The Supreme Court of India, by a majority decision of 3:2, has pronounced the Muslim practice of instant triple talaq unconstitutional as it is violative of several provisions of the Constitution of India. At the backdrop of this judgment, a question may arise: what is the legal position of triple talaq in Bangladesh? The persons with legal background are more or less acquainted with the matter, but not all the other people.
Although talaq-al-bida (a single irrevocable pronouncement) is thought to be a sinful act, this is practiced by the followers of Hanafi sub-school of Sunni school. As the Bangladeshi Muslims are mostly the followers of Hanafi School, this practice also exists in our country. Before the promulgation of Muslim Family Laws Ordinance of 1961, there was no bar on the practice of triple talaq. This Ordinance has brought about some significant changes in the matter of talaq in section 7. At first, section 7(1) states that the husband has to serve a written notice of his so pronouncing a talaq to the chairman of the local government unit soon after the pronouncement of talaq in any form whatsoever. As per section 7(3), unless revoked earlier, a talaq shall not be effective until the expiration of 90 days from the day on which the notice is delivered to the chairman and the chairman will constitute an arbitration council for reconciliation between the parties after getting the notice under section 7(4).
If we go through these sub-sections of section 7, it seems that the legislature at first recognised the talaq-al-bidda (triple talaq) as a valid form of talaq because it uses the phrase 'any form whatsoever'. So the next question is: how can we then say that triple talaq is prohibited by section 7? In interpreting this section, scholars come to the conclusion that ultimately triple talaq is prohibited under this section as the effectiveness of talaq under this section is delayed for 90 days from the service of notice to the chairman and also initiative of reconciliation is tried between the parties which are not possible in case of talaq-al-bidda (triple talaq) as it becomes effective instantly. This position is also confirmed by the Supreme Court of Pakistan in the case of Syed Ali Nawaz Gardezi v Lt.-Col. Muhammad Yusuf 15 DLR (SC) 9 (known as Ali Newaz Gardezi's case) where their Lordships have observed that 'talaq-i-biddat is not outside the purview of section 7 as the words “talaq in any form whatsoever” clearly indicate. With utmost respect it becomes very difficult for us to conclude in the face of what sub-section (3) says, that talaq-i-biddat has not completely and irrevocably lost its right of validity. There appears no doubt that the provisions of sub-section (3) are wholly incompatible with talaq-i-biddat mode of divorce.'
Therefore, the court arrived at this decision of invalidity of the triple talaq on the basis of the provision of postponing the effectiveness of talaq for 90 days from the date of service of notice to the chairman. However, ambiguity arises due to different interpretations of the provision of this service of notice to the chairman by our apex court. In some cases (Ali Newaz Gardezi's case; Abdul Aziz v Rezia Khatoon 21 DLR 733; Serajul Islam and others v State 46 DLR 700; Dilruba Aktar v AHM Mohsin 55 DLR (2003) 568), the court held that non-service of notice under section 7(1) renders the talaq ineffective. Again in some cases (Serajul Islam v. Helena Begum and others 48 DLR 48; Md. Nurul Islam v. Nur Ayesha Begum 16 BLC (2007) 10), the court decided that mere non-service of notice under section 7(1) cannot invalidate an otherwise valid talaq.
Although these cases were not directly connected with triple talaq except the Ali Newaz Gardezi's case and the decisions arrived at in each case were due to the individuality of the facts of each case, generalisation of principle to the effect that non-service of notice to the chairman under section 7(1) cannot invalidate an otherwise valid talaq hits the very foundation of the invalidity of triple talaq under section 7. If the service of notice to the chairman is immaterial for the validity of a talaq, then how can we rely on the provision of passing of 90 days from the service of notice as the basis of invalidating triple talaq? Again, strict adherence to the principle of invalidating an otherwise valid talaq due to non-service of notice may give rise to some practical problems.
Therefore, it can be a better course to abolish the practice of talaq-al-bida (triple talaq) altogether either through legislative enactment (amendment of the prevailing provision) rather than drawing any conclusion by analogy or through arriving at identical decision of Indian jurisdiction by our apex court (if this practice is ever challenged as unconstitutional in the court).
The writer is a Lecturer, Department of Law, University of Dhaka.