Rai Aized Bhatti 21090126

Shakir Shafique 21090141

Muhammad Owais 21090065
MPL Research Paper

Validity of Triple Talaq

Talaq means repudiation or rejection. Under Muslim law, it released the husband and wife

from the marriage tie that can be eventual or immediate. Marriage is a civil contract, the

husband has special privileges over wife as he can divorce her at any time but a wife cannot do

that. From this, there emerges a concept of triple talaq. Triple talaq is also known as talaq ul

biddat that may be used by husband, according to Hanafi law. Talaq ul bidddat’s commonly

known method is the triple pronouncement of talaq al hasan to be brought together in a single

sitting. This type of talaq becomes irrevocable immediately after pronouncing by the husband

to the wife and the children born after this will be considered as illegitimate. In Rashid v. Anisa

Khatoon1, husband pronounced the talaq thrice without the presence of wife and talaqnama

was produced after four days but even after this they started living together and wife gave birth

to four children. The court held that the talaq was valid and there is no evidence of halala

marriage as well so the children born to them are illegitimate. Now we will talk about the

origin, effectiveness and, backing of the triple talaq in Islam.

Triple talaq is the recognized but disapproved form of dissolution of marriage. Firstly, it was

used by the Ommeyads to save themselves from the law. At the time of Prophet Muhammad

(PBUH), a man divorces his wife in one sitting by pronouncing word “Talaq” thrice. The matter

came to Prophet (PBUH), He condemned triple talaq as “playing with the book of God while I

am still alive”. After that its practice was not common till the time of Hazrat Umar (R.A).

1 (1932) 59 IA 21 (Alld): 1932 PC 25

“According to Syed Khalid Rashid, triple talaq was practiced during jahiliyyah period (times

of ignorance). The usual practice then was to pronounce the word ‘talaq’ two times and

withhold the third pronouncement, making the wife live thus in constant fear of the third

utterance. The practice of triple talaq was not allowed during the Prophet’s lifetime, during the

first Caliph Abu Bakr’s reign and also for more than two years during the second Caliph Umar’s

life”.2 There was a reason to consider triple talaq valid at that time because when the Arabs

conquered the other countries like Egypt and Syria, they find the women of these countries

more attractive and started marrying with them. But the women of these countries put a

condition for the Arab men to divorce their previous wives. The Arab men started using the

principle of triple talaq just to marry them because they knew that triple talaq in one sitting is

un-Islamic and have no effect. But after coming back from that countries they tried to continue

their first marriages which were destructive for the Arab women. So then Hazrat Umar (R.A)

made triple talaq effective to prevent the misuse and abuse of Islam.3 An article was written by

Nilofer Ahmed, a Quranic scholar, on triple talaq. It brings one’s attention to the destructive

effects of triple talaq. The act of pronouncing all three talaqs, or words of divorce, by the

husband in one breath has tragic outcomes and is due to the lack of knowledge of the

injunctions about divorce in the Quran and Hadith. The writer further prescribes what she

thinks is the best solution to abolish the practice of triple talaq, which is to follow in the

footsteps of Hazrat Umar. He would accept the three-in-one talaq as being valid, final and

irrevocable, but would give severe punishment to the culprit.4

In this part of the research we will further look into all the relevant material available and try

to establish how the Quranic injunctions and practice of triple talaq contradict each other. The

Holy Quran lays great emphasis on the bond of nikkah and gives great detail on how one can

2 Taslima Yasmin, The Ban on Triple Talaq: The Legal Context of Bangladesh and Pakistan, (South Asia Journal,2019)
3 Prateek Kushwaha, The journey of triple Talaq in India, (International Journal of Law, March 2018)
4 Nilofer Ahmed, Triple Talaq, (Dawn, 2018)
procedurally come out of it. There should be effort for re-conciliation as declared in the Holy

Quran, “And if you fear dissension between the two, send an arbitrator from his people and an

arbitrator from her people. If they both desire reconciliation, Allah will cause it between them.

