TALAQ UNDER MUSLIM LAW

PROF DR NARESH VATS

DEAN ACADEMICS
RAJIV GANDHI NATIONAL
UNIVERSITY OF LAW PUNJAB
 TALAQ UNDER MUSLIM
• Firm Union of the husband and wife is a necessary condition for a happy
family life. Islam therefore, insists upon the subsistence of a marriage and
prescribes that breach of marriage contract should be avoided. Initially no
marriage is contracted to be dissolved but due to unfortunate circumstances the
matrimonial contract is broken. One of the ways of such dissolution is by way
of divorce. Under Muslim law the divorce may take place by the act of the
parties themselves or by a decree of the court of law. In Islam, divorce is
considered as an exception.
• The Prophet declared that among the things which have been permitted by law,
divorce is the worst. Divorce being an evil, it must be avoided as far as
possible. But in some occasions this evil becomes a necessity, because when it
is impossible for the parties to the marriage to carry on their union with mutual
affection and love then it is better to allow them to get separated than compel
them to live together in an atmosphere of hatred and disaffection.
• The basis of divorce in Islamic law is the inability of the spouses to live
together rather than any specific cause (or guilt of a party) on account of which
the parties cannot live together. A divorce may be either by the act of the
husband or by the act of the wife. There are several modes of divorce under the
Muslim law, which will be discussed hereafter.
 Modes of Divorce
• Firstly, A husband may divorce his wife by repudiating the
marriage without giving any reason. Pronouncement of
such words which signify his intention to disown the wife is
sufficient. Generally this is done by Talaaq. But he may also
divorce by Ila, and Zihar which differ from Talaaq only in
form, not in substance.
• Secondly, A wife cannot divorce her husband of her own
accord. She can divorce the husband only when the
husband has delegated such a right to her or under an
agreement. Under an agreement the wife may divorce her
husband either by Khula or Mubarat.
• Before 1939, a Muslim wife had no right to seek divorce
except on the ground of false charges of adultery, insanity
or impotency of the husband. But the Dissolution of
Muslim Marriages Act 1939 lays down several other
grounds on the basis of which a Muslim wife may get
divorce decree passed by the order of the court.
 Categories of Divorce
There are two categories of divorce under the Muslim law:
1.) EXTRA JUDICIAL DIVORCE, and
2.) JUDICIAL DIVORCE
The category of extra judicial divorce can be further subdivided into
three types, namely,
(i)-By Husband- Talaaq, Ila, and Zihar.
(ii)-By Wife- Talaaq-i-tafweez, LIAN.
(iii)-By Mutual agreement- Khula and Mubarat.
• The second category is the right of the wife to give divorce under
the Dissolution of Muslim Marriages Act 1939.
• BY HUSBAND-
• TALAQ: Talaq in its primitive sense means dismission. In its literal
meaning, it means “setting free”, “letting loose”, or taking off any
“ties or restraint”.
• In Muslim Law it means freedom from the bondage of marriage and
not from any other bondage. In legal sense it means dissolution of
marriage by husband using appropriate words. In other words
talaaq is repudiation of marriage by the husband in accordance with
the procedure laid down by the law.
 TALAQ BY HUSBAND
• The husband’s authority to pronounce unilateral divorce is often
cited:
• Men are maintainers of women, because Allah has made them to excel
and to spend out of their property (on their maintenance and dower).
When the husband exercises his right to pronounce divorce, technically
this is known as talaaq. All the schools of the Sunnis and the Shias
recognize it except some differences. Talaq is so widespread that even
the Imams practiced it. The absolute power of a Muslim husband of
divorcing his wife unilaterally, without assigning any reason, literally at
his whim, even in a jest/prank or in a state of intoxication, and without
recourse to the court, and even in the absence of the wife, is recognized
in modern India. All that is necessary is that the husband should
pronounce talaaq; how he does it, when he does it, or in what he does it
is not very essential.
• In Hannefa v. Pathummal, Khalid, J., termed this as “monstrosity”.
Among the Sunnis, talaaq may be express, implied, contingent.
constructive or even delegated. The Shias recognize only the express
and the delegated forms of talaaq.
 TALAQ BY HUSBAND
• CONDITIONS FOR A VALID TALAAQ
• 1) Capacity: Every Muslim husband of sound mind;
• who has attained the age of puberty; and
• is competent to pronounce talaaq.
• It is not necessary for him to give any reason for his
pronouncement. A husband who is minor or of unsound
mind cannot pronounce it. Talaaq by a minor or of a
person of unsound mind is void and ineffective.
