Talaq is the Urdu term for divorce. Talaq is considered as the absolute privilege of the husband how may pronounce it as his own pleasure impliedly or expressly. It means repudiation of marriage. Following are the various forms of Talaq under Muslim law –
Forms of Talaq
1. Talaq- ul- sunnat
This means Talaq as sanctioned by the sunnat or according to the traditions laid down by the prophet. These can be of two types-
(i) Talaq-ahsan
The word ‘ahsan’ is an Arabic word which means ‘best’ or as very proper. Thus, a Talaq pronounced in the ahsan from is the best kind of Talaq. The requirements of this form are –
- the husband must make a single pronouncement of divorce.
- This pronouncement must be made during a tuhr (period between menstruation).
- the husband must abstain from sexual intercourse for the period of iddat.
When the marriage is not consummated, a Talaq in the ahsan form may be pronounced, even if the wife is in her menstruation. Where the wife is beyond the age of menstruation, the requirement of a declaration during a tuhr is not applicable. Also, this requirement of declaration during tuhr applies to an oral divorce, and not to divorce in writing.
Read – Classification Of Dower Under Muslim Law
A pronouncement made in the ahsan form is revocable during iddat. Such revocation may be either in express words or implied. Cohabitation is an implied revocation. After the expiration of iddat, the divorce becomes irrevocable.
(ii) Talaq Hasan
Hasan in Arabic means good. The requirements of the Talaq are –
- There are three pronouncement of Talaq made during successive tuhrs.
- There must be abstinence from sexual intercourse until the third pronouncement.
2. Talaq-ul-biddat
Talaq-ul-biddat or Talaq-i-badai is one of the disapproved forms of Talaq. The essential feature of this Talaq is its irrevocability. It is of two kinds –
- Three pronouncements within one tuhr. These pronouncements may be made either in one sentence or in separate sentences. The triple repetition is not a necessary condition of Talaq-ul-biddat, and the intention to render Talaq irrevocable may be expressed even by a single declaration. Thus, if a man says ‘I have divorced you by a Talaq-ul-Bain (irrevocable) divorce, the Talaq is Talaq-ul-biddat or Talaq-i-badai, and it will take effect immediately.
- A Talaq-ul-biddat affected by a triple pronouncement is valid even if it is pronounced when the wife is in her menstruation. Shia law does not recognize the validity of this form of Talaq.
On 22 August 2017, the apex court declared in the case of Shayara Bano v. UOI that this form of Talaq is unconstitutional.
3. Ila –
Ila or vow of abstinence is another form of divorce. It is a species of constructive divorce, which is effected by abstinence from sexual intercourse for a period not less than four months pursuant to a vow. According to Shafei law, the fulfillment of such a vow does not per se operate as a divorce, it gives the wife the right to seek a judicial divorce.
Ila may be cancelled by the husband by resuming intercourse with his wife within the period to which it refers, provided he has not already completed four months of abstinence. This form of divorce is more or less obsolete now.
4. Zihar
It is form of inchoate divorce. If the husband compares his wife to any of his female relations within such prohibited degrees as renders marriage with such person as unlawful, the wife has a right to withdraw from him until he has performed penance. If the husband does not expiate, the wife has a right to apply for a judicial divorce.
Thus, a Zihar disentitles the husband who makes unlawful comparison, to sexual intercourse with the wife, the husband can retrace by doing penance, and if he does not do that, then the wife can seek divorce.
5. Talaq-e-tafwid (Delegated Divorce)
A husband has the power to delegate his own right of pronouncing divorce to some third person or to the wife herself. This power could be delegated either absolutely or conditionally, for a particular period or permanently. A temporary delegation of the power is irrevocable, but a permanent delegation may be revoked.
6. Khula
It is a divorce with the consent, at the instance of the wife. Khula literally means “to lay down”. In law it means laying down by a husband of his right and authority over his wife.[1] Khula has been defined as follows –
A divorce by khoola is divorce with the consent and at the instance of the wife, in which she gives or agrees to give consideration to the husband for her release from the marriage tie.
Read – Concept Of Iddat Under The Muslim Law
It is important to note that there was no khula in pre-Islamic legislation. It was for the first time introduced by Muslim law.
- There is an offer from the wife,
- The offer is accompanied by some consideration or compensation by the wife to the husband in lieu of her release from marital bond.
- The offer should be accepted by the husband.
7. Mubara’at
It is also a form of divorce where marriage is dissolved by agreement between the parties. This form of divorce is considered to be much more progressive and liberal. It takes place in the form of a bilateral agreement between the husband and wife without the intervention of the court.
8. Li’an (False Charge of Adultery)
Adultery is a very grave and harsh offence under Islamic law. It, therefore, takes a serious view of an imputation of unchastity against a married woman. If a Muslim husband charges his wife with cruelty and the charge is false, the wife has the right to seek divorce on that ground. She has to file a regular suit for dissolution of marriage. The marriage continues until the decree is passed.
Conclusion
Under Muslim law we can see that men can divorce their wives easily while women have to face a lot of obstacles i.e. financial or legal. Women’s right to divorce is very limited compared with that of men under Muslim law. However, these religious practices are often challenged by various human rights organizations and other organizations in order to promote Islam liberally.
[1] Monshee Buzal-ul-Raheem v. Lutteefut –oon-Nissa (1861) 8 MIA 379.
