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Talaq & its Prior Conditions

Legal notes

By M.R.Shamshad

Time and again the issue of Talaq and the consequences thereof has remained an issue of cantankerous debate in the country as well as within different sections of the Muslim community. This issue has also gone to courts of law resulting in authoritative pronouncements.

Simultaneously, Muslim ulama have also given their opinion based on the original texts of Islam (fatwa) on various aspects of this issue.

Again, the issue has become a matter of concern in view of a Public Interest Litigation having been filed in Madras High Court seeking Writ to declare that ‘Qazis’ in India, particularly in the State of Tamil Nadu, are not empowered to certify Talaq and consequentially seeking direction restraining them from issuing such certificates and other documents certifying or approving Talaq.

In principle, the rules relating to marriage and dissolution of marriage are protected by the Muslim Personal Law (Shariat) Application Act of 1937 and they shall be governed in terms of the Muslim Personal Law. Maintaining the said position, after Shah Bano case in 1986, the Central Government passed a legislation defining the entitlement of Mahr and other properties and maintenance of women after their divorce from their husbands. The PIL raises the issue as to why the Qazis should or not be permitted to certify Talaq.

Interestingly, the provision for appointment of Qazis was created long time back in 1880 by the (Central) Kazi Act. Various states like Tamil Nadu, West Bengal, UP, Punjab, Assam etc notified the said Act at some point of time and, accordingly, the said states could appoint Qazis as per the Act of 1880. The Act, however, does not define the scope and authority of the Qazis so appointed, though there is clarification to the effect that the Act does not confer judicial and administrative powers of the said appointed Qazis. The question is: whether the Qazi should issue certificates certifying the Talaq?

Coming to the Islamic injunctions, the question one may ask as to whether it is necessary to issue such a certificate? If yes, who would issue such certificates? The answer to the first question would, technically, be that such certificates are not needed mandatorily. In Shia sect, the Talaq being a valid repudiation of marriage is not allowed in writing if the husband has the ability to pronounce the same. On the other hand, amongst the Sunnis, the Talaq may be affected by writing as well as by pronouncement in words and in both the cases of repudiation of marriages, the real intention of the husband has to be determined in order to consider  Talaq as valid. Thus, whether the Qazi issues a certificate of Talaq or certifies the same in writing or not, becomes irrelevant. But, if for whatever reason, the certificate is required, why the state governments should not appoint appropriate number of Qazis for local areas after consulting the Muslim residents of such local areas? Secondly, if it is felt that the Act does not create complete safeguard to regulate the function of Qazis, the Act may be amended by incorporating suitable provisions rather than neglecting the Act itself and passing remarks on the functioning of Qazis.

The PIL has thereafter focused on the way certificates of pronouncements of Talaq are issued by not following the necessary pre-conditions like reconciliation, arbitration etc. which are conditions precedent for pronouncing Talaq and the Qazis do not ensure the compliance of such conditions precedent and mechanically issue the certificates. This is a matter of relevance and needs to be considered keeping in view the position that existed since the beginning of Islam, the practice prior to Islam and the judicial pronouncements by courts of law in our country.

As far as pre-Islamic era is concerned, as stated by Syed Ameer Ali, probably the best lawyer on this issue of recent past, divorce required no formula to make it operational and valid as there was no check on the irresponsible power of the husband, a simple intimation from him to the effect that the tie was dissolved, was considered sufficient. This exercise was strongly disapproved by the Prophet of Islam and this resulted in bringing in the concept of prior reconciliation and arbitration before finally pronouncing Talaq.  Accordingly, it became certain that there are necessary preconditions before pronouncement of Talaq.

The Shariah has bestowed very special and prime importance to the husband and wife relationship and has permitted its severance only in a situation where there is no hope of reconciliation and resumption of normal family life. The “reconciliation” and “prior attempt” to resolve the issues leading to divorce are explicit in the Holy Quran (An- Nisa’ - 4:35). It states that once the couple feels breach of obligations to each other, two arbitrators, one from husband’s family and the other from wife’s family be appointed for reconciliation and resolution. The said principle of reconciliation is also inherent in the chapter of Talaq in the Holy Quran, where the process of pronouncing Talaq is stated to be at different occasions, after particular intervals (At-Talaq - 65:1-2) which would normally extend to three months. The third pronouncement of talaq, the last one, is the final one and thereafter husband cannot take her back (2:229, Al-Baqra).

Evidently, after the failure of reconciliation, the decision to repudiate the matrimonial bond shall be a thoughtful consideration of the husband after bonafide efforts of both the parties to resolve the issues which led to the situation of pronouncement of Talaq. The seriousness of the final pronouncement of Talaq is also reflected by regulating the subsequent conduct of the separated couple by imposing prohibition on their immediate remarriage (2:230 Al-Baqra). The object is that the husband shall not pronounce Talaq in haste and due to momentary anger and even due to the reasons which are reconcilable by the parties. Even in the cases where the wife initiates the process of repudiation of marriage through the process of ‘khula’, it is essential to trace out the factors which created impossibility for the woman to abide by the injunctions in the conjugal relationship. The reasoning of the reasons forming grounds for Talaq or Khula’ is a different issue.

Here the matter of concern is the conditions precedent and their compliances prior to pronouncement of Talaq which is very manifest and unambiguously required to be adhered to prior to the pronouncement of Talaq. Even the Supreme Court of India in Shamim Ara case, relying upon the Shariah law, has held that the requirement of prior reconciliation is a necessary requirement. As far as the knowledge of wife, requiring her presence at the time of pronouncement of Talaq is concerned, it is settled that the presence of wife is not mandatory at the time of pronouncement. However, to make the pronouncement effective, it needs to be communicated to her at the earliest. The Delhi High Court judgment of 2007 (of Badar D. Ahmad, J) has found the logic of immediate communication by stating that the nature of Talaq will govern the subsequent conduct of the lady concerned as the pronouncement materially changes her rights and obligations.

Going a step further, if the Quranic way of pronouncements of Talaq is to be followed, i.e., Talaq at three different occasions after a particular interval, the issue of the wife’s ignorance and the concern that preconditions were not followed, shall stand addressed.

Mostly, the issues leading to a situation, as raised in the PIL, has answers in the earlier judicial pronouncements of different High Courts where the validity of the pronouncement of triple Talaq at one sitting has been stated to be invalid. Even the ulama also opine that the said process of triple Talaq at one time is not correct, even as per Shariat as this process is stated to be ‘Bid’at’ (innovation) which is not recognised by various schools of thought within Islam. Once the pronouncement of Talaq in three different sittings is made mandatory, the issue of ignorance of wife about the Talaq and non-compliance of the pre-conditions of Talaq will be addressed. The said process certainly can be undertaken through the institution of Qazi by ensuring his function as per the Muslim personal law.

The institution of Qazi needs to be set up through proper regulation rather than attacking the same. The said institution could be from the Muslim civil society on the line of private forum of arbitrations set up by corporate bodies as well as in terms of the Kazis Act 1880.
The author is Advocate-on-Record, Supreme Court of India

This article appeared in The Milli Gazette print issue of 1-15 April 2014 on page no. 7

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