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We encourage you to take steps to obtain the most up-Io-date information and to confirm the accuracy and reliability of any information on this website in general and this document in particular by directly communicating with us. Q. What is Talaq? Who can pronounce Talaq? Identifying differences between shia and sunni, explain the different modes/types of Talag. 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 Talag 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 effected 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. itis also generic name forall kinds of divorce but itis particularly applied to the repudiation by or on behalf of husband. In Moonshee Buzloor Rahim vs Lateefutoon Nissa, itwas said that Talag isa mere arbitrary act of a muslim husband, by which he may repudiate his wife athis own pleasure with or without cause, Who can pronounce Talaq? ‘As per Islamic law, only the husband has a right o pronounce Talaq. Under Talag-c-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 pubery It must be pronounced orally in the presence of two witnesses unless he is unable to speak. Further, Talag must not be pronounced under duress or compulsion otvenwise Talaq is void. Itmust be ‘spoken in Arabic terms and stricly in accordance to sunnat ‘Sunni - Only two requirements - Sound mind, attained majority. A Talag pronounced under compulsion or intoxication is effective, Itis not necessary that Talaq must be pronounced in the presence of wife. In Fulchand vs Navab Ali Chaudhary 1908, itwas laid that Talaq should be deemed to have come into effect on the date on which the wife came to know of Intention is not necessary for a Talag to take effect. f unambiguous words denoting irrevocable Talag are pronounced even by mistake or in anger, itis a valid Talaq, Talag can be effected orally orin writing (Talaqnama), the words are express and well understood as implying divorce (e.g. “Ihave divorced thee"), no proof ofthe intention is required. the words are ambiguous (e.g. "Thou art my cousin, the daughter of my uncle, if you goest’), then intention of the user mustbe proved, ‘After the passing of 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 same as divorce, butin the exam when these morons ask about lypes of Talaq, they actually mean types of divorce!) ep dvanumart.comalag ht 6ar8n016 anumantcom/Talag hit Divorce By By Mutual Husband By Wife Consent IBy Juctcial Decree under Muslim [Dissolution of marriage Act 1939 Talaq Talage Ehula| Tafweez Lian da [Mubarat Fask Zihar Talaq Ul Talaqul ‘Sunnat Biddat (Ahasan}+{Hasan) [Written] + Oral Type of Talaq Shia ‘Sunni By Husband ‘Talaq ul sunnat- itis a Talaq which is effected in accordance with the traditions of Prophet kis further divided in two types - Anasan and hasan, [Ahasan- Its the most approved and considered io be the best kind of Talaa, The > Wien Talaqis, word ahasan means best or very proper. To be of Ahasan form, it must satsty the notacceptable || + Wien following conditions - unless the Talagis husband is acceplable. 4 the husband must pronounce the formula af divorce in a single sentence. unable © + No 2 the pronouncement of divorce mustin done when the wie isin state of tuhr speak witnesses (purity), which means when she is free from her menses. + Two male are {husband must abstain from intarcourse forthe period of dat. witnesses are required required + Talag Ifthe marriage has not been consummated, ifthe spouses are away from each other, | «Intention to pronounced lor te wie is beyond the age of mensuration, Talag may even be pronounced wile divorce is oven by the wife is in menses. required on the mistake is Pronouncement inthis form is revocable during the period of iddat. Such peter binding. revocation may be elther express or implied. becomes irrevocable at the expiry fusband of iddat, [Hasan- Hasan in arabic means "good" and so this form of Talaqis considered to be {a good form of Talag but not as good as Ahasan, To be in this form, it must satisfy the following conditions - 1..there must be three successive pronouncements of the formula of divorce. 2.in case af a menstruating wife, the three pronouncements must be made in three consecutive tubs, 3. in case of a non-menstuating wife, the three pronouncements must be made ‘during the successive intervals of 30 days. 4. no sexual intercourse must take place during these three periods of thr. It can be revoked any time before the third pronouncement. It becomes, Irrevocable on the third pronouncement. Talaq ul biddat - iis a disapproved and sinful form of Talag. twas introduced by |Ommeyyads in order to escape the striciiess of law. To be of tis form, it must satisfy the following conditions - 1..three pronouncements may be made during a single tuhr eitherin one sentence (e.g. I divorce thee thrice." ) orn three sentences (e.g. I divorce thee, divorce thee, I divorce thee). ep dvanumart.comalag