The traditional Islamic law or Islamic legal system is known as Sharia. Muslim law in India is not codified, but the Indian Parliament has enacted some laws to regulate Islamic practices. The Muslim Personal Law (Shariat) Application Act, 19371 (“the Shariat Act”) is one such Act that deals with marriage, divorce, and other related matters concerning Muslims.
Under the traditional Indian Islamic law, there were three types of divorce, that a Muslim husband could initiate, namely, talaq-e-ahsan, talaq-e-hasan, and talaq-e-biddat (also known as a triple instantaneous divorce).
In 2017, the Supreme Court of India issued the landmark judgment of Shayara Bano v. Union of India2, which held that a triple instantaneous divorce is unconstitutional. In addition, Shayara judgment3 discussed the other forms of talaq as well and differentiated between them.
It stated that talaq-e-ahsan is “the most proper” form of divorce in Indian Muslims. In this form of divorce, the husband is required to say the word talaq to his wife once, followed by a waiting period of three menstrual cycles (about ninety days) known as iddat, during which the wife may not marry another man. Talaq-e-ahsan is initially revocable, but it becomes final and irrevocable if the couple does not resume cohabitation or intimacy during the iddat period.
The second form of talaq is known as talaq-e-hasan. The Supreme Court explained that the main distinction between “talaq-e-ahsan” and “talaq-e-hasan” is, that instead of saying talaq once, the husband says it on three successive occasions, each of which must be interspersed with three successive periods of iddat lasting one month each. The Court also observed that, “as against ‘talaq-e-ahsan,' which is regarded as ‘the most proper' form of divorce, Muslims regard ‘talaq-e-hasan' only as ‘the proper form of divorce'.” If there is no resumption of cohabitation during any of the successive iddat periods, the divorce is then irrevocable.
While recognising the above two forms of divorce, the Indian Supreme Court in Shayara case4, declared talaq-e-biddat (instantaneous triple talaq) to be unconstitutional. This kind of divorce was accomplished by repeating the word talaq three times simultaneously, with no interim cooling-off periods. It could be accomplished orally, in writing, or even through a text message and was effective as soon as the husband uttered the three words. Due to the very arbitrary manner in which this kind of divorce was affected, the Supreme Court held that it violated the provisions of the Indian Constitution.
Accordingly, the Indian Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act in 20195. This Act defines talaq-e-biddat as anything “having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.” It declares that this practice is unconstitutional, illegal, and punishable by a fine and imprisonment of up to three years.
An offshoot of the practice of triple talaq is the practice of nikah halala. In essence, this practice means that if a Muslim man has irrevocably divorced his wife by means of a triple talaq, they may not remarry unless, after their divorce, the wife married another man, and that marriage was ended by divorce or death.
The supposed rationale behind this practice is to “punish” the husband for acting in a moment of rage and divorcing his wife. The punishment being that his wife must now bed another man.
Interestingly, Shayara ruling6 seems to suggest that the practice of nikah halala applies to divorces by means of triple talaq. Since, one of those kinds, talaq-e-biddat, is no longer valid, the only remaining divorce where this may apply in future is the second kind of divorce, talaq-e-hasan.
The Supreme Court of India in Shayara case7, explained the rule in the context of its explanation of talaq-e-hasan divorces, stating that,
119. Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, … as soon as the third declaration is made, the “talaq” becomes irrevocable, and the marriage stands dissolved, whereafter, the wife has to observe the required “iddat” (the period after divorce, during which a woman cannot remarry. Its purpose is to ensure, that the male parent of any offspring is clearly identified). After the third “iddat”, the husband and wife cannot remarry, unless the wife first marries someone else, and only after her marriage with another person has been dissolved (either through divorce or death), can the couple remarry. (emphasis added)
However, the nikah halala practice is widely criticised. A case is pending before the Supreme Court of India to declare that it is unconstitutional. The case is Sameena Begum v. Union of India8, which was joined with a larger writ petition in Ashwini Kumar Upadhyay v. Union of India9 as part of public interest litigation (PIL). Although the cases have already been pending for several years, it is unlikely that a decision will be rendered in the near future. Nonetheless, there is a distinct possibility that the Supreme Court will declare it to be unconstitutional.
International Family Law
The intricate details and the resulting confusion related to the practices like talaq-e-ahsan and nikah halala, which are still valid in India, but unheard of in the western countries, are often exploited and twisted by some parties of Indian origin living outside of India for their own personal gain. Some of these parties which are embroiled in international divorces solely and falsely rely on these uncodified provisions before foreign courts to establish the existence (or non-existence) of a marriage, notwithstanding, plenty of evidence suggesting otherwise.
By way of an example, based on the particular facts of their own case and their personal agenda, one party may claim that the divorce between them was talaq-e-hasan, while the other may claim that it was talaq-e-biddat. Both are triple divorces, but one form is no longer valid, and it is easy to twist the facts accordingly. Similarly, one party may rely on the practice of halala to substantiate their stand, by arguing that their marriage is invalid because halala was not observed or was observed incorrectly. Since these practices are not properly defined, and since there are various primary sources of Indian Muslim law which are not statutory, the outcome of such cases is mostly dependent on personal interpretation of such practices on a case-by-case basis.
In Rashid Ahmad v. Anisa Khatun10, the Privy Council held that once an irrevocable divorce takes place between a husband and a wife, and a subsequent remarriage is then said to have taken place between them, the burden of proof that the wife had in the interval married another husband, who had then died or divorced her before the remarriage to her first husband (i.e. that nikah halala was performed) rested firmly on the party making such a claim.
Thus, the parties making such claims must then substantiate their claims with evidence that seems to add to the confusion in a foreign court rather than eliminating it.
To make matters more complicated, the dissatisfied party will then initiate a similar proceeding in India in a clear attempt of forum shopping.
Such tactics only serve to delay and frustrate the legal procedures and result in the wastage of the court's time and throw the parties into a never-ending whirlwind of a litigious circle.
† Author is a dual-qualified Attorney, is licensed to practice law in the courts of India and the State of New York. Author can be reached at <email@example.com>.