“Which different modes of Talaq (divorce) does Muslim Law recognize?”
Explain in detail.
We will discuss the different Modes of Talaq (divorce) known under Muslim Law. Explain in detail. in detail
Modes of Talaq (divorce)
Talaq is an Arabic word and its literal meaning is “to release” or “to set free”. Under Muslim law, Talaq means repudiation of marriage by the husband. Talaq is peculiar because a Muslim husband has an unrestricted right to divorce his wife without giving any reason.
Here we will the topic What are the different modes of Talaq (divorce) known under the Muslim Law? Explain in detail. in detail
Modes of Talaq (divorce)
Kinds of Talaq
From the point of view of the mode of pronouncement and effect, the following kinds of Talaq exist, which we show below-
1.Talaq-ul-Sunnat ( Revocable Talaq)
2. Talaq-ul-Bidaat ( Irrevocable)
Here we will the topic What are the different modes of Talaq (divorce) known under the Muslim Law? Explain in detail. in detail
Modes of Talaq (divorce)
1.Talaq-ul-Sunnat ( Revocable Talaq)
Islamic scholars regard Talaq-ul-Sunnat as the approved form of Talaq. They call it Talaq-ul-Sunnat because it is based on the Prophet’s tradition (Sunna). Prophet always considered Talaq as evil. If at all this evil was to take place, the best formula was one in which there was the 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 a possibility of compromise and reconciliation between husband and wife. This mode of Talaq is recognised both by Sunnis as well as by the Shias.
Modes of Talaq (divorce)
Talaq-ul-Sunnat may again divide into two kinds.
Modes of Talaq (divorce)
(i) Talaq Asfian (Most Proper)
Modes of Talaq (divorce)
Talaq Ashan is the most proper form of repudiation of marriage. The reason is twofold- First, there is a possibility of revoking the pronouncement before expiry of the Iddat period. Secondly, one must utter the evil words of Talaq only once. Being evil, one should not repeat these words. In the Ahsan Talaq there is a single declaration during the period of purity followed by no revocation by the husband for three successive periods of purity. Could you provide more details about the specific formalities or the content of the form you need assistance with? This will help me better assist you!
Modes of Talaq (divorce)
(a) The husband has to make a single pronouncement of Talaq during the Tuhr of the wife. However, one may pronounce a Talaq against a woman who does not experience menstruation, either due to old age or pregnancy, at any time.
Modes of Talaq (divorce)
(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 the Iddat is, till the delivery of the child. During the period of Iddat there should be no revocation of Talaq by the husband.
Modes of Talaq (divorce)
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.
Modes of Talaq (divorce)
(ii) Talaq Hasan (Proper)
Modes of Talaq (divorce)
People also regard Talaq Hasan as the proper and approved form of Talaq. In this form too, individuals can revoke it. However, this approach is not ideal because one must pronounce the words of Talaq three times during consecutive Tuhrs. The required formalities under this form are as follows-
Modes of Talaq (divorce)
a) The husband has to make a single declaration of Talaq in a period of ‘Tuhr’.
b) In the next Tuhr, the husband makes another single pronouncement for the second time. It is significant to note that the husband may revoke the first and second pronouncements. If he does so, either expressly or by resuming conjugal relations, the words of Talaq become ineffective as if he made no Talaq at all.
c) But, if no revocation occurs after the first or second declaration, then the husband must make the third pronouncement in the third period of purity (Tuhr). As soon as he makes this third declaration, the Talaq becomes irrevocable, and the marriage dissolves, requiring the wife to observe the required Iddat.
Modes of Talaq (divorce)
2. Talaq-ul-Biddat (Irrevocable )
A peculiar feature of this Talaq is that the person pronouncing the words causes it to take effect immediately, and the parties cannot reconcile. The Prophet never approved a Talaq in which there was no opportunity for reconciliation. Therefore, the irrevocable Talaq in which there was no opportunity for reconciliation was not in practice during his life. According to Ameer Ali, the Omayad Kings introduced this mode of Talaq 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
The Shia Law does not recognize an irrevocable Talaq.
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”. The husband may declare his triple-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 irrevocably saying-“I divorce thee irrevocably” or “I divorce three in Bain”.
The Patna High Court has held, relying on Hedaya, that an irrevocable Talaq may be pronounced even during the menses period.
Sheikh Fazlur Vs. Mt. Aisha, (1929) 8 Pat. 690.
It is evident that in the irrevocable Talaq the emphasis is upon the husband’s intention of irrevocable Talaq than the words uttered by him.
He may use any formula which makes it clear that the husband intends to dissolve the marriage irrevocably.