htarwr016 hanumantcom/Talag hit 2. single pronouncement made during a tuhr clearly indicating an intention to dissolve marriage irrevocably (e.g. divorce thee irrevocably’) It becomes irrevocable immediately when itis 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 te woman marrying lanother man and being divorced from him. In Salyyad Rashid Ahmad vs Anisa Khatoon 1932, one Ghayas Uddin pronounced triple Talag in the presence of witnesses though in the absence af the wife. Four days later a Talagnama was executed which stated that three divorces were given. However, husband and wife sil lived together and had children. While the husband treated her ike a wife, itwas held that since there was no proof of remarriage, the relationship was ilcit and the children were illegitimate. Itnas been said that this type of Talaq is theologically improper. In Fazlur Rahman vs ‘Aisha 1929, itwas held that Quran verses have been interpreted differently by different schools. Thus, itis 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 Talag 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 Ifthe husband after having pronounced ila abstains from having sexual intercourse with wife forfour months, the ‘marriage is dissolved with the same result as ifthere had been an irevocable divorce: pronounced by the husband, This requires following conditions - 1. Husband must be of sound mind and above the age of majority. 2. must swear by God or must take a vow. 3. vow must be that he will not have sexual intercourse with his wife. 4, must abstain from sexual intercourse with his wife for four months or more after taking the vow. Itcan be canceled by - resuming sexual intercourse within the period of four months lor by a verbal retraction, Its not in practice in India. Zihar - injurious Assimilation - if a husband compares the wife with his mother or lany 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 - 1. husband must be sane and adult 2. husband compares wife to his mother or any other female relative within prohibited degrees. 3. then the wife has aright -a) to refuse to have sexual intercourse with him tll he has explated himself by penance, b) to apply in cour for an otder directing him fora penance or to decree her a regular divorce, Legal Effects - Zinarby itsolf does not terminate the marriage nor does it cause tho Wife to lose her right to maintenance even in case of default of penance. Itcauses the following - 1, sexual intercourse becomes unlawful 2. husband is liable for penance '3-wife can claim judicial separation ifthe husband persists in wrong doing, ‘The comparison must be done intentionally and with disrespect. the husband makes a comparison to show respect to his wife, an expiation is not necessary. This form has become obsolete. \Comparison musthave been done in presence lof 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 Talag 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 trom hor 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. ep dvanumart.comalag htarwr016 In Mohd Khan vs Mst Shahmali AIR 1972, there was a pre-nuptial agreement in \which the defendant agreed to live in plaintif's parental house after marriage and if he left the house, he would pay a certain sum to the plaintif, tie default of which the ‘condition would act as divorce, twas held that the condition was net unconscionable ‘or opposed to publie paicy. hanumantcom/Talag hit [Note that a wife does not divorce her husband but gets herself divorced from the hhusbana. \Ameer Ali gives three kinds of tafweez - (This is given in Aqil Ahmed’s book. have no idea whats the difference between the three). Ikntiar- giving ner authority o Talag herself [Amt-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 o give Talag, ‘Talaq ¢ taliq- It means contingent divorce. Under the Hanafi law, pronouncement of divorce may take effectimmediately or at some future time or event. By Agreement (Khula - Divorce at the request af wie - A wife has a right to buy her release from marriage from her husband, It must salisty the following conditions - 4..there must be an offer from the wife. 2.the offer must be accepted with consideration (evaz) for the release. 3. the offer must be accepted by the husband. Itbecomes effective as well as irrevocable (Talaq ul bain) as soon asitis 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. Ifthe wif 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 Latesfutoon Nissa, Khula was defined as a divorce by consentin which the wife gives or agrees to give a consideration to the husband forher release from the marriage tie. Khula is thus the right of divorce purchased by the wife fom her husband, Husband must be ladult, sane, free agent (mukhtar), and must have intention to divorce her, Husband has no power lof revocation but wife ican reclaim the ‘consideration during iddat, In this case, the husband can revoke Kuta, Only two conditions| Husband must be adult and sane. Itis irevocable and partners cannot Tesume sexual Intercourse until a {fresh marriage is arranged. Mubarat- pivorce by mutual agreement- Itis 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 ~ 4. Either of husband or wife can make the offer. 