However, if a husband is lunatic then talaaq
pronounced by him during “lucid interval” is valid.
• The guardian cannot pronounce talaaq on behalf of a
minor husband. When insane husband has no guardian,
the Qazi or a judge has the right to dissolve the
marriage in the interest of such a husband.
TALAQ BY HUSBAND (Condition-cont’d)
• 2) Free Consent: Except under Hanafi law, the consent of the husband in
pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq,
pronounced under compulsion, coercion, undue influence, fraud and
voluntary intoxication etc., is valid and dissolves the marriage.
• 3) Involuntary intoxication: Talaaq pronounced under forced or involuntary
intoxication is void even under the Hanafi law.
• SHIA LAW:
• Under the Shia law (and also under other schools of Sunnis) a talaaq
pronounced under compulsion, coercion, undue influence, fraud, or
voluntary intoxication is void and ineffective.
• 3) Formalities: According to Sunni law, a talaaq, may be oral or in writing.
It may be simply uttered by the husband or he may write a Talaaqnama.
No specific formula or use of any particular word is required to constitute
a valid talaaq. Any expression which clearly indicates the husband’s desire
to break the marriage is sufficient. It need not be made in the presence of
the witnesses.
• According to Shias, talaaq, must be pronounced orally, except where the
husband is unable to speak. If the husband can speak but gives it in
writing, the talaaq, is void under Shia law. Here talaaq must be
pronounced in the presence of two witnesses.
TALAQ BY HUSBAND (Condition-cont’d)
• 4) Express words: The words of talaaq must clearly
indicate the husband’s intention to dissolve the
marriage. If the pronouncement is not express and is
ambiguous then it is absolutely necessary to prove that
the husband clearly intends to dissolve the marriage.
• Express Talaaq (by husband):
• When clear and unequivocal words, such as “I have
divorced thee” are uttered, the divorce is express. The
express talaaq, falls into two categories:
• • Talaaq-e-sunnat,
• Talaaq-e-biddat.
TALAAQ-E-SUNNAT HAS TWO FORMS:
• Talaaq-e-ahasan (Most approved)
• Talaaq-e-hasan (Less approved).
 EXPRESS TALAQ BY HUSBAND
• TALAAQ-E-SUNNAT is considered to be in accordance with the dictates of
Prophet Mohammad.
• The AHASAN TALAAQ: consists of a single pronouncement of divorce made
in the period of tuhr (purity, between two menstruations), or at any time,
if the wife is free from menstruation, followed by abstinence from sexual
intercourse during the period of iddat. The requirement that the
pronouncement during a period of tuhr applies only to oral divorce and
does not apply to talaaq in writing. Similarly, this requirement is not
applicable when the wife has passed the age of menstruation or the
parties have been away from each other for a long time, or when the
marriage has not been consummated. The advantage of this form is that
divorce can revoked at any time before the completion of the period of
iddat period, thus hasty, thoughtless divorce can be prevented. The
revocation may effected expressly or impliedly.
• Thus, if before the completion of iddat, the husband resumes cohabitation
with his wife or says I have retained thee” the divorce is revoked.
Resumption of sexual intercourse before the completion of period of iddat
also results in the revocation of divorce.
• The Raad-ul-Muhtar puts it thus: “It is proper and right to observe this
form, for human nature is apt to be mislead and to lead astray the
mind far to perceive faults which may not exist and to commit mistakes
of which one is certain to feel ashamed afterwards”
 EXPRESS TALAQ BY HUSBAND
• HASAN-TALAAQ - :
• In this the husband is required to pronounce the formula of talaaq
THREE TIME during Three Successive Tuhrs. If the wife has crossed
the age of menstruation, the pronouncement of it may be made
after the interval of a month or thirty days between the successive
pronouncements. When the last pronouncement is made, the
talaaq, becomes final and irrevocable. It is necessary that each of the
three pronouncements should be made at a time when no intercourse
has taken place during the period of Tuhr. Example: W, a wife, is
having her period of purity and no sexual intercourse has taken place. at
this time, her husband, H, pronounces talaaq, on her. This is the first
pronouncement by express words. Then again, when she enters the next
period of purity, and before he indulges in sexual intercourse, he makes
the second pronouncement. Again when the wife enters her third period
of purity and before any intercourse takes place H pronounces the third
pronouncement. The moment H makes this third pronouncement, the
marriage stands dissolved irrevocably, irrespective of iddat.
