From the point of view of the mode of pronouncement and effect, there are two kinds of Talaq:
1. Talaq-ul-Sunnat or revocable Talaq, and
2. Talaq-ul-Bidaat or irrevocable Talaq.
The Talaq-ul-Sunnat or revocable Talaq may be pronounced either in the Ahsan form or in the Hasan form. That is to say, Talaq-ul-Sunnat may be further sub-divided into: (i) Talaq Ahsan (most proper) and; (ii) Talaq Hasan (Proper). Talaq-ul-Bidaat is irrevocable and becomes effective as soon as it is pronounced in any way, indicating husband’s desire to dissolve the marriage. In brief, the classification of the different kinds of talaq is given below:
I. Talaq-ul-Sunnat (Revocable Talaq):
Talaq-ul-Sunnat is regarded to be the approved form of Talaq. It is called as Talaq- ul-Sunnat because it is based on the Prophet’s tradition (Sunna). As a matter of fact, the Prophet always considered Talaq as an evil. If at all this evil was to take place, the best formula was one in which there was possibility of revoking the effects of this evil. With this idea in mind, the Prophet recommended only revocable Talaq, because in this form, the evil consequences of Talaq do not become final at once. There is possibility of compromise and reconciliation between husband and wife.
Talaq-ul-Sunnat is also called as Talaq-ul-raje. Only this kind of Talaq was in practice during the life of the Prophet. This mode of Talaq is recognised both by Sunnis as well as by the Shias. Talaq-ul-Sunnat may be pronounced either in Ahsan or in the Hasan form.
(i) Talaq Ahsan (Most Proper):
This is the most proper form of repudiation of marriage. The reason is twofold: First, there is possibility of revoking the pronouncement before expiry of the Iddat period. Secondly, the evil words of Talaq are to be uttered only once. Being an evil, it is preferred that these words are not repeated.
In the Ahsan Talaq there is a single declaration during the period of purity followed by no revocation by husband for three successive period of purity. In this form, the following formalities are required:
(a) The husband has to make a single pronouncement of Talaq during the Tuhr of the wife. Tuhr is the period of wife’s parity i.e. a period between two menstruations. As such, the period of Tuhr is the period during which cohabitation is possible. But if a woman is not subjected to menstruation, either because of old age or due to pregnancy, a Talaq against her may be pronounced any time.
(b) After this single pronouncement, the wife is to observe an Iddat of three monthly courses. If she is pregnant at the time of pronouncement the Iddat is, till the delivery of the child. During the period of Iddat there should be no revocation of Talaq by the husband.
Revocation may be express or implied. Cohabitation with the wife is an implied revocation of Talaq. If the cohabitation takes place even once during this period, the Talaq is revoked and it is presumed that the husband has reconciled with the wife.
When the period of Iddat expires and the husband does not revoke the Talaq either expressly or through consummation, the Talaq becomes Irrevocable and final.
It may be noted that the characteristic feature of the Ahsan form of Talaq is a single pronouncement followed by no revocation during the period of three month’s Iddat. Therefore, where a husband makes any declaration in anger, but realising his mistake afterwards, wants to cancel it, there is sufficient time for him to do so. Single pronouncement of the civil words of Talaq and sufficient opportunity to the spouses for reconciliation, are the two reasons for calling this form as the ‘most proper’ form of Talaq.
(ii) Talaq Hasan (Proper):
This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there is a provision for revocation. But it is not the best mode because evil words of Talaq are to be pronounced three times in the successive Tuhrs. The formalities required under this form are as under:
(a) The husband has to make a single declaration of Talaq in a period of ‘Tuhr.
(b) In the next Tuhr, there is another single pronouncement for the second time.
It is significant to note that the first and second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, the words of Talaq become ineffective as if no Talaq was made at all.
(c) But, if no revocation is made after the first or second declaration then lastly the husband is to make the third pronouncement in the third period of purity (Tuhr). As soon as this third declaration is made, the Talaq becomes irrevocable and the marriage dissolves and the wife has to observe the required Iddat.
It may be noted that the important feature of Talaq Hasan is its revocability before the third pronouncement and its irrevocability after the third. In order to make an effective Talaq, the words must be uttered three times in three consecutive period of purity.
In Ghulam Mohyuddin v. Khizer, a husband wrote a Talaqnama in which he said that he had pronounced his first Talaq on 15th September and the third Talaq would be completed on 15th November. He had communicated this to his wife on 15th September.
The Lahore High Court held that this was a Talaq Hasan. The Court observed that the Talaqnama was merely a record of the first pronouncement and the Talaq was revocable. The Court further observed that for an effective and final Talaq, the three pronouncements must actually be made in three Tuhrs-, only a mention of the third declaration is not sufficient.
II. Talaq-ul-Bidaat (Irrevocable):
This Talaq is also known as Talaq-ul-Bain. It is a disapproved mode of divorce. A peculiar feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. The Prophet never approved a Talaq in which there was no opportunity for reconciliation.
Therefore, the irrevocable Talaq was not in practice during his life. The Talaq-ul-Bid’at has its origin in the second century of the Islamic-era. According to Ameer Ali, this mode of Talaq was introduced by the Omayad Kings because they found the checks in the Prophet’s formula of Talaq inconvenient to them.18 Since then this mode of Talaq has been in practice among the Sunni Muslims.
Under the Shia Law, an irrevocable Talaq is not recognised.