2.The other one must accept. 3.As soon as itis accepted, it become irrevocable and iddatis necessary Since itis 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 1913, the Allahabad HC accepted the doctrine of Lian. The fellowing conditions must be satisfied - 1. Husband, who is adult and sane, charges his wife with adultery or denies the paternity of her child 2. Such charge is false. ‘3. The marriage is a Sahih marriage. Features of Lian- 1. Such false charge does not dissolve the marriage automatically but only gives ‘a right o the wife to sue for divorce. The marriage continues til the decree is passed. 2, Wife must fle a regular sult and just an application will not suffice, 3. Judicial separation due to Lian is irrevocable. 4. Lian is applicable only to Sahih marriage and not to Fasid ones, ep dvanumart.comalag ht a8an8n016 anumantcom/Talag hit [Retraction - A husband may retract the charge. However, the retraction must be bona fide and unconditional. must be made before the closing of evidence. Fask - Cancellation - Muslim law allows a lady to approach a qaz/ for dissolving the marriage under the following conditions - 4 ifthe marriage is regular. 2 ifthe person having an option to avoid a marriage has exercised his options. 43.ifthe marriage was within prohibited degrees or ‘osterage. 4: ifthe marriage has been contracted by non-Muslims and the parties have adopted Islam. [Bofore the enactment of Muslim Marriage Dissolution act, this was the only way fora imuslim woman to repudiate a marriage. Ju 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 - 1. Absence of husband 4 yrs. Decree passed on this ground will take affect only after 6 months of passing and ifthe husband shows up during the 6 months he can request the court to set the decree aside. 2. Failure to maintain - for 2 yrs. Cause is immaterial. Poverty, incapacity is no excuse. There is no agreement among Hs regarding the conduct of wife. In Fazal Mahmood vs Ummatur Rahman AIR 1949, Peshawar HC held that fa wife is not faithful or obedient, the husband is under no obligation to maintain her and her sult for divorce was dismissed. However, in Mst Nur Bibi vs Pir Bux AIR 1950, Sind HC held that wife is entied to divorce ifthe husband has failed to maintain her {or two years preceding the sult even though she may notbe entiled to maintenance owing to her bad conduct. Imprisonment of husband -for 7 yrs or more Failure to perform marital obligations -for 3 yrs Impotency of husband - Ifthe husband was impotent atthe 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 - Ifthe wife was married before she was 15, sho 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 teat all his wives equally. Grounds allowed by muslim law - This covers all the grounds such as la, Zihar, Khula, and Mubarat, which are provided by muslim law. ‘Section 4 ofthis act removes apostasy as a ground for granting divorce automatically. However, if 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 Talag propounded in Moonshee Buzloor Rahim vs Lateefutoon Nissa, Talag is a mere arbitrary act ofa muslim husband, by which he may repudiate his wife at his own pleasure with or without cause. Thus, a muslim wife does not have “ny rightto give Talaq toner husband. However, there are ways through which a muslim wife can repudiate her mariage and gota divorce from her husband. These are as follows - 4 -Talag o tatwoer 2.Knula 3.zinar 4.Lian 5.Fask 6. Dissolution of muslim mariage act 1939 Consequences arising from Talaq 1. Marriage = Parties are entitled to contract another marriage. Ife marriage was consummated the wife has to wait until the period of iddat s over, otherwise, she may remarry immediately the marriage was consummated and ifthe husband had four Wives atthe time of divorce, he can take another wife after the period of iddat 2, Dower - Dower becomes payable immediately ifthe marriage was consummated, otherwise, the wife is entitled to half of the ‘amount specified in dower. {no amounts specified, she is entitled to 3 articles of dress. Where the marriage is dissolved due to apostasy of the wife, she is entiled to whole of the dower ifthe marriage has been consummated. 3. Inheritance - Mutual rights of inheritance cease aftr the divorce becomes irrevocable. ep danumart.comalag ht 56ar8n016 anumantcom/Talag hit 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 Salyyad Rashid Ahmad vs Anisa Khatoon 1932 5, Remarriage - Remarriage between the divorced couple is not possible unt! 4. the wife observes iddat 2. ater 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 fulllment of the above is iregular, 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. ep danumart.comalag ht