0% found this document useful (0 votes)
242 views18 pages

Unilateral Divorce in Muslim Law PDF

This document discusses the Muslim law of divorce or talaq. It begins by explaining that under Islamic law, marriage is viewed as a contract that can be dissolved by either party under certain conditions. It then provides historical context, noting that pre-Islamic Arabian society allowed men nearly unlimited divorce rights, while women had virtually none. The Prophet Muhammad introduced regulations to curb arbitrary divorce by men, though unilateral divorce by husbands remained prominent. The document examines different forms of talaq recognized in Islamic schools of law and debates whether the concept of unilateral divorce aligns with teachings of the Quran and hadith.

Uploaded by

Aadhitya
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
0% found this document useful (0 votes)
242 views18 pages

Unilateral Divorce in Muslim Law PDF

This document discusses the Muslim law of divorce or talaq. It begins by explaining that under Islamic law, marriage is viewed as a contract that can be dissolved by either party under certain conditions. It then provides historical context, noting that pre-Islamic Arabian society allowed men nearly unlimited divorce rights, while women had virtually none. The Prophet Muhammad introduced regulations to curb arbitrary divorce by men, though unilateral divorce by husbands remained prominent. The document examines different forms of talaq recognized in Islamic schools of law and debates whether the concept of unilateral divorce aligns with teachings of the Quran and hadith.

Uploaded by

Aadhitya
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 18

INTRODUCTION

The Muslim law of divorce is the logical consequence of the status of marriage. As it regards
marriage as an Aqd or a contract, it confers on both the parties to the contract the power of dissolving
the tie or relationship under certain specified conditions. Divorce is one of the institutions of Islam
regarding which much misconception prevails, so much so that even the Islamic law as administered
in the courts, is not free from these misconceptions. Muslim law knows various forms of dissolution
of a marriage, at the initiative of the husband, the wife, by mutual agreement, or by judicial process. 1
On Muslim law of divorce in general and the Hanafi law in particular, it can be said that divorce at
the instance of the husband is prominent and rather simple. However, this does not mean that divorce
is treated as desirable. In fact, there is a much quoted saying of the Prophet to the effect that, of all
permitted things, divorce is the most reprehensible.2

Divorce at the instigation of the wife has often been portrayed as particularly difficult, and this is
certainly true for Hanafi Muslim law, which is most restrictive in this regard. But the issue should not
be overstated, since the basic principle of Muslim divorce law is that a marital bond which does not
function any more should be terminated to avoid further problems.3

The pre-Islamic law, treating women as chattels, allowed husbands absolute discretion to divorce and
gave wives virtually no right in this regard.4 The trend for reforms in Muslim law, therefore, has been
towards making divorce by the husband more difficult and less instant and harsh, whereas women’s
rights to divorce have been strengthened and expanded by reforms in various countries, notable in the
South Asian jurisdictions.

It is useful to summarise at the outset the most important aspect of the institution of the Muslim
divorce given by the husband, the talaq, which appears in different forms.5 In essence the talaq is the
unilateral repudiation or cutting off of the marital tie.6 Use of talaq is a power available exclusively
to the husband, although it possible for the husband to delegate the power to pronounce the talaq to
some other person, or indeed the wife, who then uses the so-called ‘delegated talaq’ (talaq-i-tafwid)
to free herself from the marital bond. In the classical Muslim law on talaq, the consent of the wife is
not required and the pronouncement or declaration of the talaq is extra-judicial and in no way subject
to any external check. Muslim is evidently not happy with limping marriages. Doi7 and other authors

1 For a convenient overview see now F Ahmed (1994) p 15.


2 Tayyibji (1968) p 143; Doi, (1984); Bharatiya (1996) p 98.
3 Doi (1984) pp 168-169.
4 A good overview is found in Fyzee (1974) pp 146-148; see also F Ahmed (1994) p 3.
5 Tayyabji (1968) p 144, lists and distinguishes twelve different forms of Muslim divorce altogether. Talaq is clearly the
leading phenomenon.
6 Doi (184) p 168 says “literally means to set an animal free”. See in more detail Fyzee (1974) p 150.
7 Doi (1984) 169, 173.

