Introduction:
“Muslim marriage is a contract for the purpose of legalizing sexual intercourse and the procreation of children” is a quote by Ronal Wilson. When there is a contract, the option to end the contract also arises by the option of parties. Divorce under Muslim law serves that option. From the beginning, Islam recognizes judicial and extrajudicial divorce. Divorce under Muslim law can be done in various forms and can be classified as follows depending on the parties to the divorce.
- Divorce by husband
- Divorce by wife
- Divorce did mutually
Divorce can be done by the husband in the following three ways.
- Talaq(repudiation)
- Ila (vow of Continence)
- Zihar (Injurious assimilation)
Various modes of talaq or divorce under muslim law are discussed bellow –
Talaq:
The word “talaq” is an Arabic word that means “undoing of or release from a knot”. There is a chapter in the Quran named At-Talaq which is ordered as the 65th chapter in the Holy Quran. The chapter has verses that deal with the provision of Talaq. Under Muslim law, a mentally sound and major husband can divorce his wife without the intervention of the court and without assigning a reason for his actions. This is unique nature of Talaq under Muslim law. As it gives arbitrary power to the husband, it is regulated by certain safeguards in practice which will be discussed.
Imam Al-Ghazali remarks that divorce under muslim law is permissible only when the object is not to trouble the wife but only in the case where there are extreme necessities and where the grounds are just. Pronouncing Talaq means declaring one’s intention to divorce his wife. Talaq must be pronounced by the husband under free consent except under Hanafi law.
Under Hanafi law, talaq is valid if it is pronounced under coercion, compulsion, undue influence, fraud, and voluntary toxication. Talaq pronounced under involuntary toxic is void even under Hanafi law. One should pronounce the talaq during the period when the wife is in the pure stage i.e., “tuhr” period. In other words. One should pronounce talaq during the interval between two menstruations.
If the consummation has not occurred, he may pronounce talaq during the period in which the wife is in menses. The presence of the wife is not required, when the husband is pronouncing talaq. But the declaration must be clear that the intention to dissolve the marriage by the husband should be clear. During declaration, the name of the wife must be referred to. In Ithna Ashari law, the talaq must be pronounced before the presence of two male Muslim witnesses whereas, in, Sunni law, the presence of a witness is not needed.
In Sunni law, talaq may be in oral or in written form whereas, in Ithna Ashari law, Talaq must be pronounced orally in Arabic tongue before the witnesses. Talaq can be further classified as
(a) Talaq al-Sunnah:
This conforms with the dictates of the prophet. These types of talaq are in revocable forms. A revocable form of pronouncement of talaq gives a “locus poenitentiae” to man. It is also further divided as
(b) Talaq e Ahsan:
Talaq-e-Ahsan is the most proper form of talaq as it provides the husband with the adequate opportunity to reconsider his divorce if he has given the divorce in hastiness. In talaq-e-Ahsan, Talaq is pronounced during the tuhr period and it is pronounced thrice i.e., during three consecutive tuhr periods. the condition of tuhr is not necessary if the parties have been away from each other for a long time or where the wife is old so that she is beyond the age of menstruation. After the lapse of the period of Iddah after the pronouncement of the third talaq, talaq becomes irrevocable.
Talaq e Ahsan gets completed after the period of Iddah only. It is important to note that talaq pronounced in the Ahsan form is revocable during the period of Iddah. Iddah is the period of three menstrual courses after the declaration of the third talaq or if until delivery if the woman is pregnant. The revocation may be done either by words or by conduct. Resumption of conjugal intercourse is a clear case of revocation done by conduct. For instance, if a person pronounces a single revocable talaq and then says that he has retained her or cohabited with her is the form of revocation. As the husband has ample opportunity to reconsider his divorce in this form, this is considered to be the most proper method.
(c) Talaq e Hasan:
Talaq-e-Hasan is also considered to be the proper method though it is not proper as the previous method. It differs from the previous method that the third talaq pronounced during the third tuhr completes the divorce between the husband and wife.
Illustratively, the first pronouncement of talaq is made during a tuhr period, the followingly second pronouncement is made during the next “tuhr” period and final or third pronouncement is made during the third “tuhr”.
