How Muslim Men can Divorce Post Triple Talaq Judgment |
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HOW CAN MUSLIM MAN DIVORCE HIS WIFE POST TRIPLE TALAQ JUDGMENT

HOW CAN MUSLIM MAN DIVORCE HIS WIFE POST TRIPLE TALAQ JUDGMENT

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

This practice faced various opposition from aggrieved women, NGOs working for the welfare of women and by taking cognizance of their grievance, Hon’ble Supreme Court directed this matter before constitutional bench of 5 Judges in which Hon’ble Court gave historic verdict on 22-Aug-2016 terming 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 of Muslim husbands under this confusion that what would be 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. State of U.P. & another, AIR 2002 SC 3551, Hon’ble Court observed that Talaq, in whatever form, must be for a reasonable cause, and must be preceded by attempts for reconciliation by arbiters chosen from the families of each of the spouses.

A Full Bench judgment of Bombay High Court delivered prior to the Supreme Court Judgment discussed above given detailed observation with regards to 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 viz. Talaq-e-Ahsan, Talaq-e-Hasan, Talaq-ul-Biddat or Talaq-e-Badai (this form is now unconstitutional as per recent Judgment of the Hon’ble Supreme Court).

The first two forms are conditioned and they are accepted to be more civilized but while resorting to any of these two forms there are conditions precedent and it is not that the husband is at his free will 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 certain procedure.

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

Secondly, Two arbitrators, one from wife and one from the husband, are required to be appointed and it shall be the duty of the Arbiters to bring in a settlement between the parties so that they live together happily and inspite of these efforts having been made if the discord still 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 stage of conciliation with the intervention of the arbiters is a condition precedent for effecting Talaq either in Ahsan form or Hasan form. (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 husband gave up and delegate his right to divorce his wife in future and then it is the wife who will exercise such right delegated by her husband). It is NOT advisable for husband to voluntarily give up his right to divorce his wife. In this scenario, situation becomes worse and husband normally have to be at the mercy of his wife to release him from matrimonial 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
a. Talaq-ul-Ahsan (Single pronouncement made during a thur followed by abstinence from sexual intercourse for the period of iddat).
b. Talaq-ul-Hasan (Three pronouncement made during successive thurs, no intercourse taking place during any of the three thurs).

2. Ila – it is kind of constructive divorce which is effected by abstinence from sexual intercourse for the period of not less than four months pursuant to a vow, However according to Shafie Law the fulfillment of such a vow does not per se operate as divorce but gives wife the right to demand a judicial divorce.

3. Zihar – it is a kind of inchoate divorce. If the husband compares his wife to his mother or any other female within prohibited degrees the wife has right to refuse herself to him until he has performed penance. In default of expiration by penance the wife has right to apply for judicial divorce. Cases of zihar are unknown in India and it has been doubted by text book writers whether the wife’s right under zihar would be enforced by Courts in India. But the law of zihar has now received statutory recognition in Sec. 2 of the Shariat Act, 1937.

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

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

Secondly, Two arbitrators, one from wife and one from the husband, are required to be appointed and it shall be the duty of the Arbiters to bring in a settlement between the parties so that they live together happily and inspite of these efforts having been made if the discord still 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 stage of conciliation with the intervention of the arbiters is a condition precedent for effecting Talaq either in Ahsan form or Hasan form. (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.

Above conciliations proceeding and conveying the reasons needs to follow when 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 pronouncement of Talaq, it is now husband to validate such talaqnama before Family Court.

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

Therefore, in the light of the above recent triple Talaq Judgment to get valid divorce, Muslim husbands now needs to approach Family Court to validate and get 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

 

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