the third time), she shall not remain lawful for him
after this divorce, unless she marries another husband..." [Surah Al-Baqarah 230]
This ayah of the Quran tells us the ‘halala’ process, where if a wife is divorced three times, she
can only marry him again if she marries another man and their marriage contract ends for
whatever reasons, only then she can marry a man who has divorced him three times.
"When you marry the believing women and then divorce them before you have touched them,
they do not have to fulfil a waiting period, the completion of which you may demand of them. "
(Al-Ahzab: 49)
In this ayah we are told that if a women has not been touched by the man she is married to, she
cannot go through the waiting period.
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"And if those of you who die, leave wives behind, the women should abstain (from marriage) for
four months and ten days." (Al-Baqarah 234)
On account of the death of the husband, women shall be in her iddat period for term of four
months ten days.
Case laws
Mst Basra Vs Abdul Hakim and 2 others (PLD 1986 Quetta 298)
The woman claimed that at her parents' house, her husband said the word "Talaq" three times. In
its ruling, which was upheld by the Appellate Court, the Family Court disregarded the wife's
witnesses and called attention to significant inconsistencies in their testimony for compelling
reasons. A Division Bench of the High Court of Baluchistan upheld the Family Courts' finding
that Talaq had not been established under the circumstances since it had not been reached based
on an incorrect interpretation of the facts or in opposition to the evidence on file.
Naheed Fatima Vs Amir Azam Rirvi (PLD 1987 Kar. 670)
Shia couples are involved in this case. A knowledgeable Single Judge of this Court concluded
that the husband must declare the Talaq orally and in the presence of two qualified witnesses.
Shia law states that a written divorce is only legal if the husband is physically unable to
pronounce it orally. The erudite Court, however, denied the petition on the grounds that the wife
had waited six years to invoke constitutional jurisdiction.
Marvam Bano Vs Hussain Ali (1984 C L C 1961 Karachi)
The case related to a husband and wife both Muslims belonging to Shia Asna Ashari Sect.
Husband divorced his wife by a divorce deed witnessed by two witnesses, copy of which was
sent to Chairman Union Committee for confirmation, Reconciliation proceedings having failed
divorce was declared by the Chairman as effective after expiry of 9 days. The validity of the said
divorce was challenged by the wife by filing a Constitutional Petition, wherein it was observed
by a learned Single Judge that under Shia Law a husband can divorce his wife by pronouncing
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Talaq in her presence in Arabic in a prescribed manner, In this regard reference was made to
Arsenals "Muslim Law as administered in British India" who has commented as follows:
"Under Shia Law, a Talaq is of no effect unless it I pronounced,
(1) Strictly in accordance with Sunna.
(2) In Arabic terms.
(3) In the presence of at least two adult male witnesses.
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Recent developments
The most recent developments have been made in India. Such as;
The Muslim Women (Protection of Rights on Marriage) Bill, 2017
In accordance with the proposed legislation, instant triple talaq (talaq-e-bida’at) in any form
spoken, written, or transmitted electronically through email, SMS, or WhatsApp would be void
and illegal, subjecting the husband to a maximum sentence of three years in prison.
The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018
The government enacted an ordinance to make the practice illegal and invalid on the grounds
that it was still being practiced even after the SC struck it down.
The Muslim Women (Protection of Rights on Marriage) Bill, 2018
The triple Talaq ordinance of 2018 was about to expire on January 22, 2019, thus on December
17th, the government filed a new law in the Lok Sabha to take its place.
The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019
The administration reissued the triple Talaq ordinance on January 10, 2019, in light of the fact
that it was set to expire on January 22, 2019, as well as the fact that the parliament was unable to
enact the 2018 triple Talaq bill. The ordinance of 2019 was ratified by Indian President Ram
Nath Kovind on January 12.
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