Invalidate all forms of unilateral talaq

UPSC Syllabus Topic: GS Paper 2- Issues related to Constitution, GS 1- Issues Related to Women.

Introduction

Invalidating all forms of unilateral talaq raises a core question about fairness, equality, and consent in Muslim marriage and divorce. Recent judicial concern shows that practices allowing a husband to end marriage alone, even through agents, break the idea of marriage as an equal bond. The issue is not faith versus law. It is about restoring the Koranic process, protecting women’s dignity, and aligning personal law with constitutional equality and natural justice.

Nature of Marriage in Islam

1. Marriage as a contract between equals: Islam treats marriage as a firm but dissoluble contract between two equal adults. It is not a sacrament that places the husband above the wife. This equality rules out any right of one spouse to end the marriage alone.
2. Meaning of the Koranic terms: The Koran uses uqdatan-nikah as the bond of marriage and meesaaqan ghaleean as a solemn covenant. These terms show consent, knowledge, and free will of both spouses, similar to a modern prenuptial contract.
3. Rejection of unilateral authority: Because marriage is based on equality, the husband cannot act as judge in his own dispute. Unilateral divorce violates the principle of natural justice, where no one decides a matter that affects only their own interest.

Koranic Framework for Divorce

1. Emphasis on reconciliation: The Koran allows divorce only after sincere efforts to save the marriage. It treats divorce as a last step, not a quick personal choice of one spouse.
2. Four mandatory steps before talaq: First comes private advice and dialogue to resolve the issue. Second is temporary separation to cool tensions. Third is clear communication about the seriousness of the dispute and the harm of continued conflict.
3. Role of family arbitration: If problems continue, the matter must go before two arbiters from both families. This step brings community oversight and balances power between spouses.
4. Limited and phased talaq: Only after all four steps fail can the first talaq be given. During iddah, which usually lasts three menstrual cycles, no more than two talaqs are allowed.
5. Final talaq with safeguards: If reconciliation fails after iddah, a final talaq may end the marriage completely. Even then, the Koran allows reunion if the final talaq is not pronounced, and any final separation must be open, witnessed, and fair.

Extra-Koranic Talaq Practices

1. Absence of Koranic support: Practices like talaq-e-bid‘a, talaq-e-hasan, talaq-e-ahsan, and talaq-e-tafweed have no basis in the Koran or the Prophet’s example. They grew from later juristic opinions.
2. Patriarchal interpretation: These practices reflect a mindset that denied women legal personhood and autonomy. They allowed men to dominate marriage decisions without equal responsibility.
3. Talaq-e-hasan and agency: Talaq-e-hasan permits divorce through repeated pronouncements and even through an agent under tawkeel. This idea of agency in divorce has no Koranic backing and reduces women to passive recipients.
4. Social harm of unilateral divorce: Such practices allow marriage to end without reconciliation, notice, or fairness. They create fear, insecurity, and sudden loss of status for women.

Constitutional and Gender Justice Implications

1. Judicial concern over arbitrariness: The Supreme Court questioned talaq-e-hasan after seeing divorce notices sent by advocates without the husband’s own act. The Court asked whether a civilized society can allow such casual dissolution of marriage.
2. Violation of equality and dignity: Unilateral talaq breaks Article 14 by allowing arbitrary action by one spouse. It also harms women’s dignity and denies them equal voice in marital decisions.
3. Triple talaq judgment of 2017: In August 2017, the Supreme Court set aside instant triple talaq as unconstitutional. The Court held that it was manifestly arbitrary and allowed marriage to end without reconciliation.
4. Legislative action to give effect: The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018started on 19 September 2018, followed by further ordinances, and then the Act of 2019 with retrospective effect from 19 September 2018.
5. Core protections and reported impact: The 2019 Act makes instant triple talaq void and illegal, provides punishment up to three years with fine, and gives the woman custody and subsistence allowance.
6. Harmony between Islam and the Constitution: Striking down unilateral talaq supports both constitutional morality and Islamic principles. The Koranic process itself rejects gender discrimination and demands fairness.

Conclusion

The Koran treats marriage as an equal contract and divorce as a staged process that prioritises repair, arbitration, iddah, and witnesses. Talaq-e-hasan and other male-only methods allow arbitrary endings, even through agents. Striking down all unilateral talaq and keeping only the Koranic, gender-neutral procedure would protect dignity, equality, and fair process for spouses in a fair society.

Question for practice:

Examine how unilateral talaq practices conflict with the Koranic framework of marriage and divorce, and how constitutional and institutional responses in India have addressed these conflicts.

Source: The Hindu