1 | Page
repeatedly emphasise that the husband should not leave the wife ‘hanging in air’. Such concerns may
reflect human rights awareness, but they focus more on sexual morality.

HISTORICAL VIEW OF THE UNILATERAL PRONOUNCEMENT OF TALAQ

“Either retain them with humanity or dismiss them with kindness.

The thing which is lawful but disliked by God is divorce. Talaq with Allah, is the most detestable of
all things”.8

In pre-Islamic Arabia, divorce in its most uninhibited and unrestrained form prevailed. A man
could divorce his wife at any time, and without any reason, at his whim or caprice. In short, for the
severance of marital tie no restrictions of any kind existed to prevent the husband from exercising
his unilateral right of divorcing his wife. That was the obvious reason for the Prophet for making
the above pronouncement. Yet, such were the prevailing social conditions that the Prophet had to
recognize the unilateral right of the husband to divorce his wife.9 Only thing that he could do was to
hedge the husband unilateral and uninhibited power to divorce with some regulations.

Despite the strong condemnation of this arbitrary, unreasonable and capricious exercise of the right
to dissolve the marriage and despite his calling it as a spiritual offence and placing it under divine
displeasure the only thing that could be done was to lay down some moral and legal enjoinment in the
modalities of divorce. The fact of the matter is that even some Ulemas and Khaliphas used this right
with impunity. The provisions for dower, irrevocability of divorce, and restrictions on remarriage
creased some semblance of regulation of this unilateral power of divorce, but that was all.

The present position in India, is that a Muslim husband has the power to pronounce divorce (talaq)
on his wife, Muslim or non-Muslim, Kitabia or fire-worshipper, on mere whim or caprice, without
any reason, at his will and pleasure, without or even against the consent of his wife, and in her
presence as well as in her absence. In sum, despite the enjoinment of the Prophet “With Allah, the
most detestable of all permitted things is divorce”10, a Muslim in India still possesses the power of
divorcing his wife in most uninhibited form. Muslim law places divorce in the category of permissible
things, and divorce is considered to be the most despicable of the permissible things. Yet this most
despicable thing still exists most copiously in India, and even today talaq is the largest aspect of
Muslim Matrimonial law.

MEANING OF TALAQ

8 Quran II, 229; Baillee (1951) 205.


9 Ameer Ali (2004), 427. See also Asha Bibi v Kadir (1909) ILR 33 Mad 22.
10 The Quran IV, 127.

2 | Page
Talak in its primitive sense means dismission. In its literal meaning, it means “setting free”, “letting
loose”, or taking off any “ties or restraint”. In Muslim law it means freedom from bondage of
marriage and not from any other bondage. In legal sense, it means dissolution of marriage by using
appropriate words. In other words, talaq is repudiation of marriage by husband in accordance with the
procedure laid down by law. In Muslim law, this form has acquired a definite meaning and it means
dissolution of marriage effected by the husband according to certain formula recognized by law.

The following verse is in support of husband’s authority to pronounce unilateral divorce (talaq) is
often cited: “Men are maintainers of women, because Allah has made some of them to excel others
and because they spend out of their property (on their maintenance and dower”11). Abdur Rahim says
that with a view to regulating the matrimonial relations, Muslim law allows predominant position
to the husband “because, generally speaking, he is mentally and physically superior of the two; and
some theorists would treat the dower payable to the wife as consideration for the alienation of her
matrimonial freedom”.12 The protagonists of equality of sexes will not agree with Abdur Rahim, but
that seems to be an adequate explanation for the recognition of unilateral divorce in Muslim law.
When the husband exercises the right of pronouncing divorce on his wife, technically, this is known
as talaq. The most remarkable features of Muslim law of talaq is that all the schools of the Sunnis and
the Shias recognize it; they differ only in some details.

