The Talak-ulbidda came into vogue during the second century of Islam. Ameer Ali depicts the historical background thus: “The Omayyid monarchs finding that the checks imposed by the Prophet on the facility of repudiation interfered with the indulgence of their caprice, endeavoured to find an escape from the strictness of law and found…..a loophole to effect their purpose”.
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The talak-ul-bidda has two forms: (i) the triple declaration of talak made in a period of purity, either in one sentence, such as, “I divorce thee triply or thrice” or in their sentences, such as “I divorce thee, I divorce thee, I divorce thee”, the moment pronouncement is made, marriage stands dissolved irrevocably,
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(ii) The other form of talak-ul-bidda constitutes a single irrevocable pronouncement of divorce made in a period of purity or even otherwise. This also results in the irrevocable dissolution of marriage.
The triple pronouncement is not an essential part of the talak-ul-bidda; if the intention is clear, the divorce will take place. Thus, if a husband says to his wife, “I had divorced thee in talak-ul-bidda or talak-ul-bain form”, that is enough, and an irrevocable divorce results.
The talak-ul-bidda in any of its forms is not recognized by the Shias.
In this form remarriage can take place only if the wife undergoes an intermediate marriage as in the case of the hasan talak.
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This form of divorce is condemned. It is considered heretical, because of its irrevocability. The talak-ul-bidda which is “good in law though bad in theology” is the most common mode of divorce prevalent in India.
In Khlemnissa v. State of U.P., Tilhari J., had held that triple divorce was unconstitutional, as it perpetrated male authoritarianism. The learned judge added that triple divorce was contrary to Articles 14, 15 and 21 of the Constitution of India and hence void.
Implied and Contingent Divorce:
Sometimes the words used in the pronouncement of talak are not clear, for instance, when a husband says to his wife, “I give up all relations and would have no connection of any sort with you: or, I have released thee from being my wife”; in such cases divorce will be implied if the intention to divorce is proved.
According to Ameer Ali, “The word talak in its different grammatical forms is regarded as express by other expressions which may be construed as meaning repudiation of the marriage by the husband, but are also capable of other meanings, are regarded as allusive. When express words are used no question can arise as to what was meant, but allusive words require construction”.
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When a husband pronounces divorce so as to take effect on the happening of a future event, the talak is known as contingent, and it becomes effective on the happening of the event.
The Shias do not recognize the implied and the contingent talak.
Hamad Ali v. Imtiazari illustrates both the implied and the contingent talak. When the wife insisted on going to her father’s house against the wishes of the husband, the husband said to his wife: Thou art my cousin, my paternal uncle’s daughter, if thou goest”.
Despite this, the wife left for her father’s house. The words used by the husband constitute implied divorce, while the wife’s going to her father’s house constitutes the contingent event.
The Allahabad High Court held that it amounted to divorce, though the court overlooked that in Muslim law paternal uncle’s daughter is not within the prohibited relationship. It should be clearly understood that if talak is pronounced conditionally, or is made dependent on the happening of a contingency not impossible in its nature, the talak will be effective on the happening of that event.
In Bashchoo v. Bismillah, the husband gave an undertaking in writing that he would pay her the amount of maintenance within the specified period, and that, if he defaulted in making the payment, it would operate as talak. On the husband’s failure to pay the amount within the stipulated period, the court held that the writing took effect as a valid talak.
But even among the Sunnis the repudiation cannot be qualified with an option. Thus, if a husband says to his wife, “I have divorced thee but I reserve to myself an option for three days”. The talak will be valid, but option will be void.