By A Mirsab, TwoCircles.net,
The Shayara Bano case in Supreme Court has ignited a massive debate across the country over the existing Muslim personal laws. Through the writ petition, Bano has challenged the practices of talaq – e – bidat (instantaneous Triple Talaq), nikah halala (bar against remarriage with divorced husband without an intervening marriage with another man) and polygamy as unconstitutional.
Union government and All India Muslim Personal Law Board (AIMPLB) have filed counter affidavits before the court with contrasting stands. Modi government has called for abolishment of these practices as it consider them against gender justice whereas AIMPLB vehemently opposed any interference in already existing Muslim personal laws.
Nonetheless, the matter is pending before Supreme Court and therefore as forethought it is necessary to first know the forms of separation between the couple, from the viewpoint of Shariah that are in existence under the present Muslim Personal laws.
According to Shariah separation between the couple may take any of the following forms :
a) Khula i.e. separation between the couple by mutual consent. In this case wife foregoes some of her rights in order to secure divorce or she pays some monetary compensation. In principle, however, no male should divorce without a valid ground. Nor should any female demand Khula without a valid ground. Nonetheless, it is not binding upon a woman to have any particular ground for demanding Khula.
She may ask for it out of her dislike for him. If the husband accepts her demand, it brings an end to their marriage.
b) Faskh i.e. revocation of marriage. When wife applies to Dar ul Qaza for the revocation of marriage, complaining of the non – fulfillment of her any right or her husband’s injustice or excess. As Dar ul Qaza upholds her complaint in the light evidence, it will revoke marriage.
c) Ayla i.e. a vow by husband to the effect that he will not have sexual relations with his wife in future or for at least four months. If he follows this oath for four months, his will stand divorced.
d) Lian i.e. a charge by husband that he saw with his own eyes that his wife committed adultery, though he does not have any evidence of the same. Then Dar ul Qaza will ask them to state four times under oath.
For the fifth time husband will state: ” Allah’s curse be up on me, if I level a false charge against her.”
Wife will state: “If this person is true in his charge, Allah’s wrath be upon me.”
At that stage Dar ul Qaza will revoke marriage.
e) Talaq i.e. Divorce. Husband may divorce his wife in one of the following forms:
i. Husband may divorce her once, specifying the word talaq, saying “I pronounced divorce once upon you”. In this case he is entitled to back his wife in marriage before the expiry of the waiting period. This is revocable divorce.
ii. Husband may divorce her twice, specifying the word talaq. He may do so at one time or at two different times. In this case too it would be revocable divorce.
iii. Talaq bain i.e. irrevocable divorce: Husband may tell his wife “I pronounce upon you talaq bain once” or he may use some vague word which may be taken to mean divorce or any other thing, for example, he may say “ you are released”. It may refer to her release from serving him or that she is free to live in her parent’s home or it might mean that she is released from the marital bond which is synonymous with divorce. If he confirms that he divorced by using the above words, it is an instance of irrevocable divorce. Marital ties between the couple can be resumed only by remarriage. However, husband may not unilaterally take her back in marriage. If irrevocable divorce is pronounced twice in succession, only one will be effective, the second one will be null and void. However, if one says: “I pronounce upon you two irrevocable divorce, it will come into effect, leaving room for remarriage”.
iv. If one divorces his wife, without specifying thrice and only repeats his statement of divorcing thrice and clarifying that it was not his intention to pronounce triple divorce rather he intended divorce only once and he had repeated it for emphasis, it will be taken as revocable divorce. Husband will be entitled to take her back in marriage during the waiting period. After the waiting period, there is room for their remarriage through mutual consent.
Therefore, in all there are eight forms, of which four are of divorce and another four of separation. In all these cases, the couple may remarry if they wish to do so. In these instances, the woman does not have to marry another person and only on separation from him she may remarry her former husband.
The ninth form of divorce is that husband may in one go or at different times, divorce his wife, specifying it as Triple Talaq or he may repeat the word divorce thrice and clarify that he did not repeat it for emphasis; his intention was to pronounce triple divorce. In the opinion of mainstream (sunni) Muslim jurists, the triple divorce will come into force in the above instance. In this case, that woman would be lawful for her former husband only thus: she marries another person and before sexual relations with him or after it, her second husband dies or if the second husband has sexual relations and then divorces her.