In Muslim world, so widespread has been the talaq that even the Imams practiced it. The absolute
power of a Muslim husband of divorcing his wife unilaterally, without any cause, without assigning
any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the
court, and even in the absence of the wife, is recognised in modern India. All that is necessary is that
the husband should pronounce talaq; how he does it, when he does it, or in what manner he does it,
is not very material. In Hannefa v Pathummal,13 the judicial conscience of Khalid J was disturbed at
this, and he dubbed it as a ‘monstrosity’.

Among the Sunnis, talaq may be express, implied, contingent constructive, or even, delegated. The
Shias recognize only the express and the delegated talaq.

TALAQ UNDER THE HOLY QURAN

The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce
does not accord with Islamic injunctions. It is a popular fallacy that a Muslim male enjoys, under
the Quranic Law, unbridled authority to liquidate the marriage. "The whole Quran expressly forbids
a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to

11 The Quran IV, 35.


12 Abdur Rahim (1954) 327.
13 1972 KLT 512.

3 | Page
him, 'if they (namely, women) obey you, then do not seek a way against them'." (Quran IV:34). The
Islamic "law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her
indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons,
no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts
her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the
Prophet, rests on him who repudiates his wife capriciously." Commentators on the Quran have rightly
observed and this tally with the laws now administered in some Muslim countries like Iraq that the
husband must satisfy the court about the reasons for divorce. However, Muslim law, as applied in
India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and
the same misconception vitiates the law dealing with the wife's right to divorce. After quoting from
the Holy Quran and the Prophet, Dr. Galwash concludes that "divorce is permissible in Islam only in
cases of extreme emergency. When all efforts for effecting reconciliation have failed, the parties may
proceed to dissolution of the marriage by 'Talaq' or by 'Khula'. After going through several Quranic
verses and from commentaries thereon by well-recognized scholars of great eminence, the statement
that "the whimsical and capricious divorce by the husband is good in law, though bad in theology"
has been disapproved and it was observed that such a statement is based on the concept that women
were chattel belonging to men, which the Holy Quran does not brook. The correct law of talaq as
ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts
at reconciliation between the husband and the wife by two arbiters, one from the wife's family and
the other from the husband's; if the attempts fail, talaq may be effected.14
Consistently with the secular concept of marriage and divorce, the law insists that at the time of Talaq
the husband must pay off the settlement debt to the wife and at the time of Khula she has to surrender
to the husband her dower or abandon some of her rights, as compensation.”

EXPRESS DIVORCE AND ITS FORMS

When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express.
The express talaq falls into two categories: (i) Talaq-ul-sunna (approved), and (ii) Talaq-ul-badai or
talaq-ul-bidda (unapproved).
The talaq-ul-sunna has two forms: (i) ahsan and (ii) hasan. The former is most approved and the
latter is approved.
The talaq-ul-bidda, also has two forms: (i) the triple divorce or three declarations at one time and (iii)
one irrevocable declaration.
The basic difference distinction between the talaq-ul-sunna and talaq-ul-bidda is, that in the former
case the pronouncement of divorce is revocable while in the latter, it is irrevocable. This seems to

14 Masroor Ahmed v NCT (State of Delhi) MANU/DE/9441/2007.

4 | Page
be the reason why the talaq-ul-sunna is considered to be approved divorce, and the talaq-ul-bidda is
unapproved.

