What is Talaq in Muslim Law: Notes

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Talaq in Muslim Law

  • What is Talaq?
  • Who can pronounce Talaq?
  • Identifying differences between shia and sunni, explain the different modes/types of Talaq.
  • What is Talaq e tafweez?
  • What is the difference between Talaq ul sunnat and Talaq ul biddat. 
  • Can a Muslim wife give Talaq to her husband?
  • If yes, under what circumstances?
  • What are the grounds on which a Muslim woman can demand Talaq? 
  • State the consequences that arise from Talaq under Muslim law.

The word Talaq originally meant “repudiation” or “rejection”. In Muslim law, it means release from a marriage tie, immediately or eventually. In a restricted sense, it means separation affected by the use of certain appropriate words by the husband and in a wide sense, it means all separations for causes originating from the husband. It is also the generic name for all kinds of divorce but it is particularly applied to the repudiation by or on behalf of the husband. 

In Moonshee Buzloor Rahim vs Lateefutoon Nissa, it was said that Talaq is a mere arbitrary act of a Muslim husband, by which he may repudiate his wife at his own pleasure with or without cause.

Who can pronounce Talaq?

As per Islamic law, only the husband has a right to pronounce Talaq. Under Talaq-e-tafweez, a husband may delegate the authority to the wife to pronounce talk on his behalf. The husband must posses the following qualifications to be able to pronounce a valid Talaq –

Shia – He must be of sound mind and attained the age of puberty. It must be pronounced orally in the presence of two witnesses unless he is unable to speak. Further, Talaq must not be pronounced under duress or compulsion otherwise Talaq is void. It must be spoken in Arabic terms and strictly in accordance to sunnat.

Sunni – Only two requirements – Sound mind, attained majority. A Talaq pronounced under compulsion or intoxication is effective.

It is not necessary that Talaq must be pronounced in the presence of the wife. In Fulchand vs Navab Ali Chaudhary 1909, it was laid that Talaq should be deemed to have come into effect on the date on which the wife came to know of it.

The intention is not necessary for a Talaq to take effect. If unambiguous words denoting irrevocable Talaq are pronounced even by mistake or in anger, it is a valid Talaq.

Talaq can be effected orally or in writing (Talaqnama). If the words are expressed and well understood as implying divorce (e.g. “I have divorced thee”), no proof of the intention is required. If the words are ambiguous (e.g. “Thou art my cousin, the daughter of my uncle, if you goest”), then the intention of the user must be proved.

After the passing of the Muslim Marriage Dissolution Act 1949, a Muslim wife can also get a divorce on certain grounds. (Explained below)

The following diagram shows various types of divorces –  (Note that technically, Talaq is not the same as divorce, but in the exam when these morons ask about types of Talaq, they actually mean types of divorce!)