Indeed, Allah is ever Knowing and Acquainted [with all things].”5 The decision of talaq is

advised not to be taken lightly and the community, arbitrators are called upon from both the

families to reconcile the couple. Hence, it cannot be dissolved whimsically. The essence of this

Ayah is that the first thing spouses should do is try to resolve the dispute; if not, then their

families should try to resolve the dispute rather than divorcing the wife and end their

relationship. There is a proper procedure for Talaq laid down in the Quran in the verses of

Surah Al-Baqarah that are;

“Those who intend to divorce their wives shall wait four months; if they change their minds

and reconcile, then God is forgiver, merciful. If they go through with the divorce, then God is

hearer, knower.”6

“And the divorced women must wait for three menstrual courses… and their husbands are fully

entitled to take them back (as their wives) during this waiting period, if they desire

reconciliation.”7

“Divorce may be pronounced twice; then the wife may either be kept back in fairness or be

allowed to separate in fairness. Then, if the husband divorces his wife (for the third time), she

shall not remain lawful for him after this divorce, unless she marries another husband…”8

The motive behind the wait is to give the man a chance to rethink his decision while the spouses

are physically separated. Decisions made in anger can be reviewed. Quran clearly mentioned

5 The Holy Quran (4:35)

6 The Holy Quran (2:227)
7 The Holy Quran (2:228)
8 The Holy Quran (2:229)
that those who wanted to divorce their wives or have the intention to do so shall have to wait

for four months and must try to reconcile and to change their views about their relationship and

try not to end their marriage, and if the single divorce happened that the divorced woman must

wait for three menstrual cycles that there is a little hope for reconciliation and also that their

husbands are fully entitled to have them back as legitimate wives during the waiting period in

case of reconciliation. There is no verse in the Quran, which gives the legality or the notion of

triple talaq. Triple talaq wholly demolishes this perspective and leaves no room for revision if

the man changes his mind. There is another verse of Quran which talked about the prescribed

period as well. “O Prophet, when you divorce women, divorce them for their prescribed

waiting-periods, and count the waiting-period accurately, and fear Allah, your Lord. Surah Al-

Talaq [65]”9 There is an incident from the life of Prophet Muhammad (PBUH) which refrains

the practice of “Triple Talaq” and declared it invalid. There is an incident which is reported by

Imam Ahmad, that Abu Rakanah divorced his wife by saying “I divorce you thrice”, then he

regretted it and went to the Holy Prophet (Peace Be Upon Him), so the Prophet (peace and

blessings of Allah be upon him) returned her to him with one word and said, “This is only one

(divorce).”10 It can be derived from the above incident that there is no concept of triple talaq in

one sitting, also that if the husband pronounces talaq three times, then it will be considered as

one and will have no consequences for the spouses.

The validity of triple talaq came under discussion in the case of Sardar v Malik Khan in the

Lahore High Court. It was held that the proper form as laid down in the Quran becomes final

and absolute after the observance of iddat, in this way enough time is given to the husband to

deliberate over his decision and to retrieve it if he so decides. The main objective of this rule

9The Holy Quran Surah Al Talaq 65

10Dr. Muhammad Munir, Three or one Talaq? – An analysis of some fresh fatwas on the legal effect of Three Talaqs in
Pakistan and India
is to give parties enough time for reconciliation.11 In this case it was clearly decided that triple

talaq is invalid based on its contradiction with the injunctions of Islam. In other cases like

maintenance and inheritance, if the matter of triple talaq came to the court, for this courts rely

on the facts and also on the sects because in Sunni law triple talaq is valid but in Shia law, they

don’t consider it valid. LHC in this landmark judgment made it invalid. Now we will talk about

the Section 7 of Muslim Family Law Ordinance, how that is against the Islamic injunctions

and also whether it talked about the triple talaq and give any validity or procedure for this. Sub-

section 3 of this section will play an important role while analyzing either this section is against

the Islamic injunctions or not. This sub-section states that a talaq shall not be effective until

after the expiration of 90 days from the delivery of ordinance to the chairman that is contrary

to Islam because in Islam there is no concept of giving notice to the Chairman. If someone

gives talaq to his wife that will become effective after the waiting time prescribed in Quran. In

Allah Rakha v. Federation case12, it was held that section 7(3)(5) of the Muslim Family Laws

Ordinance, 1961 are repugnant to Islam. In another case law, Allah Dad v. Mukhtar and

another13, it was decided that divorce becomes effective even in the absence of notice to the

Chairman under Section 7. Ineffectiveness of divorce, in the absence of a notice to the

Chairman, as envisaged by section 7 was against the injunctions of Islam. So the MFLO section

7 is against the injunctions of Islam. About the procedure or validity of triple talaq, Dr.

