Tariq 1

Fatima Tariq
Kinnaird College for Women

Triple Talaq is not islamic and it is departure and deviation from the tenets of the quran to
undermine the rights of muslim women.

The point of discussion of this paper is to know about the realities relevant to triple
divorce in muslims. The objective of this paper is to explain the real meaning of triple talaq. It
answers the query that what does the Sharia law say about this issue and how does it safeguard
the rights of women. Actually, there is the wrong perception about muslim women that they are
deprived of their rights especially under the system of Talaq. The paper at hand also figure out
the views of different sects on triple divorce. This precisely discusses the relevant case laws.
Also, it explores the legislation on triple divorce, enacted in different states.

According to book of Allah, Holy Quran, marriage is the gathering of two human beings
of opposite gender in “mawaddah and rahma”1, love and mercy. In the religion of Islam,
“marriage” is considered as holy and spiritual agreement.2 But regardless of this, marriage is
partially sacred and partial civil contract. Marriage is regarded as a holy ritual. But, when we talk
about rights and duties of both parties, they are lead under ordinary contract.3

Islam is a peace loving religion. It grant a couple to right to separate and does not impel a
couple to undergo unhappy and discomfort life. Concurrently, it does not propose dissociation
and segregation on superficial and petty causes. In Islam, divorce, when not indispensable , is
strongly condemned and discouraged.4 It is reported that Holy Prophet ‫ ﷺ‬said that “with Allah

1 Quran, 30:21
2 Esposito 2011: 210
3 K.N Ahmed 1956: 2
4 Khan 2008: 89
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the most detestable of all thing permitted is divorce.”5 In Shariah, dissolution of marriage by the
act of parties may in following forms:6

1. by the husband: i. Talaq (repudiation) ii. Ila (vow of continence) iii. Zihar (injurious
assimilation)
2. by the wife: i. Talaq e tafwid (delegated divorce) ii. Khula (redemption)
3. by common consent: Mubara'at (mutual freeing)
4. by judicial process: i. Ili’an (mutual imprecation) ii. Faskh (judicial rescission)

There is a lot of misconception among people relating to divorce in Islam. It is a widely

held view that a muslim husband is authorized to divorce his wife whenever he wants even when
there is no reason. This concept is wholly wrong. A muslim husband can’t exercise his right to
divorce in minor issues. Uttering the words of talaq three times, at one sitting, is extremely
criticize, censured and disapproved.

Triple Talaq is known as talaq-e-bidat. It is a kind of talaq in which three

announcements made by the husband during a single tuhr either in one sentence i.e; I divorce
you thrice, or in separate i.e; I divorce you, I divorce you, I divorce you.

This is a disapproved from of divorce. According to the viewpoint of Ibn al-Qayyim,

triple talaq that is enunciated simultaneously is considered as one divorce. He backed his
argument by saying that Hazrat Muhammad‫ ﷺ‬treated it as a single divorce.7 In the Holy Quran,
the husband is allowed to divorce two times. He can live with his wife after two announcements
of divorce. The third divorce holds the right of spouses to reside with each other, and after it, the
divorce becomes absolute and irreversible.8 The last prophet, Hazrat Muhammad‫ ﷺ‬condemned
and abrogated the exercise of Talaq e bidat. The second caliph Hazrat Umar (RA) had penalized
those husbands who use this kind of divorce.9

5 Reported by Abu Dawud

6 Fyzee 1949: 119
7 Ibid Al Bayhaqi Vol.7 P.331
8 Al Quran, 2:228-230
9 Abd ar-Rahman I. Doi (2008). Shari'ah: Islamic Law (2nd ed.). p. 280.
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The application of this instant divorce is extensive. The Sunni sect of muslims accept this
practice, and it is legal according to Sunni school. Such a Talaq is lawful, although is sinful, in
Hanafi Law10; but in Shia school of Islamic jurisprudence, it is not permissible.11 According to
Tyabji,12 by a deplorable development of the Hanafi law, the sinful forms have become the most
common for “men have always molded the law of marriage so as to be most agreeable to
themselves”. 13