Type of TalaqShiaSunni
By Husband
Talaq ul sunnat – It is a Talaq which is effected in accordance with the traditions of Prophet. It is further divided in two types – Ahasan and hasan.
Ahasan – It is the most approved and considered to be the best kind of Talaq. The word ahasan means best or very proper. To be of Ahasan form, it must satisfy the following conditions –
the husband must pronounce the formula of divorce in a single sentence.the pronouncement of divorce must in done when the wife is in state of tuhr (purity), which means when she is free from her menses.husband must abstain from intercourse for the period of iddat.If the marriage has not been consummated, if the spouses are away from each other, or the wife is beyond the age of mensuration, Talaq may even be pronounced while the wife is in menses.
Pronouncement in this form is revocable during the period of iddat. Such revocation may be either express or implied. It becomes irrevocable at the expiry of iddat.
Written Talaq is not acceptable unless the husband is unable to speak.Two male witnesses are required.Intention to divorce is required on the part of husband.Written Talaq is acceptable.No witnesses are required.Talaq pronounced even by mistake is binding. 
Hasan – Hasan in arabic means “good” and so this form of Talaq is considered to be a good form of Talaq but not as good as Ahasan. To be in this form, it must satisfy the following conditions –
there must be three successive pronouncements of the formula of divorce.in the case of a menstruating wife, the three pronouncements must be made in three consecutive tuhrs.in case of a non-menstruating wife, the three pronouncements must be made during the successive intervals of 30 days.no sexual intercourse must take place during these three periods of tuhr.It can be revoked any time before the third pronouncement. It becomes irrevocable on the third pronouncement.
Talaq ul biddat – It is a disapproved and sinful form of Talaq. It was introduced by Ommeyyads in order to escape the strictness of law. To be of this form, it must satisfy the following conditions –
three pronouncements may be made during a single tuhr either in one sentence (e.g. “I divorce thee thrice.” ) or in three sentences (e.g. I divorce thee, I divorce thee, I divorce thee).a single pronouncement made during a tuhr clearly indicating an intention to dissolve marriage irrevocably (e.g. “I divorce thee irrevocably”).It becomes irrevocable immediately when it is pronounced irrespective of iddat. Thus, once pronounced, it cannot be revoked. One a definite complete separation has taken place, they cannot remarry without the formality of the woman marrying another man and being divorced from him.

In Saiyyad Rashid Ahmad vs Anisa Khatoon 1932, one Ghayas Uddin pronounced triple Talaq in the presence of witnesses though in the absence of the wife. Four days later a Talaqnama was executed which stated that three divorces were given. However, husband and wife still lived together and had children. While the husband treated her like a wife, it was held that since there was no proof of remarriage, the relationship was illicit and the children were illegitimate.

It has been said that this type of Talaq is theologically improper. In Fazlur Rahman vs Aisha 1929, it was held that Quran verses have been interpreted differently by different schools. Thus, it is legally valid for Sunnis but not for Shia.
Shias and Malikis do not recognize this form.

Shia law does not recognize any form of irrevocable Talaq.
Recognized but considered sinful.
Ila – (Vow of continence) – Where the husband is of sound mind and of the age of majority, swears by God that he will not have sexual intercourse with his wife and leaves the wife to observe iddat, he is said to make ila. If the husband after having pronounced ila abstains from having sexual intercourse with wife for four months, the marriage is dissolved with the same result as if there had been an irrevocable divorce pronounced by the husband. This requires following conditions –
Husband must be of sound mind and above the age of majority.must swear by God or must take a vow.vow must be that he will not have sexual intercourse with his wife.must abstain from sexual intercourse with his wife for four months or more after taking the vow.It can be canceled by – resuming sexual intercourse within the period of four months or by a verbal retraction.
It is not in practice in India.
Zihar – Injurious Assimilation – If a husband compares the wife with his mother or any other female relative within prohibited degree, the wife has a right to refuse herself to him until he has perfomed a penance such as freeing a slave or fasting for a month. In default of expiation by penance, the wife has the right to apply for judicial divorce. Ingredients –
husband must be sane and adulthusband compares wife to his mother or any other female relative within prohibited degrees.then the wife has a right – a) to refuse to have sexual intercourse with him till he has expiated himself by penance, b) to apply in court for an order directing him for a penance or to decree her a regular divorce.Legal Effects –  Zihar by itself does not terminate the marriage nor does it cause the wife to lose her right to maintenance even in case of default of penance. It causes the following –
sexual intercourse becomes unlawfulhusband is liable for penancewife can claim judicial separation if the husband persists in wrong doing.The comparison must be done intentionally  and with disrespect. If the husband makes a comparison to show respect to his wife, an expiation is not necessary.
This form has become obsolete.
Comparison must have been done in presence of two witness.
Muta marriage may be dissolved by Zihar.
No such requirement.
By Wife
Talaq e tafweez – A husband may delegate his power to give Talaq to any third party or even to his wife. This delegation is called tafweez. An agreement made either before or after the marriage providing that the wife is at liberty to divorce herself from her husband under certain specified conditions (e.g. husband taking a second wife), is valid, provided that such power is not absolute and unconditional and that the conditions are reasonable and are not opposed to public policy.

