Modes of Talaq

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MODES OF TALAQ

INTRODUCTION
Among the pre-Islamic Arab, the power of divorce possessed by the husband was
unlimited. They could divorce their wives at any time, for any reason or without
any reason. They could also revoke their divorce, and divorce again as many
times as they preferred. They could, moreover, if they were so inclined, swear
that they would have no intercourse with their wives, of adultery, dismiss them,
and leave them with such notoriety as would deter other suitors; while they
themselves would go exempt from any formal responsibility of maintenance or
legal punishment. In pre-Islamic Arabia, the Arab who was having number of his
wives, he was like -wise absolutely free to release himself from the marital tie.
His power in this connection was absolute and he was required or expected to
assign any reason for the it’s exercise, nor was he under the necessity or observing
any particular procedure, The word Talaq commonly used for this purpose. It
depended upon this dissolution whether he would dissolve the marriage
absolutely and thus set the woman free to many again or not. He might if he so
chose, revoke the divorce and resume marital connection. Sometimes an Arab
would pronounce Talaq ten times and take his wife and again divorce her and
then take her back and so on. The wife in such a predicament was entirely at the
mercy of the husband would renounce his wife by means of what was called a
suspensory divorce. This procedure did not dissolve the marriage but if only
enable the husband to refuse to live with his wife; the latter was not at liberty to
marry again.

CHAPTER – I - TALAQ

Talaq is an Arabic word and its literal meaning is ‘to release’. Under Muslim law,
Talaq means repudiation of marriage by the husband. As a mode of divorce, Talaq
is peculiar because a Muslim husband has an unrestricted right to divorce his wife
without giving any reason. Muslim law does not require the existence of any fault
or matrimonial offence as an excuse for Talaq. The Muslim concept of divorce is
that where it is impossible for the spouses to live together, they must separate
peacefully. The law gives to the husband an absolute authority to terminate the
marriage by pronouncing Talaq because in a society dominated by males, the
conjugal happiness primarily depends upon the efforts of the husbands. Whenever
a husband finds that the marriage cannot be continued happily (either because of
the misconduct of the wife or because of his own fault) he is empowered to
dissolve the marriage. But this absolute authority of pronouncing Talaq should
not be misused by the husband. In Islam “Talaq is permitted be impious”. The
Islamic policy has never been to confer an absolute authority of Talaq upon a
husband to be misused by him. But unfortunately, the unrestricted right to Talaq
has been misunderstood and Islamic guidelines for it has been ignored by the
society and the courts of law. The result is that there is no legal control over the
unfettered right of Muslim husband to dissolve the marriage by uttering few
words. However, an indirect check upon this right is the obligation of a husband
to pay the dower upon the dissolution of marriage.

CHAPTER – II - CONDITIONAL AND CONTINGENT TALAQ

A Talaq may either be absolute (i.e., unconditional) or subject to a condition or


contingency. An uncertain future event is called contingency: where the Talaq is
without any condition it takes effect immediately. A conditional or contingent
Talaq becomes effective only upon the fulfilment of the condition or happening
of the future event. Conditional and contingent Talaq is recognized only under
Sunni law; Shia law does not recognize conditional or contingent Talaq. Under
Sunni law a conditional or contingent Talaq is valid. But the conditions must not
be un-Islamic. If a condition is against the principles of Islam, the condition is
void and a Talaq cannot take place. For example, if the condition is that whenever
the wife would demand her Prompt Dower there would be Talaq by husband, the
condition is void and Talaq does not take place. Where the condition is valid, a
lawful Talaq is effected only upon the fulfilment of the condition or happening
of the specified event. In a conditional or contingent Talaq the marriage dissolves
as soon as the condition is fulfilled or the event takes place: further
pronouncement is not necessary. For example, in Bachchoo v. Bismillah, the
husband promised, in writing, to pay a maintenance allowance to the wife for
certain period. On failure of the husband to do so, the writing was to operate as
Talaqnama. It was held by the Allahabad High Court that it was a conditional
Talaq. The condition was non-payment of maintenance allowance to the wife the
condition was fulfilled. Thus, the Talaq became effective without any further
pronouncement.