 EXPRESS TALAQ BY HUSBAND
• TALAAQ-I-BIDDAT(bad in form/unapproved)
• It came into vogue during the second century of
Islam. It has two forms:
• (i) the triple declaration of talaaq made in a period
of purity, either in one sentence or in three,
• (ii) the other form constitutes a single irrevocable
pronouncement of divorce made in a period of
tuhr or even otherwise. This type of talaaq is not
recognized by the Shias. This form of divorce is
condemned. It is considered bad, because of its
irrevocability. (held unconstitutional by SC in the
case of Shayara Bano case in 2017)
 TALAQ BY HUSBAND
• ILA: Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that
are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not
to have sexual intercourse with his wife. Followed by this oath, there is no consummation for
a period of four months. After the expiry of the fourth month, the marriage dissolves
irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and
the marriage does not dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as
divorce without order of the court of law. After the expiry of the fourth month, the wife is
simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four
months, the wife may file a suit for restitution of conjugal rights against the husband.
• ZIHAR: In this mode the husband compares his wife with a woman within his prohibited
relationship e.g., mother or sister etc. The husband would say that from today the wife is like
his mother or sister. After such a comparison the husband does not cohabit with his wife for a
period of four months. Upon the expiry of the said period Zihar is complete.
• After the expiry of fourth month the wife has following rights:
(i) She may go to the court to get a decree of judicial divorce
(ii) She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the
wife cannot seek judicial divorce. It can be revoked if:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty people, or,
(iii) He frees a slave.
According to Shia law Zihar must be performed in the presence of two witnesses.
 DIVORCE BY MUTUAL AGREEMENT
• KHULA AND MUBARAT:
• They are two forms of divorce by mutual consent but in either of them, the wife
has to part with her dower or a part of some other property.
• A verse in the Holy Quran runs as: “And it not lawful for you that ye take from
women out of that which ye have given them: except (in the case) when both
fear that they may not be able to keep within the limits (imposed by Allah), in
that case it is no sin for either of them if the woman ransom herself.”
• The word KHULA, in its original sense means “to draw” or “dig up” or “to
take off” such as taking off one’s clothes or garments. It is said that the spouses
are like clothes to each other and when they take Khula each takes off his or her
clothes, i.e., they get rid of each other.
• An agreement between the spouses for dissolving a connubial union in lieu of
compensation paid by the wife to her husband out of her property. Although
consideration for Khula is essential, the actual release of the dower or delivery
of property constituting the consideration is not a condition precedent for the
validity of the khula. Once the husband gives his consent, it results in an
irrevocable divorce. The husband has no power of cancelling the ‘khul’ on the
ground that the consideration has not been paid. The consideration can be
anything, usually it is mahr, the whole or part of it. But it may be any property
though not illusory.
 DIVORCE BY MUTUAL CONSENT
• MUBARAT
• In Mubarat, the outstanding feature is that both the parties desire
divorce. Thus, the proposal may emanate from either side. In Mubarat
both, the husband and the wife, are happy to get rid of each other.
Among the Sunnis when the parties to marriage enter into a Mubarat all
mutual rights and obligations come to an end.
• The Shia law is stringent though. It requires that both the parties must
bona fide find the marital relationship to be irksome and cumbersome.
Among the Sunnis no specific form is laid down, but the Shias insist on
a proper form. The Shias insist that the word mubarat should be
followed by the word talaaq, otherwise no divorce would result. They
also insist that the pronouncement must be in Arabic unless the parties
are incapable of pronouncing the Arabic words. Intention to dissolve the
marriage should be clearly expressed. Among both, Shias and Sunnis,
mubarat is irrevocable. Other requirements are the same as in khula and
the wife must undergo the period of iddat and in both the divorce is
essentially an act of the parties, and no intervention by the court is
required.
 DIVORCE BY WIFE
• Wife can be categorized under three categories:
(I) TALAAQ-I-TAFWEEZ
(II) LIAN
(iii) By Dissolution of Muslim Marriages Act 1939.
• Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The
Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other
person. He may delegate the power absolutely or conditionally, temporarily or permanently. A
permanent delegation of power is revocable but a temporary delegation of power is not. This
delegation must be made distinctly in favour of the person to whom the power is delegated, and the
purpose of delegation must be clearly stated. The power of talaaq may be delegated to his wife and
as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the hands
of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be
fairly common in India”.
• This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v.
Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay
certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the
house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s
house without paying the amount. The wife exercised the right and divorced herself. It was held that
it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be
made even in the post marriage agreements. Thus where under an agreement it is stipulated that in
the event of the husband failing to pay her maintenance or taking a second wife, the will have a right
of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable
and not against public policy. It should be noted that even in the event of contingency, whether or not
the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The
happening of the event of contingency does not result in automatic divorce.