Talaq Hasan completes if any form of revocation has not been done during the in-between period. There should be abstinence from sexual intercourse during the period in between. Talaq pronounced in Hasan form could be revoked only until the pronouncement of the third talaq and it becomes irrevocable after the pronouncement of the third talaq. Here, it is not necessary to wait for the whole period of Iddah after the pronouncement of the third talaq to make talaq complete. This is the reason which makes it not the most proper form as the above form though it is considered as a proper method as there is time to reconsider his decision until the pronouncement of the third talaq.
(d) Talaq–al Biddat:
Talaq–al Biddat includes irrevocable forms of divorce. It is not considered as a proper form of divorce. It came into practice during the second century of Islam when Omayyad monarchs found that the check imposed by the Prophet Muhammad on the facility of repudiation is interfered with by the indulgence of their caprice. And they endeavored to find a loophole from the strict nature of law. Fyzee denounces such type of talaq as “absurd and unjust”. He also suggests proper remedy should wipe away from them by a statue. These are of two disapproved forms:
The triple talaq:
This is also called talaq ul Bain where three pronouncements of talaq are made in a single tuhr. For example, saying “I divorce thee thrice” or saying “I divorce thee, I divorce thee, I divorce thee” I.e., “Talaq, Talaq, Talaq”. Such a talaq is unlawful in Shia law i.e., this type of talaq is not permissible under Shia law. Maliki school of Sunni jurisprudence too denies the validity of Triple talaq. Hanafi and Shafi consider this talaq as lawful and effective though in its commission man incur a sin according to Shafi and Hanafi jurisprudence.
Nikkah Halala:
Nikkah Halala is important to note in addition to Talaq-e-Biddat. This is a stringent condition laid down in order to restrict the husband to the form of Talaq-e-Biddat as this talaq is pronounced in hastiness by the husband. The condition is that if the husband wants to remarry the wife to whom the talaq is pronounced, He cannot remarry her unless the wife is married to another person and consummation must occur between them and thereafter the dissolution of marriage occurs. Such a type of marriage is called Nikkah Halala.
This is also called as tahleel marriage. Then after dissolution, the first husband could remarry her. If the marriage is done without this condition being satisfied it would be an irregular marriage.
Talaq–E-Tafweez:
It is a delegated divorce. This form of divorce differ from all the above forms of divorce as this form of divorce is at the instance of a wife. Here the power of Talaq is delegated to the wife by the husband under an agreement between them. The Muslim wife at the time of the marriage can reserve a right for herself to dissolve the marriage under certain contingencies in the marriage deed. Once the power is given by the husband to the wife, it cannot be revoked. Tafwid is of three kinds:
Ikhtiyar – Giving wife the authority to talaq herself
Amr bi yad – Leaving the matter in the wife’s own hand
Mashia – Giving her option to do what she likes
All these kinds when discussed, get wind up in one, i.e., leaving in her hand to do what she likes. The stipulations must be valid and not opposed to public policy. The mere happening of the condition is not sufficient but there shall be a formal pronouncement of divorce. This formal pronouncement of divorce should be made either to the husband or in the presence of witnesses. The wife must clearly explain the events entitling her to exercise her option and also that she has actually exercised her option.
Conclusion:
The nature of talaq, its types, and its revoking nature are discussed. There are also other forms of divorce under Muslim law. Ila and zihar are other forms of divorce by Husband. Khula is another form of divorce by the wife. Mubaraa is another form of divorce that is done mutually. Lian and Faskh are other forms of dissolution of marriage which are done by the judicial process.
“And when you divorce women and they have nearly fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm to transgress against them. And whoever does that has certainly wronged himself.” – Al Quran Chapter 2 verse 231
References
Al Quran
Sahih Muslim
“Family Law in India” by GCV Subba Rao, Published by NARENDRA GOGIA &COMPANY Publications.
“Understanding Islamic Law in India: An Assessment of the Contribution of Justice VR Krishna Iyer: A Tribute” by Furqan Ahmad Journal of Indian Law institute Published by Indian Law Institute.
“Divorce Under Islamic Law” by Mir Mehrajuddin, Cochin university of Law review published by School of Legal studies, Cochin University of Science and Technology.
“Dissolution of Marriage Under Islamic law” by Lawal Mohammed Bani and Hamza A Pate in Journal of Law Policy and Globalization.
Amicus-Salman-Khurshi-WS.pdf
Cases referred:
Shayara Bano v. Union of India and others, 22nd August 2017.
This article has been written by Arshath Iqram S, LLB student at Government Law College Coimbatore.
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