CHAPTER – II – TALAQ-UL-SUNNAT OR REVOCABLE TALAQ

From the point of view of the mode of pronouncement and effect, there are two
kinds of Talaq:

1. Talaq-ul-Sunnat or revocable Talaq; and


2. Talaq-ul-Bidaat or irrevocable Talaq

The Talaq-ul-Sunnat or revocable Talaq may be pronounced either in the Ahsan


form or in the Hasan form. That is to say, Talaqul-Sunnat may be further sub-
divided into: (i) Talaq Ahsan (most proper); (ii) Talaq Hasan (proper). Talaq-ul-
Bidaat is irrevocable and becomes effective as soon as it is pronounced in any
way, indicating husband’s desire to dissolve the marriage. In brief, the
classification of the different kinds of Talaq is given below:

Talaq-ul-Sunnat (Revocable Talaq)

Talaq-ul-Sunnat is regarded to be the approved form of Talaq. It is called


Talaq-ul-Sunnat because it is used on the Prophet’s tradition (Sunna). As a
matter of fact, the Prophet always considered Talaq as an evil. If at all this evil
was to take place, the best formula was one in which there was possibility of
revoking the effects of this evil. With this idea in mind, the Prophet
recommended only revocable Talaq, because in this form, the evil
consequences of Talaq do not become final at once. There is possibility of
compromise and reconciliation between husband and wife. Talaq-ul-Sunnat is
also called as Talaq-ul-raje. Only this kind of Talaq was in practice during the
life of the Prophet. This mode of Talaq is recognized both by Sunnis as well
as by the Shia. Talaq-ulSunnat may be pronounced either in Ahsan or in the
Hasan form.

1. Talaq Ahsan (Most Proper)


Hedaya brands it as he most laudable divorce, where the husband
repudiates his wife by a single pronouncement in a period of tuhr (purity,
i.e., when the wife is free from her menstrual courses), during which he has
not had intercourse with her, and then leaves her to the observance of iddat.
The divorce remains revocable during the iddat, and the parties retain the
right of inheritance. According to the Hedaya, this method of divorce is the
most approved because the companions of the Prophet (Pease be upon him)
approved of it, and second, because it remains within the power of the
husband to revoke the divorce during iddat, which is three months, or till
delivery.
In a marriage not yet consummated, ahsan and hasan may be
pronouncement during menstruation also. Where the wife and husband are
living separate from each other, or where the wife is beyond the age of
menstruation (i.e.in old age), the condition of tuhr is not applicable, it is
also not applicable to a written divorce. This talak may be revoked either
by express words, or impliedly by cohabitation within the iddat period. On
such revocation, it is not necessary for the wife to undergo intermediary
marriage; the husband can simply say ‘I have retained you’. After the iddat
period lapsing without revocation, the talak becomes final and irrevocable.
Therefore, this is the most proper form of repudiation of marriage. The
reason is two fold:
First, there is possibility of revoking the pronouncement before expiry of
the Iddat period and not repeated.
In the Ahsan Talaq there is a single declaration during the period of purity
followed by no revocation by husband for three successive period of purity.
In this form, the following formalities are required:
a. The husband has to make a single pronouncement of Talaq during the Tuhr
of the wife. Tuhr is the period of wife’s purity i.e., a period between two
menstruations. As such, the period of Tuhr is the period during which
cohabitation is possible. But if a woman is not subjected to menstruation,
either because of old age or due to pregnancy, a Talaq against her may be
pronounced any time.
b. After this single pronouncement, the wife is to observe an Iddat of three
monthly courses. If she is pregnant at the time of pronouncement of the
Iddat is, till the delivery the child. During the period of the Iddat there
should be no revocation of Talaq by the husband. Revocation may be
express or implied. Cohabitation with the wife is an implied revocation of
Talaq. If the cohabitation takes place even once during the period, the
Talaq is revoked and it is presumed that the husband has reconciled with
the wife. Secondly, the evil words of Talaq are be uttered only once. Being
an evil, it is preferred that these words are not repeated. In the Ahsan Talaq
there is a single declaration during the words are

When the period of Iddat expires and the husband does not revoke the Talaq either
expressly or through consummation, the Talaq becomes irrevocable and final. It
may be noted that the characteristic feature of the Ahsan form of Talaq is a single
pronouncement followed by no revocation during the period of three month’s
Iddat. Therefore, where ahusband makes any declaration in anger, but realizing
his mistake afterwards, wants to cancel it, there is sufficient time for him to do
so. Single pronouncement of the civil words of Talaq and sufficient opportunity
to the spouses for reconciliation, are the two reasons for calling form as the ‘most
proper’ form of Talaq.

2. Talaq Hasan (Proper)


The hasan form of talaq, also an approved form but less approved than the
first (ahsan), consists of three successive pronouncements during three
consecutive period of purity (tuhr). Each of these pronouncements should
have been made at a time when no intercourse has taken place during that
particular period of purity.
The hasan form of talaq requires some explanation and a concrete
illustration should suffice. The husband (H) pronounces talaq on his wife
(W) for the first time during a period when W is free from her menstrual
courses. The husband and wife had not come together during this period of
purity. This is the first talaq. H resumes cohabitation or revokes this first
talaq in this period of purity. Thereafter in the following period of purity,
at a time when no intercourse has taken place, H pronounces the second
talaq. This talaq is again revoked by express words or by conduct and the
third period of purity is entered into. In this period, while no intercourse
having taken place, H for the third time pronounces the formula of divorce.
This third pronouncement operates in law as a final and irrevocable
dissolution of the marital tie. The marriage is dissolved; sexual intercourse
becomes unlawful; iddat becomes incumbent; remarriage between the
parties becomes impossible unless W lawfully marriage another husband,
and that other husband lawfully divorces her after the marriage has been
actually consummated.