So, Triple Talaq is repugnant to Islamic injunctions, it infringes the rights of muslim
women. Reasonable cause is a significant element of divorce. In the case, Saleem Basha vs.
Mumtaz Begum14, it was decided that a husband cannot use the arbitrary power to use his right to
divorce. There must be a sensible root cause and families of parties must try an attempt to
resolve their dispute and reconcile them. This decision also upheld in Ahmed Kasim Molla vs.
Khatun Bibi.15

The apex court of India gave the verdict on the issue of triple talaq which highlights the
accurate interpretation of Sharia law on equality, rule of law, and the human rights promulgated
in the supreme law of the state; the constitution.

Last year, Indian Supreme Court, passed a landmark judgment in case, Shayara Bano v.
Union of India & Others. 201716. The Supreme Court of India set aside the practice of talaq-e-
bidat, which allowed certain Muslim men to divorce their wives instantaneously and irrevocably,
on the basis that it violated the Constitution of India. The case itself does not primarily focus on
gender justice but has strong positive implications on advancing women’s rights and gender
equality in India.17

10 Esposito 2011: 230

11 Tyabji 1940: 148
12 Tyabji 1940: 148
13 Tyabji 1940: 163
14 (1999) DMC 206
15 (1932) ILR 59 Cal 833
16 2017 SCC
17 Michael Saifi 2017, THEGUARDIAN.COM
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In Pakistan, the courts are trying their best to control all forms of divorce by meticulously
enforcing the provisions of the Muslim Family Law Ordinance 1961 which sets an obligatory
procedure to be followed for the purpose of divorce.18 The Supreme Court of Pakistan had ruled
in Syed Ali Nawaz Gardezi v. Muhammad Yusuf that intimation of talaq to the Chairman of
Union council is necessary, if husband unable to do so, it would amount to official cancellation
of a talaq19This decision is upheld in Mohammad Salahuddin v. Muhammad Nazir
Siddique,1984.20 However, in Mst. Kaneez Fatima v. Wali Mohammad, the Supreme Court had
ruled “failure to notice of Talaq to the Chairman of the Union Council does not by itself lead to
the conclusion that talaq has been revoked. It may only be ineffective but not revoked”.21

So, one fails to understand the real differences between ‘revocation of talaq’ in the
Gardezi case and ‘talaq being ineffective’ in Kaneez Fatima. As far as we observe the factual
effect of both cases, there is no difference. ‘Revocation of talaq’ means that the husband has
exhausted one talaq and is now left with two declarations to exercise in the future.

In my opinion, once a Hanafi husband has pronounced three talaqs at a time with the
intention of divorcing his wife thrice, then talaq will be effective morally (in a sense, what we
observe in our Pakistani culture). However, if the husband pronounced three repudiations in one
sitting displaying no intention to declare three talaqs, than it will be considered one
pronouncement.

As we study the muslim personal law of Sri Lanka, we came to know that there is no
concept of triple talaq at once, and the law does not acknowledge it. The law of Sri Lanka
demands a husband who wants to divorce his wife, to let the Qazi know about his intent. Qazi is
an islamic judge, whose duty is to set out reunion among both spouses within a month. If there is
no reconciliation, then it is a prerequisite of divorce that qazi and two witnesses must present.22

18 Section 7 of MFLO 1961

19 PLD 1963, pp.74-75
20 1984 SCMR 583
21 PLD 1993 SC 901, p. 916
22 Second Schedule of Muslim Marriage and Divorce Act of 1951
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If we go through the Sharia law, applicable in Egypt, we witness that there is no effect of
talaq made by three or more consecutive announcements, it is considered as a single mutable
divorce.23 In addition to it, according to family law of Sarawak, Malaysia, it is necessary for a
husband to seek the court to make the divorce effective. The court must advise the couple to
reconcile.24

So most of the muslim states consider three consecutive announcements of Talaq

amounts to one talaq. Also, it is compulsory to wait after each declaration.