1) TALAQ-UL-SUNNA

(i) AHSAN TALAQ

Talaq-ul-sunna in the ahsan form is the most approved method of repudiation.15At a time when
the wife is not menstruating, in what is known as the tuhr period, the husband pronounces a single
talaq. If he wishes the divorce to be final, he must then refrain from sexual intercourse with the wife
he has divorced during the iddat period of three menstrual cycles.16 At the end of the iddat period,
the marriage is terminated. The dissolution of marital tie arises directly from the unilateral talaq
pronounced three months earlier. This form of repudiation provides an opportunity for revocation,
as the husband can take back his wife at any time during this period. The ahsan formula is therefore
categorised as revocable (raji). Revocation can be implied by conduct; resumption of intercourse
clearly constitutes sufficient evidence of an intention to revoke. The ahsan talaq, provided it is not
the third of such ahsan talaq, is referred to as having smaller or lesser finality and is called the ‘little
method’ (sughra), compared to the greater finality of three divorces, the ‘great method’ (kubra).17
The practical impact of this distinction is very important and explains the stress laid on the difference
between the two categories. Where only one pronouncement of talaq has taken place and the divorce
becomes final through the expiry of the iddat period and non-resumption of cohabitation, lesser
finality and the man has the capacity to remarry his wife by contracting another marriage with her
after the expiry of the iddat without an intervening marriage.18 In general, the practical implications of
the ‘greater finality’ are so much more serious that it is to be avoided.

(ii) HASAN TALAQ

The talaq-ul-sunna in the hasan form, like the ahsan, is classified as an approved or good method of
repudiation, accepted by all schools. However, this form is not considered as accepted as the ahsan
form, mainly because the hasan forms leads to ‘greater finality’.19 The procedure is that the husband
repudiates his wife three times. The first talaq is given during a tuhr period and the husband then
pronounces two subsequent talaqs during the following two tuhr periods. As soon as the husband
pronounces the third talaq, this divorce becomes irrevocable. This form of talaq is also revocable, but

15 For details see Tayyibji (1968) 157-159; Fyzee (1974) 152-153; Nasir (1990) 119; Doi (1984) 175-178; F Ahmed (1994)
17.
16 If the wife is beyond the age for menstruation, or if she does not menstruate, or if her periods are irregular, then three
lunar months form the iddat period.
17 Nasir (1990) 121 calls these the ‘minor’ and ‘major’ methods of repudiation.
18 Nasir (1990) 121.
19 For details see Tayyabji (1968) 159-160; Fyzee (1974) 153-154;Nasir (1990) 119;

5 | Page
only until the third pronouncement. In other words, in the hasan form the marriage does not come
to an end until the pronouncement of the third talaq. The third pronouncement, however, ends the
talaqs. The wife then has to observe an iddat period after the third pronouncement; but the husband
cannot revoke his decision to divorce the wife and if he wishes to remarry her, he can only do so if
she concludes a contract of marriage with another man which is consummated and is itself validly
dissolved.20

2) TALAQ-UL-BIDDA

The talaq-ul-bidda came into vogue during the second century of Islam. Ameer Ali relates the
historical background thus: “The Omayyid monarchs finding that the checks imposed by the Prophet
on the facility of repudiation interfered with the indulgence of their caprice, endeavoured to find an
escape from the strictness of law and found…a loophole to effect their purpose.21 In Hanafi law,
the ‘triple talaq’ or talaq-ul-bidda may be used by the husband. Although disapproved by classical
jurisprudence, it has the advantage, for the husband at least, of simplicity and finality. Doi (1984, p
179) says it “is usually done by ignorant Muslims to satisfy their selfish motives” and emphasises that
it involves a heinous sin against the precepts of the Shari’a. However, such a divorce is legally valid,
except for Shi’ites and the moral disapproval of this form has not stopped it from becoming popular
in many parts of the Muslim world, for the obvious reason that it suits men. The talaq-ul-bidda has
two forms22: (i) the triple declaration of takaq made in a period of purity, either in one sentence, such
as, “I divorce thee triply or thrice,” or in three such as, “I divorce thee, I divorce thee, I divorce thee”.
The moment the pronouncement is made, the marriage stands dissolved irrevocably. (ii) the other
form of talaq-ul-bidda constitutes a single irrevocable pronouncement of divorce made in a period
of purity or even otherwise. This also results in the irrevocable dissolution of marriage.23 The triple
pronouncement is not an essential part of the talaq-ul-bidda; if the intention is clear, the divorce will
take place. Thus, if a husband says to his wife, “I had divorced thee in talaq-ul-bidda or talaq-ul-bain
form”, that is enough and an irrevocable divorce will result.