CHAPTER – IV - TALAQ-UI-BIDAAT (IRREVOCABLE)


This Talaq is also known as Talaq-ul-Bain. It is a disapproved mode of divorce.
A peculiar feature of this Talaq is that it becomes effective as soon as the words
are pronounced and there is no possibility of reconciliation between the parties.
The Prophet never approved a Talaq in which there was no opportunity for
reconciliation. Therefore, the irrevocable Talaq was not in practice during the life.
The Talaq-ul-Bid’at has its origin in the second century of the Islamic era.
According to Ameer All, this mode of Talaq was introduced by the Omayad
Kings because they found the checks in the Prophet’s formula of Talaq
inconvenient to them. Since then this mode of Talaq has been in practice among
the Sunni Muslims

Shia Law

Under the Shia law, an irrevocable Talaq is not recognized. We have already seen
that in a Bid’at form there is no opportunity for the revocation of Talaq. A Bid’at
Talaq become final as soon as the words have been uttered and the marriage is
completely dissolved. A Sunni husband, who wants to divorce his wife
irrevocably, may do so in any of the following manners:

(a) The husband may make three pronouncements in a period of purity (Tuhr)
saying: “I divorce thee, I divorce thee, I divorce thee”. He may declare this
triplQ-Talaq even in one sentence saying: “I divorce thee thrice”, or “I
pronounce my first, second and third Talaq".
(b) The husband may make only one declaration in a period of purity
expressing his intention to divorce the wife irrevocable saying: “I divorce
thee irrevocably” or “I divorce thee in Bain”

CHAPTER – V – OTHER MODES OF TALAQ

A. Written Talaq

Under Shia law, the Talaq must be pronounced orally except where husband is
unable to speak. But, under Sunni law the Talaq may be oral or in writing. If the
words are clear and express, a written Talaq takes place immediately. That is to
say, it becomes irrevocable as soon as the Talaq is written. But where the writing
itself indicates any specific date or event on which the Talaq shall come into
force, the Talaq becomes effective from that very date or upon happening of the
specified event and not on the date when the letter reaches to wife. For example,
where the writing says, “When this my letter reaches thee, then thou are
repudiated” , the Talaq comes into effect (and becomes irrevocable) only after the
receipt of the letter by wife, not on the date on which it was written. However,
where a husband writes to his wife that she had been divorced on say 5 March,
1985 and that period of third divorce would expire on 5 May, 1985, the writing
is to be interpreted as Talaq Hasan which shall be completed only after two more
pronouncements.

B. Talaq-e-Tafweez (Delegated Divorce)

The power to give divorce by the husband, he may delegate it to the wife or to a
third person, either absolutely or conditionally and either for a particular period
or permanently. The person to whom the power is thus delegated may then
pronounce the divorce accordingly; such a delegation of power is called Taweez.

A temporary delegation of the power is irrevocable but a permanent delegation


may not be revoked.

When a man has said to his wife, ‘Repudiate’ thyself, she can repudiate herself at
the meeting and he can divest her of the power. But if there is no reference to his
pleasure it is an appointment of agency which is not restricted to the meeting and
may be revoked. When a man has said to his wife, ‘choose thyself, or this month,
or a month, or a year, she may exercise the option at any time within the given
period.

That is, the husband may delegate the power of divorce to his wife. He may do
so at the time of marriage contract or at any time when he so likes.
This doctrine is peculiar to the Muslim Law and has no parallel in other systems.
Fyzee says that this form of delegate divorce is now beginning to be fairly
common in India. The Indian High Court have repeatedly held as valid the
agreement by which the husband authorizes the wife to divorce herself from him
in the event of his marrying a second wife without her consent.

The doctrine of the delegation of the power of divorce is based on an incident


mentioned in the Holy Quran where the Prophet (Peace be upon him) told his
wives that they were at liberty to live with him or to got separated from him as
they chose. Thus it is stated: “O Prophet, say to your wives, ‘If you seek the life
of this world and all its finery then come, I will make provision for you, and
release you honorably”.

CONCLUSION

The Islamic policy has never been to confer an absolute authority of Talaq upon a
husband to be misused by him. But unfortunately, the unrestricted right to Talaq has
been misunderstood and Islamic guidelines for it has been ignored by the society and
the courts of law. The result is that there is no legal control over the unfettered right of
Muslim husband to dissolve the marriage by uttering few words. However, an indirect
check upon this right is the obligation of a husband to pay the dower upon the
dissolution of marriage.

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