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