Final Analysis:-

According to me, the Shariah law relating to divorce is the most misunderstood and
misused aspect of that law. Having brought up in a society casting misconceptions about
different islamic injunctions like marriage, talaq etc. Since, childhood, I thought that once a man
utter three words of talaq to his wife, divorce come in effect. I am not the only one who kept in
the dark and was kept away from the real story of the talaq and rights of women in Islam. In
Pakistan, triple talaq is still a major practice. It is one the major cause of increasing divorce rate
in our country. It is a stereotype that divorce is a one-sided engine of oppression in hands of the
husband.
What I conclude while doing research of this paper, is that Talaq is not meant to
discriminate on basis of gender, it is not partial and support males. The divorce rules in the
Quran and Hadith, pre-eminently just and remarkably women friendly, have unfortunately
misinterpreted by men in a bid to keep an upper hand in this matter. While writing this
assignment and going through the true law, I deduce that it is just a myth that Islam gives men an
unfettered power to unilaterally inflict a talaq on their wives, or that it discriminates against
women in this regard.
I think that dissolution of marriage is basically for the protection of women, and it
prevails the rights of women. If a man doesn't use his right to divorce, he can marry with three

23 Article 3 of Sharia Law, 1985(amended)

24 Law Reform (Marriage & Divorce) Act of Malaysia (1976)
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other women, but women cannot do. So, my point of view is that the basic purpose of divorce in
islam is to facilitate women. It is not a discriminatory law on basis of gender, it provides equal
even surplus privileges to muslim women.
Pakistan is an Islamic Republic country. Unfortunately, divorce rates are rising day by
day in the country. According to the research statistics, in 2018, more than 20,000 divorce suits
are filed in family courts of Lahore.25 It is an alarming situation. Government should take steps
to aware public about realities relevant to marriage and divorce to minimize the increasing
divorce rate in Pakistan and promote harmony in society. People should change their minds and
stop following these innovations (biddah). They should follow actual principles of Quran and
Sunnah. Institutions must work properly, and should not mislead the people whether it is about
triple talaq or any other ritual.
It is a positive initiative that three months back, chairperson of the Council of Islamic
Ideology(CII) Dr. Qibla Ayaz spoke up in favor of the decision that says that triple talaq is a
crime, and husband is penalized under the law26. I am looking forward to see that our legislation
will make effort to bring the law in accord with injunctions of Islam and modern ideas of social
justice.

References

i. Abdar-Rahman, D. I. (2008). Shariah: Islamic law, 16th ed. London, p.280

ii. Ahmed, K. N. (1956). A commentary on the Dissolution Muslim Marriages Act (Act no.

VIII of 1939). Karachi: Legal Publications, p. 2

25 Samaa News, January 2018.

26 Javed Hussain September 26, 2018, DAWN NEWSPAPER
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iii. Esposito, J. L. (2011). What everyone needs to know about Islam. New York: Oxford

University Press, p. 210, 230

iv. Fyzee, A. A., & Mahmood, T. (1949). Outlines of Muhammadan law. Oxford University

Press, p. 119

v. http://www.theislam360.com/ [Mobile application]

vi. Javed Hussain (2018) CII backs legislation on triple talaq as punishable offence, DAWN

Retrieved from https://www.dawn.com/news/1435142

vii. Khan, F. (2008). Traditionalist Approaches to Shari'ah Reform: Mawlana Ashraf 'Ali

Thanawi's Fatwa on Women's Right to Divorce. p. 89, 90

viii. Michael Saifi (2017). Ban on instant divorce . The Guardian. Retrieved from

https://www.theguardian.com/world/2017/aug/22/india-supreme-court-bans-islamic-

instant-divorc -triple-talaq

ix. The Holy Quran . (1988). Islam Internat. Publ. surah 2 and surah 30

x. Tyabji, F. H. (1940). Muslim law: The personal law of Muslims. Bombay: N.M. Tripathi.

P. 148, 163