We have already seen that in a Bidat form there is no opportunity for the revocation of Talaq. A Bid’at Talaq becomes final as soon as the words have been uttered and the marriage is completely dissolved. A Sunni husband, who wants to divorce his wife irrevocably, may do so in any of the following manners:
(a) The husband may make three pronouncements in a period of purity (Tuhr) saying: “I divorce thee, I divorce thee, and I divorce thee”. He may declare his triple Talaq even in one sentence saying: “I divorce thee thrice”, or “I pronounce my first, second and third Talaq.”
(b) The husband may make only one declaration in a period of purity expressing his intention to divorce the wife irrevocably saying: “I divorce thee irrevocably” or “I divorce thee in Bain”.
Relying on Hedaya, the Patna High Court has held that an irrevocable Talaq may be pronounced even during menses period.
It is evident that in the irrevocable Talaq the emphasis is upon the husband’s intention of irrevocable Talaq than the words uttered by him. He may use any formula which makes it clear that the husband intends to dissolve the marriage irrevocably.
In Marium v. Md. Shamsi Alam, the wife left her husband’s place and went to her parent’s house because she found that the husband was negligent to her health. When the husband went to take her back, she refused to go with him. The husband became agitated and in anger he uttered Talaq three times in one breath. But later on, realising his mistake, he revoked the Talaq within the period of Iddat.
It was held by the Allahabad High Court that although the word “Talaq” was uttered thrice, but since they were pronounced in one breath it is to be interpreted as one single pronouncement. It was observed by the court that in this case the Talaq was in the Ahsan form which was revocable. As the husband expressly revoked the Talaq before the Iddat he cannot be said to have intended the divorce seriously.
The marriage was, therefore, not dissolved and the wife had to accompany the husband. In this case the court has interpreted the rules of Muslim law liberally in order to discourage hasty and unconsidered divorces.
It is significant to note that in the recent years Talaq-ul-Biddat has become a subject of criticism among the jurists and the Indian Courts have attempted to discourage it. In Rahmat Ullah v. State of U.P., the Allahabad High Court has observed that an irrevocable Talaq (Talaq-e-Biddat) is unlawful because this kind of Talaq is against the dictates of the Holy Quran and is also against the provisions of the Constitution of India. Facts and the law laid down in this case are briefly given as under:
The case related to lard ceiling under the U. P. Imposition of Ceiling on Land Holdings Act 1960. A Muslim couple Rahmatullah and Khatunnissa had landed properties some of which were in the name of Rahmatullah and some in the name of Khatunissa.
Under the above-mentioned Act the authorities treated all the properties as ‘property of the couple’. These properties were found beyond the prescribed ceiling limits. The husband (Rahmatullah) pleaded that all the lands should not be treated as the property of the ‘couple’ because he had already given an irrevocable Talaq to his wife (Khatunissa) on 15th September, 1969 and they were at present not husband and wife. Separately, their respective properties were within the prescribed ceiling limits.
Accordingly, whether the said lands were beyond the ceiling limits or not depended on the fact whether the husband and wife continued to be ‘couple’ or there was divorce and both of them had become individuals having their separate properties. Thus, the decision of the case required ascertainment of the fact whether the Talaq was valid and lawful or was pleaded just to evade the provisions of the Ceiling Act.
The Court held that the said lands were still the property of the ‘couple’ and there was no divorce. Divorce through irrevocable Talaq was not lawful because it was against the provisions of Quran. Referring the relevant provisions of Quran the Court (Tilhari, J.) observed that Talaq-e-biddat i.e., irrevocable Talaq is not valid under Shia and Maliki law and even though Hanafi and Maliki law recognise it, but an irrevocable Talaq given in one sitting would be sinful and against the mandate of the Holy Quran.
Refering the relevant provisions of the Constitution of India the Court observed further that irrevocable Talaq is also against the provisions of the Constitution of India because it gives opportunity to the husband to dissolve the marriage by a single pronouncement without any reason or fault of the wife. It is a mode of divorce which amounts to a “practice derogatory to the dignity of the woman.”
The Court held that marriage subsists and Rahmatullah and Khatunissa continue to be husband and wife i.e. ‘couple’ for purposes of the Land Ceiling Act. As such, the Court said, that an irrevocable Talaq (Talaq-e-biddat) appears to be violative of the Fundamental Duties as provided in Article 51-A(a), (e), (f), (h) of the Constitution. Further the Court pointed out that in this case since the parties could not produce sufficient evidence of their legal divorce and there was lack of Iddat and it could also not be established that Talaq was according to the provisions of Quran, therefore, divorce between the parties is not acceptable to the court.
But, against this decision, the separated Muslim couple preferred appeal in the •Supreme Court through their counsel Anis Suhrawardy. The Supreme Court disagreed with the decision of the Allahabad High Court and held that ‘triple talaq’ in one sitting was not unconstitutional. The Five-Judge Constitution Bench held that the High Court’s finding could not operate as the law of the land “until and unless the same arises in an appropriate case and is decided accordingly”.
According to the Apex Court, the present case was unconnected with the issue of constitutionality of ‘triple talaq’ as a mode of irrevocable divorce under Muslim law; and the Supreme Court declined to go further into this question.
With due regards reserved for the honourable Supreme Court, the author’s contention is that although in case the Court had to decide whether the husband and wife were ‘couple’ under the (U.P. Imposition of Ceiling on Land Holding) Act, 1960 or, they have become separate indivisionals (due to Talaq).
The Land Ceiling Act, 1960 is violated if the husband and wife are treated ‘couple’ i.e. marriage subsists even after pronouncement of Talaq but this Act is not violated if they have now become two individuals. It is submitted that applicability of the Act (in question) rested whether the Talaq under Muslim personal law, as applied in India, was valid or not?