In Marium Vs. Md. Shamsi Alam,
A.I.R. (1979) All. 257, the wife left her husband’s place and went to her parents’ house because she found that her husband neglected her health. When her husband went to take her back, she refused to go with him. The husband became agitated and in anger uttered Talaq three times in one breath. But later on, realizing his mistake, he revoked the Talaq within the period of Iddat. The Allahabad High Court ruled that although the husband uttered the word “Talaq” thrice, since he pronounced it in one breath, he should interpret it as one single pronouncement. The court held that the Talaq was in the Ahsan form, which was revocable. The husband expressly revoked the Talaq before the Iddat, so he cannot be said to have intended the divorce seriously.
Written Talaq
Under Shia law, the husband must pronounce the Talaq orally except when he 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. Any form of writing by the husband that indicates his intention to divorce the wife may serve as written Talaq. He may present a letter plea during the course of a suit or proceeding. It may also be in the form of an application to the Kazi.
Other modes of Talaq
A. Divorce on the basis of conduct of husband (Constructive Divorce)
In this mode of divorce, the husband doesn’t expressly repudiate the marriage, but his conduct is of such a nature that it leads to the conclusion that he intends to dissolve the marriage. Besides Talaq, a Muslim husband can repudiate his marriage by two other modes of constructive Divorce which are Ila and Zihar .
(I) ILA
In Ila the husband takes an oath not to have sexual intercourse with the 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 the prescribed period of four months, ila cancels and does not dissolve the marriage.
Modes of Talaq (divorce)
Shia Law
Under Ithna Asharia (Shia) school, Ila does not operate as divorce without the order of the court of law. According to this school, after the expiry of the fourth month, the judicial divorce simply entitles the wife. If she does not obtain the decree of court, the marriage does not dissolve.
Modes of Talaq (divorce)
(ii). Zihar
Zihar is also a constructive divorce. 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 an objectionable comparison, the husband does not cohabit with his wife for a period of four months. Upon the expiry of the fourth month, the Zihar is complete. But the marriage as such does dissolve. After completion of the fourth month the wife has the following rights-
Modes of Talaq (divorce)
(i) She may go to the court for a judicial divorce or,
(ii) She may go to the court for an order for restitution of conjugal rights.
Modes of Talaq (divorce)
Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. But cohabitation with a wife who compares herself to a mother or sister is sinful. Therefore, in such a circumstance although the wife cannot claim a judicial divorce, yet she can compel the husband to pay a penalty for this sinful conduct of comparing her with his mother or sister.
Modes of Talaq (divorce)
B. Divorce by Delegating the right to anyone or Delegated Divorce ( Talaq-i-Tafweez)-
Delegated divorce is the other kind of divorce. A Muslim husband has an unrestricted right to divorce his wife whenever he likes. He may exercise this right so absolutely that he can either divorce her himself or delegate his right to another person. In other words, instead of pronouncing the Talaq himself, he may give his right of divorce to anyone else, including his own wife. A person who acts as an agent of the husband under his authority can divorce, and this is called Talaq-i-Tafweez or delegated divorce. In the delegated divorce, the other person pronounces the Talaq, which is as effective as if the husband himself made it, and the marriage dissolves.
The husband may delegate his right of divorce to his own wife and authorize her to pronounce Talaq. The wife receives the authority under an agreement at the time of the marriage or any time after it. The husband may delegate the power of divorce to the wife either permanently or temporarily, i.e., only for a specified duration. According to Mulla, a temporary delegation of power is irrevocable, but the husband may revoke a permanent delegation.
The delegation (Tafweez) may be unconditional or subject to a certain condition or contingency. Where the delegation is conditional, one cannot exercise the authority of giving Talaq until that condition is fulfilled. But the conditions must be of reasonable nature and must not be against the principles of Islam.
C. Divorce By Mutual Consent
This is another mode of Talaq. Under Muslim law, a divorce may take place also by mutual consent of the husband and wife. There are two forms of divorce by mutual consent(i) Khula and (ii) Mubarat.
(i) Khula
Literal meaning of the word Khula is, ‘to take off the clothes’. In law, it means divorce by the wife with the consent of her husband on payment of something to him. Before Islam, the wife had no right to take any action for the dissolution of her marriage. But in Islam, she is permitted to ask her husband to release her (as he puts off his clothes) after taking some compensation.
Thus, Khula is a divorce by common consent but the wife has to make the payment of some consideration to the husband because she takes the initiative for dissolution of the marriage.
Essentials of a Valid Khula
(a) Competence of the Parties
The husband and wife must be of sound mind and have attained the age of puberty (fifteen years). A minor or insane husband or wife cannot lawfully affect Khula. The guardian of a minor husband may not validly affect Khula on his behalf.
(b) Free Consent
The offer and the acceptance of Khula must be made with the free consent of the parties. Under Hanafi law, a Khula under compulsion or in the state of intoxication is also valid. But, under all other schools including Shia law, without free consent of the parties, the Khula is not valid.