Muhmmad Munir, in his book, discusses how the Muslim Family Law Ordinance 1961, has

abolished triple talaq. The procedure laid down in section 7 is largely applicable to one or two

pronouncements only and excludes three pronouncements. Furthermore, he points out some

portions of section 7 which are in clear contravention of the dictates of Islamic law."14 Section

11 2003 YLR 2623 (Lah.)

12 PLD 2000 FSC 1
13 1991 SCMR 1273
14 Muhammad Munir, Reforms in Triple Talaq in the Personal Laws of Muslim States and the Pakistani Legal

System: Continuity Versus Change, (International Review of Law,2012)

7 of MFLO didn’t give any procedure or not even talk about the triple talaq. In Roheela Yasmin

v. Neelofar Hassan case15, the court stated that Talaq-e-Bain operates as an irrevocable

divorce and takes effect immediately on its pronouncement/ execution. Considering

effect of Talaq-eBain, it appears that provisions of section 7 of Ordinance, 1961 has

ignored Talaq-eBain as Talaq-e-Bain does not provide any room for any reconciliation.

As we have seen through these cases, articles and Statutes, in Pakistan, triple talaq

don’t have any legal validity. Also the procedures available for talaq are against the

injunction of Islam.

Triple talaq is commonly used by the Sunni jurists. Imam Abu Hanifa, Imam Malik and Imam

Hanbal considered that pronouncing talaq thrice in succession/one sitting is not permissible but

they felt that such divorce would be effective. But according to Ibn Taimiyah, Ibn al-Qiyam,

and the Shi'a Imamiyah,16 pronouncing the word “talaq” three times in succession will be

considered as only one talaq and such divorce would have no legal validity. Imam Ibn

Taymiyyah showed that this was the position of Imam Ahmad Ibn Hanbal. Most Arabs as well

as Muslim states such as Egypt, Syria, Jordan, Afghanistan and Morocco are following Ibn

Taimiyah and Ibn al-Qiyam’s point of view.

We are going the extra mile to study triple talaq and its application in other countries such as

Sri-Lanka. “Sri Lanka’s Marriage and Divorce (Muslim) Act, 1951, as amended up to 2006,

seems to be the most ideal legislation on triple talaq.”17 Our argument against triple talaq to its

contradiction with the fundamental rights granted by the constitution. A similar case was that

of Rahmat Ullah v. State of U.P.18, in which the Lucknow Bench of the Allahabad High Court

15 2014 YLR 2315

16Dr. Muhammad Munir, Reforms in Triple Talaq in the Personal Laws of Muslim States and the Pakistani Legal
System: Continuity Versus Change, (International Review of Law,2012)
17 ibid

18 II (1994) DMC 64
declared triple talaq invalid. The court based its judgment on the fact that triple divorce gave

unbridled power to the husband to divorce his wife, hence, perpetuating discrimination on the

grounds of gender. The court further opined that since the practice of triple talaq denigrates

women, it violates the Constitution. Under these practices, a woman can be fully divorced by

the immediate pronouncement of a triple talaq. As it gives the exclusive right to the men to

end the marriage tie within one sitting that infringes the rights of women also it is against the

fundamental rights of women as it discriminates between both genders.

We have noticed that triple talaq is against the Quran and hadith but later it was used by the

people in the reign of Hazrat Umar (R.A) just to cater the situation or prevent the misuse of

teachings of Islam. Also, in a case law of LHC, it was declared invalid and MFLO doesn’t give

procedure or authentication to this type of Talaq. But in the contrary, the Sunni Jurists consider

it valid. So we suggest that government should make it invalid because it is against the

injunctions of Islam and also infringes the right of women. As there is no punishment

prescribed for this type of talaq in Quran and Sunnah so while making it invalid there should

be no punishment given to husband, unlike the India. But to discourage this type of talaq, the

concept of reciprocal benefits and matrimonial property can be attached to the dower.