In Mohd Khan vs Mst Shahmali AIR 1972, there was a pre-nuptial agreement in which the defendant agreed to live in plaintiff’s parental house after marriage and if he left the house, he would pay a certain sum to the plaintiff, the default of which the condition would act as divorce. It was held that the condition was not unconscionable or opposed to public policy.

Note that a wife does not divorce her husband but gets herself divorced from the husband.
Ameer Ali gives three kinds of tafweez – (This is given in Aqil Ahmed’s book. I have no idea what is the difference between the three).
Ikhtiar – giving her authority to Talaq herself.
Amr-bayed – leaving the matter in her own hands.
Mashiat – giving her the option to do what she likes.

This does not deprive the husband from his right to give Talaq.
Talaq e taliq – It means contingent divorce. Under the Hanafi law, pronouncement of divorce may take effect immediately or at some future time or event. 
By Agreement
Khula – Divorce at the request of wife – A wife has a right to buy her release from marriage from her husband. It must satisfy the following conditions –
there must be an offer from the wife.the offer must be accepted with consideration (evaz) for the release.the offer must be accepted by the husband.It becomes effective as well as irrevocable (Talaq ul bain) as soon as it is accepted by the husband and the wife is bound to observe iddat.

As a consideration for release by the husband, everything that can be given in dower can be given. If the wife fails to give the consideration that was agreed upon at the time of Khula, divorce does not become invalid but the husband has the right to claim the consideration.

In Moonshee Buzloor Rahim vs Lateefutoon Nissa, Khula was defined as a divorce by consent in which the wife gives or agrees to give a consideration to the husband for her release from the marriage tie. Khula is thus the right of divorce purchased by the wife from her husband.
Husband must be adult, sane, free agent (mukhtar), and must have intention to divorce her.

Husband has no power of revocation but wife can reclaim the consideration during iddat. In this case, the husband can revoke Khula.
Only two conditions – Husband must be adult and sane.