This form of divorce in condemned. It is considered heretical, because of its irrevocability. The
talaq-ul-bidda which is “good in law though bad in theology” is the most common mode of divorce
prevalent in India.24

IMPLIED AND CONTINGENT DIVORCE

20 For this reason, this form of talaq is referred to as a ‘big talaq’ or kubra. For details see Nasir (1990) 121.
21 Ameer Ali (2004) 474.
22 Saiyad v Anisa AIR 1932 PC 25.
23 See Fyzee (1974) 147; Sheikh Fazher v Aisa ILR (1929) 8 Pat 690; Salema v Sheikh AIR 1973 MP 207.
24 Mulla (2008) 298.

6 | Page
Sometimes the words used in the pronouncement of talaq are not clear, for instance, when a husband
says to his wife, “I give up all relations and would have no connection of any sort with you”, or “I
have released thee from being my wife”, in such cases divorces will be implied if the intention to
divorce is proved. According to Ameer Ali, “The word talaq in its different grammatical forms is
regarded as express and other expression which may be construed as meaning repudiation of the
marriage by the husband, but are also capable of other meanings, are regarded as allusive. When
express words are used no question can arise as to what was meant, but allusive words require
construction”.25

When a husband pronounces divorce so as to take effect on the happening of a future event, the
talaq is known contingent, and it becomes effective on the happening of the event. The Shias do not
recognise the implied and contingent talaq.

In the extra-judicial forms of Muslim divorce, the husband’s right of talaq can be either suspended
or delegated. In the suspended or conditional talaq, the repudiation occurs automatically after a
particular event. The most example of this form of delegated talaq occurs when the husband contracts
a marriage with a second wife, in which case the second marriage will activate a suspended talaq.
Stipulations generally are not very common, however. Interestingly, they have changed in nature, as
detailed recent research confirms. If any particular condition is agreed upon, then to that extent the
wife will have some protection, in that she can be sure to be released from a disagreeable marriage.
The right of talaq in this situation is no longer the right of the husband, since it was the woman who
inserted the stipulation.

TALAQ-I-TAFWID

The delegated talaq (talaq-i-tafwid) is also well recognised by all schools of law.26 In this form the
Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person.
He may delegate the power, absolutely or conditionally, temporarily or permanently. 27 A permanent
delegation of power is revocable, but a temporary delegation of power is not. The delegation must be
distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must
be clearly stated. This has been thus illustrated by Ameer Ali: if a husband says, “choose thyself”
or “choose a repudiation”, and if the wife answers. “I choose” or “I have chosen myself” or “I have
chosen a talaq”, it would be sufficient. But if he were merely to say, “Choose” and the wife reply, “I

25 Abdur Rahim (1954) 338.


26 This if often spelled talaq-e-tafwiz or in Arabic, tafwid-at-talaq, delegation of divorce. Nasir (1990) gives it little
attention.
27 Baillie (1951) 109, 238.

7 | Page
have chosen,” this is not sufficient, and there is no talaq.28

The power of talaq may be delegated to the wife, and as Fyzee observes, “This form of delegated
divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without
intervention of any court is now beginning to be fairly common in India”.29 This form of delegated
divorce is usually stipulated in pre-nuptial agreements. In a case under a pre-nuptial agreement, a
husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred
by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce
on his wife. The husband left his father-in-law’s house without paying the expenses. The wife
exercised the right and divorced herself. It was held that it was a valid exercise of the power of talaq
delegated to her.

