Legal Advice

Triple talaq after the delivery of child is possible or not?

Question: I want to divorce my wife because she is a characterless lady. She is now pregnant and I am doubtful whether she is pregnant by me or any other else. In this situation the idea of divorce should be stayed. I want to know whether can I pronounce talaq after delivery of child according to the Muslim law applicable in Sunni Muslim in India?

Advise

In India, the personal laws governing divorce for Sunni Muslims are primarily governed by the Muslim Personal Law (Shariat) Application Act, 1937. Under this law, the concept of “talaq” exists, but it has undergone changes through subsequent legal developments.

In September 2021, the practice of “triple talaq” (pronouncing talaq three times in one sitting) was declared unconstitutional by the Supreme Court of India in 2017. This ruling stated that instant triple talaq is not a valid form of divorce and must be accompanied by appropriate legal procedures. The court directed the government to legislate on the matter.

The Muslim Women (Protection of Rights on Marriage) Act, 2019 was subsequently enacted to address the issue of instant triple talaq and make it a criminal offense. The act provides for imprisonment and a fine for any person who pronounces instant triple talaq.

I would be better for you to adopt the process of talaq-ul-sunnah and it is still a legal and valid process of pronouncement of talaq. Talaq-ul-Sunnah refers to the form of divorce prescribed in Sunni Islamic law, which follows the teachings and practices of Prophet Muhammad (peace be upon him).

Talaq-ul-Sunnah is considered the recommended or preferred form of divorce within Sunni Muslim jurisprudence. In Sunni Islamic law, Talaq-ul-Sunnah can be pronounced in two ways:

  1. Talaq-ul-Raj’i (revocable divorce): This form of divorce allows the husband to pronounce a divorce to his wife while she is in a state of purity (not menstruating) and without having had sexual intercourse during that period. Following the pronouncement of Talaq-ul-Raj’i, the wife enters into a waiting period called ‘Iddah, which lasts for three menstrual cycles or three months (whichever is longer). During this period, the husband has the right to revoke the divorce and reconcile with his wife without the need for a new marriage contract.
  2. Talaq-ul-Ba’in (irrevocable divorce): This form of divorce is a more severe and final form of divorce. It is pronounced when the husband intends to terminate the marriage irrevocably, without any possibility of reconciliation or revocation. Talaq-ul-Ba’in takes immediate effect, and the couple is permanently separated. Reconciliation is only possible if the wife subsequently marries another man, consummates the new marriage, and then becomes widowed or divorced from that subsequent husband.

It is important to note that the specifics of divorce procedures may vary depending on local customs, cultural practices, and interpretations of Islamic law within different Sunni schools of thought. Therefore, it is advisable to consult with a qualified Islamic scholar or a family law attorney well-versed in Islamic jurisprudence to obtain accurate and detailed guidance on divorce procedures specific to your situation.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Family Law

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