(c) Formalities
There is an offer by the wife to release her from the matrimonial tie. The offer is made to the husband. The offer for Khula must also be accepted by the husband. Until the offer is accepted, the divorce is not complete and it may be revoked by the wife. But once the offer has been accepted, the divorce is complete and becomes irrevocable. Offer and acceptance may either be oral or in writing. The offer and acceptance must be made at one sitting i.e. at one place of meeting.
Under Sunni law the presence of witnesses is not necessary. But under Shia law , the offer and acceptance of Khula must be made in the presence of two competent witnesses. Further, under Shia law, the Khula is revocable by wife during Iddat.
(d) Consideration
For her release, the wife has to pay something to the husband as compensation. Generally the wife relinquishes her claim of dower as consideration for the contract of Khula. She may relinquish her full dower or only a part of it. Where the dower has already been paid to the wife, the wife may give some money or property to the husband.
(ii) Mubarat
Mubarat is also a divorce by mutual consent of the husband and wife. In Khula the wife alone is desirous of separation and makes the offer, whereas in Mubarat both the parties are equally willing to dissolve the marriage. Therefore, in Mubarat, either the husband or the wife may initiate the offer for separation, which the other accepts. The essential feature of a divorce by Mubarat is the willingness of both parties to get rid of each other; therefore, it is not very relevant who takes the initiative.
Another significant point in the Mubarat form of divorce is that both parties equally desire the dissolution of marriage, so neither party is legally required to compensate the other by giving some consideration.
Here we will the topic What are the different modes of Talaq (divorce) known under the Muslim Law? Explain in detail. in detail
D. Divorce by false Charge of Adultery (Lian)
If a husband charges his wife with adultery and the charge is false, she is entitled to sue for and obtain a divorce.
She must file a regular suit for dissolution of her marriage as a mere application to the court is not the proper procedure.
In Zafar Husan Vs. Ummat-ur-Rahman, (1919)
All ., the Allahabad High Court recognised the doctrine of lian In this case, the plaintiff’s wife claimed that her husband had publicly accused her of having illicit intercourse with her brother and imputed fornication to her. Critics contended that the law of lian had no relevance in Anglo-Mohammedan Law and that they should consider it obsolete. However, the court rejected this argument. The court stated that it replaced the role of a Qazi under Muslim Law. It affirmed that a Muslim wife has the right to file for divorce against her husband and can obtain a decree if he falsely accuses her of adultery.
Here we will the topic What are the different modes of Talaq (divorce) known under the Muslim Law? Explain in detail. in detail
Features of Lian
a. Husband (adult and sane) charges his wife (adult and sane) of adultery or, denies the paternity of her child.
b. Such a charge is false. If the wife proves such charge to be true, the court would not grant her a decree for the dissolution of marriage.
c. Such false charge does not ipso facto dissolve the marriage, it only gives an opportunity to the wife to move the court to dissolve the marriage. The marriage will continue until the court pass the decree.
d. She must file a regular suit for the dissolution of marriage. Mere ‘application’ is not enough. No such suit will lie if the marriage was irregular.
e. The judicial separation due to lian is irrevocable.
f. Lian is applicable only to sahih marriages not to fasid ones.
Here we will the topic What are the different modes of Talaq (divorce) known under the Muslim Law? Explain in detail. in detail
Retraction of Charge
The Muslim law permits the man to retract the charge. The retraction must be (i) Bona fide and not a mere device for defeating suit for dissolution, (ii) Unconditional, and (iii) Made at or before the commencement of hearing and not after the close of evidence.
Three conditions are necessary for a valid retraction
(a) The husband must admit that he has made the charge of adultery against the wife;
(b) He must admit that the charge was false, and
(c). He must make the retraction before the end of trial.
We will cover the topic What are the different modes of Talaq (divorce) known under the Muslim Law? and explain it in detail.
E . Judicial Divorce or Termination of Marriage Through Faskh (Cancellation of Marriage)
Under the Muslim Law a lady can approach the Qazi for dissolving her marriage. Quran says that this is the duty of the husband to give proper treatment to his wife. The wife is also under duty to obey all lawful orders of her husband. If the husband and wife both come to the conclusion that they cannot live as husband and wife, they can refer the matter to Qazi who after careful examination, terminates the marriage.
Faskh means the cancellation, abolishment, rescission, revocation, abrogation annulment. Before the passing of the Dissolution of Muslim Marriage Act, 1939, there was no legislation under which a Muslim lady could ask for the dissolution of her marriage. Muslim ladies could only apply for the dissolution of their marriages under the doctrine of Faskh. According to Tyabji, the following were the main grounds for dissolving the marriage at the instance of the wife –
(i) That, the marriage is irregular,
(ii) That, a person having an option to avoid a marriage has exercised his option;
(iii) That the parties contracted the marriage within prohibited degrees or fosterage; or
(iv) That the non-muslim parties who contracted the marriage have adopted Islam.
Here we will the topic What are the different modes of Talaq (divorce) known under the Muslim Law? Explain in detail. in detail