In the talaq-i-tafwid, though it is the person to whom the power is delegated who exercises the
power of divorcing, the divorce in the eyes of the law is made by the husband. Thus, when a wife is
delegated the power of divorce, and in exercise of that power she pronounces the divorce, the power is
exercised on behalf of the husband who had delegated it to her, and therefore, in law it is a talaq of the
wife by the husband.

CAPACITY TO DIVORCE

“Every divorce takes place except that pronounced by a minor”.30 Thus, said Prophet Mohammad.
Muslim law lays down that a Muslim who is minor and of unsound mind has no capacity to
pronounce divorce.31 It appears that age of minority is to be determined by Muslim law, which means
that a Muslim male who has attained puberty can pronounce divorce. A talaq pronounced by a person
of unsound mind or below the age of puberty is void.32 Such a talaq cannot become effective even if
the guardian accords his consent.33
The second requirement of capacity is that the person must be of sound mind. A talaq pronounced
by an idiot, lunatic or person of unsound mind is void. However, a person of unsound mind may
validly pronounce talaq during lucid intervals. Muslim law authorities go to the extent of holding that
a pronouncement of divorce made by a person who suffers from a disease which dulls his mind and
makes him almost like person of unsound mind will not be valid.

28 Ameer Ali (1985) 496.


29 Fyzee (1974) 151-152.
30 Hedaya 525.
31 Durr-ul-Mukhtar, 123; Hedaya, 75.
32 Asha Bibi v Kadir ILR (1909) Mad 22.
33 Fatwa-i-Alamgiri I 499.

8 | Page
Dumb Person. –A talaq pronounced by a dumb person is valid, provided it is expressed in positive
and intelligible signs. Shia law lays down that a talaq pronounced by a dumb husband by signs
sufficiently and clearly indicating to divorce is valid.
It appears that under Sunni law a person who is born deaf and dumb may pronounce talaq by
intelligible signs or in writing. But a person whose dumbness is not congenital but supervening can do
so only by a written deed.
Better opinion seems to be that when a dumb person is literate, he should pronounce divorce in
writing.34
Person in Delirium, in Faint or Sleep or Unconsciousness. –All schools of Muslim law agree that
a talaq pronounced by a husband who is in delirium, in faint, in sleep or unconsciousness is totally
invalid.35
Talaq under Compulsion. –The most curious aspect of Hanafi law of divorce is that a talaq
pronounced under compulsion or under intoxication is valid. So is a talaq pronounced to please one’s
father. According to the Hedaya:36

The foundation of this is that the man alluded to has the choice of two evils, one, the thing with which
he is threatened or compelled, and the other, divorce upon compulsion and viewing both, he makes
choice of that which appears to him the easiest, namely, divorce and this proves that he has an option,
though he be not desirous that its effect should be established, or in other words, that divorce should
take place upon it.
According to the Fatwa-i-Alamgiri37--
A talaq pronounced by an adult and a sane Muslim male is valid even though pronounced under
compulsion or even when it is uttered in sport or jest or inadvertently by a mere slip of tongue.
Thus it has been held that a talaq is valid even though given to satisfy some one, a relation or a
friend.38 Similarly, when a Muslim, under compulsion, appoints another person to pronounce talaq on
his behalf and if that person, in exercise of the authority so conferred, pronounced talaq on the wife,
the talaq will be valid.39
According to Ameer Ali for the validity of a talaq pronounced under compulsion, the following three
conditions are necessary:-40
(i) The compeller must be in a position to do what he threatens to,
(ii) there is a strong possibility of threat being carried out, and

34 Rudd-ul-Muktar II 697.
35 Ameer Ali (1985) 484.
36 Hedaya 4.
37 Fatwa-i-Alamgiri I, 499.
38 Jorima v Hafizuddin AIR 1926 Cal 242; Rashid Ahmad v Anisa (1932) 59 IA 21.
39 Baillee (1951) 210, Hedaya 583.
40 Ameer Ali (1985) 480.