 DIVORCE BY WIFE
• LIAN:
• If the husband levels false charges of unchastity or
adultery against his wife then this amounts to character
assassination and the wife has got the right to ask for
divorce on these grounds. Such a mode of divorce is called
Lian. However, it is only a voluntary and aggressive charge
of adultery made by the husband which, if false, would
entitle the wife to get the wife to get the decree of divorce
on the ground of Lian. Where a wife hurts the feelings of
her husband with her behaviour and the husband hits back
an allegation of infidelity against her, then what the
husband says in response to the bad behaviour of the wife,
cannot be used by the wife as a false charge of adultery and
no divorce is to be granted under Lian. This was held in the
case of Nurjahan v. Kazim Ali by the Calcutta High Court.
 DISSOLUTION OF MUSLIM MARRIAGES ACT 1939:
• Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding
the issue on 17th April 1936. It however became law on 17th March 1939 and thus
stood the Dissolution of Muslim Marriages Act 1939.
• Section 2 of the Act runs thereunder:
• A woman married under Muslim law shall be entitled to obtain a decree for
divorce for the dissolution of her marriage on any one or more of the following
grounds, namely:-
• That the whereabouts of the husband have not been known for a period of four
years: if the husband is missing for a period of four years the wife may file a
petition for the dissolution of her marriage. The husband is deemed to be missing
if the wife or any such person, who is expected to have knowledge of the husband,
is unable to locate the husband. Section 3 provides that where a wife files petition
for divorce under this ground, she is required to give the names and addresses of
all such persons who would have been the legal heirs of the husband upon his
death. The court issues notices to all such persons appear before it and to state if
they have any knowledge about the missing husband. If nobody knows then the
court passes a decree to this effect which becomes effective only after the expiry
of six months. If before the expiry, the husband reappears, the court shall set aside
the decree and the marriage is not dissolved.
 DIVORCE BY WIFE:
Dissolution of Muslim Marriages Act 1939
• That the husband has neglected or has failed to provide for her maintenance for a
period of two years: it is a legal obligation of every husband to maintain his wife, and if
he fails to do so, the wife may seek divorce on this ground. A husband may not maintain
his wife either because he neglects her or because he has no means to provide her
maintenance. In both the cases the result would be the same. The husband’s obligation
to maintain his wife is subject to wife’s own performance of matrimonial obligations.
Therefore, if the wife lives separately without any reasonable excuse, she is not entitled
to get a judicial divorce on the ground of husband’s failure to maintain her because her
own conduct disentitles her from maintenance under Muslim law.
• • That the husband has been sentenced to imprisonment for a period of seven years
or upwards: the wife’s right of judicial divorce on this ground begins from the date on
which the sentence becomes final. Therefore, the decree can be passed in her favour
only after the expiry of the date for appeal by the husband or after the appeal by the
husband has been dismissed by the final court.
• That the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years: the Act does define ‘marital obligations of the
husband’. There are several marital obligations of the husband under Muslim law. But
for the purpose of this clause husband’s failure to perform only those conjugal
obligations may be taken into account which are not included in any of the clauses of
Section 2 of this Act.
Dissolution of Muslim Marriages Act 1939
• That the husband has neglected or has failed to provide for her maintenance for a
period of two years: it is a legal obligation of every husband to maintain his wife, and if
he fails to do so, the wife may seek divorce on this ground. A husband may not maintain
his wife either because he neglects her or because he has no means to provide her
maintenance. In both the cases the result would be the same. The husband’s obligation
to maintain his wife is subject to wife’s own performance of matrimonial obligations.
Therefore, if the wife lives separately without any reasonable excuse, she is not entitled
to get a judicial divorce on the ground of husband’s failure to maintain her because her
own conduct disentitles her from maintenance under Muslim law.
• • That the husband has been sentenced to imprisonment for a period of seven years
or upwards: the wife’s right of judicial divorce on this ground begins from the date on
which the sentence becomes final. Therefore, the decree can be passed in her favour
only after the expiry of the date for appeal by the husband or after the appeal by the
husband has been dismissed by the final court.
• • That the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years: the Act does define ‘marital obligations of the
husband’. There are several marital obligations of the husband under Muslim law. But
for the purpose of this clause husband’s failure to perform only those conjugal
obligations may be taken into account which are not included in any of the clauses of
Section 2 of this Act.
THANKS