Divorce and the law: Exploring Talaq-e-Ahsan, Talaq-e-Hasan & Talaq-e-Biddat
UPSC explainer
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1. Concept
• Talaq → Under traditional Islamic law, the unilateral right of a Muslim husband to dissolve marriage.
• Rooted in Sharia (Islamic jurisprudence), interpreted differently by Sunni and Shia schools.
• Qur’anic emphasis: Divorce should be preceded by attempts at reconciliation and only exercised with fairness and due process.
2. Types of Talaq under Sunni law
Type | Procedure | Nature | Legal status in India |
Talaq-e-Ahsan (Most approved) | Single pronouncement during tuhr (period between menstruations), followed by abstinence during iddat (Rs 3 months). | Revocable during iddat, then irrevocable. | Valid |
Talaq-e-Hasan (Approved) | One pronouncement in each of three successive tuhrs, with abstinence. | Revocable before 3rd pronouncement. | Valid (challenged in SC in 2022-23) |
Talaq-e-Biddat (Triple Talaq/Instant Talaq) | Three pronouncements in one sitting (oral, written, electronic). | Instant, irrevocable. | Void & illegal since 2019 |
Ila | Oath to abstain from marital relations for 4 months → automatic dissolution. | Irrevocable. | Rare; not barred by statute |
Zihar | Comparing wife to a prohibited relative → separation unless expiation done. | Conditional dissolution. | Rare; not barred by statute |
3. Judicial and legislative developments
A. Triple talaq (Talaq-e-Biddat)
• Case: Shayara Bano v. Union of India (2017) → SC by 3:2 majority held it unconstitutional (violated Articles 14 & 21).
• Reason: Arbitrary, instantaneous, denied reconciliation opportunities.
• Law: Muslim Women (Protection of Rights on Marriage) Act, 2019:
• Pronouncement of instant talaq void and illegal.
• Offence: Cognisable, non-bailable, punishable with imprisonment up to 3 years.
• Wife entitled to subsistence allowance & custody of minor children.
B. Talaq-e-Hasan
• News (2022-23): Petitions challenged its constitutionality (Articles 14, 15, 21).
• Govt’s stand: Gradual, revocable, allows reconciliation; consistent with Quran.
• SC’s observation: Consonant with Islamic procedure; not struck down.
4. Indian legal position & recognition
• Before 2019: All traditional forms recognized under Muslim Personal Law (Shariat) Application Act, 1937, subject to judicial review.
• After 2017 judgment & 2019 Act:
• Talaq-e-Biddat: Void and criminalized.
• Talaq-e-Ahsan & Talaq-e-Hasan: Still valid; follow gradual, revocable process.
5. Constitutional context
• Article 25: Religious freedom, but subject to public order, morality, health and Fundamental Rights.
• Articles 14, 15, 21: Basis for striking down discriminatory practices.
• Judicial trend: Personal laws can be tested against the Constitution (Shayara Bano, Joseph Shine, Indian Young Lawyers Association cases).
UPSC relevance
• Prelims: Know forms of talaq, waiting period (iddat), landmark cases, 2019 Act provisions.
• Mains: Analyse religious freedom vs gender equality; judicial role in personal law reforms.
• Essay themes: Uniform Civil Code, Gender justice in personal laws, Constitutional morality vs religious practices.
7. Practice questions
Prelims
1. Which of the following forms of talaq involve a mandatory waiting period (iddat) before final dissolution?
a) Talaq-e-Ahsan
b) Talaq-e-Hasan
c) Talaq-e-Biddat
d) Both (a) and (b)
Answer: d
2. Shayara Bano v. Union of India (2017) is related to:
a) Right to Privacy
b) Instant Triple Talaq
c) Entry of women into Sabarimala
d) Decriminalization of adultery
Answer: b
Mains – Short note (150 words)
Q: Distinguish between Talaq-e-Hasan and Talaq-e-Biddat. Discuss their constitutional validity in India.
Mains – Long answer (250 words)
Q: “The criminalisation of triple talaq is a significant step towards gender justice, but reform of Muslim personal laws must be holistic.” Discuss in light of Shayara Bano case and subsequent legislation.
Analytical
Q: “Personal laws are not immune from constitutional scrutiny.” Examine with reference to judicial interventions in Muslim divorce laws.
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