It is irrevocable and partners cannot resume sexual intercourse until a fresh marriage is arranged.
Mubarat – Divorce by mutual agreement – It is a form of dissolution of marriage contract, where husband and wife both are averse to the marriage and want to separate. It requires following conditions –
Either of husband or wife can make the offer.The other one must accept it.As soon as it is accepted, it become irrevocable and iddat is necessary. Since it is a mutual agreement, there is no question of consideration.
By Judicial Decree
Lian – False charge of adultery – When the husband charges the wife with adultery and the charge is false, the wife is entitled to sue for and obtain divorce.  In Zafar Hussain vs Ummat ur Rahman 1919, the Allahabad HC accepted the doctrine of Lian. The following conditions must be satisfied –
Husband, who is adult and sane, charges his wife with adultery or denies the paternity of her child.Such charge is false.The marriage is a Sahih marriage.Features of Lian –
Such false charge does not dissolve the marriage automatically but only gives a right to the wife to sue for divorce. The marriage continues till the decree is passed.Wife must file a regular suit and just an application will not suffice.Judicial separation due to Lian is irrevocable.Lian is applicable only to Sahih marriage and not to Fasid ones.Retraction – A husband may retract the charge. However, the retraction must be bona fide and unconditional. It must be made before the closing of evidence.
Fask – Cancellation – Muslim law allows a lady to approach a qazi for dissolving the marriage under the following conditions –
if the marriage is irregular.if the person having an option to avoid a marriage has exercised his options.if the marriage was within prohibited degrees or fosterage.if the marriage has been contracted by non-Muslims and the parties have adopted Islam.Before the enactment of Muslim Marriage Dissolution act, this was the only way for a muslim woman to repudiate a marriage.
Judicial Divorce – Section 2 of Muslim Marriage Dissolution Act 1939 gives the following grounds to wife belonging to Shia as well as Sunni sects, upon which she can ask for divorce –
Absence of husband – 4 yrs. Decree passed on this ground will take affect only after 6 months of passing and if the husband shows up during the 6 months he can request the court to set the decree aside.Failure to maintain – for 2 yrs. Cause is immaterial. Poverty, incapacity is no excuse. There is no agreement among HCs regarding the conduct of wife. In Fazal Mahmood vs Ummatur Rahman AIR 1949Peshawar HC held that if a wife is not faithful or obedient, the husband is under no obligation to maintain her and her suit for divorce was dismissed. However, in Mst Nur Bibi vs Pir Bux AIR 1950, Sind HC held that a wife is entitled to divorce if the husband has failed to maintain her for two years preceding the suit even though she may not be entitled to maintenance owing to her bad conduct.Imprisonment of husband – for 7 yrs or more.Failure to perform marital obligations – for 3 yrsImpotency of husband – If the husband was impotent at the time of marriage and continues to be so.Insanity, leprosy, or venereal disease – For insanity, 2 yrs are required. For disease, no time period is required.Repudiation of marriage – If the wife was married before she was 15, she can repudiate the marriage before she turns 18.Cruelty of husband – cruelty involves –  habitual assault, associates with women of bad repute, attempts to force her to lead immoral life, disposes off her property, obstructs her practice of religion, does not treat all his wives equally.Grounds allowed by muslim law – This covers all the grounds such as Ila, Zihar, Khula, and Mubarat, which are provided by muslim law.
Section 4 of this act removes apostasy as a ground for granting divorce automatically. However, if a woman reconverts back to her original faith, the marriage will stand dissolved.

Can a Muslim wife give Talaq to her husband? If yes, under what circumstances? What are the grounds on which a Muslim woman can demand Talaq?

As per the definition of Talaq propounded in Moonshee Buzloor Rahim vs Lateefutoon Nissa, Talaq is a mere arbitrary act of a muslim husband, by which he may repudiate his wife at his own pleasure with or without cause. Thus, a muslim wife does not have any right to give Talaq to her husband. However, there are ways through which a muslim wife can repudiate her marriage and get a divorce from her husband. These are as follows –

1. Talaq e tafweez

2. Khula

3. Zihar

4. Lian

5. Fask

6. Dissolution of muslim marriage act 1939

Consequences arising from Talaq

  1. Marriage – Parties are entitled to contract another marriage. If the marriage was consummated the wife has to wait until the period of iddat is over, otherwise, she may remarry immediately. If the marriage was consummated and if the husband had four wives at the time of divorce, he can take another wife after the period of iddat.
  2. Dower – Dower becomes payable immediately if the marriage was consummated, otherwise, the wife is entitled to half of the amount specified in dower. If no amount is specified, she is entitled to 3 articles of dress. Where the marriage is dissolved due to apostasy of the wife, she is entitled to whole of the dower if the marriage has been consummated.
  3. Inheritance – Mutual rights of inheritance cease after the divorce becomes irrevocable.
  4. Cohabitation – Cohabitation becomes unlawful after the divorce has become irrevocable and children from such intercourse are illegitimate and cannot be legitimated by acknowledgment as held in In Saiyyad Rashid Ahmad vs Anisa Khatoon 1932.
  5. Remarriage – Remarriage between the divorced couple is not possible until
    1. the wife observes iddat
    2. after iddat she lawfully marries another man
    3. this intervening marriage is consummated
    4. the new husband pronounces divorce or dies
    5. the wife again observes iddat A marriage done without the fulfillment of the above is irregular, not void. But mere cohabitation after an irrevocable divorce is void.
  6. Maintenance – The wife becomes entitled to maintenance during the period of iddat but not during the iddat of death.

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