9 | Page
(iii) the threat involves some imminent and serious danger to the man.
Mere trifling injury is not sufficient to establish compulsion. The question is, whether talaq is under
compulsion against public policy. It appears that in Rashid v Anisa,41 the Privy Council said that since
such a divorce is valid under Muslim law, the question of public policy did not arise.
A divorce under compulsion becomes valid, the moment it is pronounced.
It is also a curious aspect of Muslim law that when a talaq under compulsion is in writing is not valid.
Similarly, a talaq obtained from a Muslim under detention or after giving him thrashing is not valid. 42
In Nur Bibi v Ali Ahmed43, the Allahabad High Court held that an acknowledgement of talaq under
compulsion would be invalid if it was proved to be untrue. Confirmation of such a talaq is also no
valid.44 On the other hand, a written compromise signed by the husband and wife addressed to the
wife would amount to valid talaq, as it is not just an acknowledgement but pronouncement of talaq.
But these are not cases of compulsion.

Shia, Shaifi and Maliki law. –The Shia law does not recognise talaq pronounced under compulsion,
or by fraud or under the influence of liquor or drugs. The Malikis and the Shaifis also do not
recognise talaq pronounced under compulsion or threat.
Talaq under Intoxication. –Under the Hanafi law there is some controversy as to whether a talaq
pronounced under the influence of intoxicants is valid.45
But when talaq is pronounced under involuntary intoxication, or in a state of perturbation, there is
difference of opinion. One opinion that talaq pronounced in a state of voluntary intoxication will not
be valid, if it caused by taking something for a necessary purpose, such as when opium or wine is
taken as a medicine.
Under Shia law, talaq under the influence of intoxicants whether consumed voluntarily or
involuntarily, is not to be valid.
It seem under Shafii law, talaq pronounced under a state of voluntary intoxication is valid.
Talaq in Jest or by Mistake. –The prophet said, “there were three things which whether done in joke
or earnest, shall be considered as serious and effectual: one marriage, second divorce, third taking
back.” From this tradition a rule of law is deduced that a divorce pronouncement in jest or sport is
valid. The juristic principle on which this rule is based is the hypothesis that talaq from the point of
view of the woman is restoration of her liberty. Thus, is Muslim law talaq pronounced in sport, in jest
or inadvertently or by mere slip of tongue or in talking facetiously, is valid. Such is the ramification of

41 (1932) 59 IA 121.
42 Ameer Ali (1985) 485.
43 AIR 1925 All 550.
44 Buksh Ali v Ameerun 2 WR 208.
45Jorima v Hafzuddin AIR 1926 Cal 242. Some hold the view that if voluntary intoxication caused by consuming wine
made from grapes, dates, hemp leaves or is caused by opium, or henbana seed, then talaq pronounced under such condition
would be valid.
10 | Page
this principle that a talaq pronounced carelessly is also valid.46
The Shias, the Shafiis, the Malikis and Hanbals do not recognise this form of divorce. The Shia law
insists that for effecting talaq free will and intention to divorce are essential.
Under the Hanafi law, talaq pronounced by a Muslim under a mistaken belief that the woman is not
his wife, while in fact she is, is valid.47 On the other hand, if a Muslim under a mistaken belief that
the woman whom he is pronouncing a divorce is his wife, while in face she is nobody to him, then his
wife does not stand divorced. Similarly, a person pronounces talaq on a woman who is not his wife,
but subsequently, he marries her, no divorce takes place.
Talaq during Sleep or Unconsciousness. –All schools of law agree that a talaq pronounced by one
who happens to be delirious, or in faint or asleep, unconscious or in stupor or lost in astonishment is
invalid.48 Such a talaq will not become valid if such a person ratifies it on recovering full sense.

EFFECT OF TALAQ

Regarding the effect of talaq, an important point is the exact moment in time when the divorce takes
effect. This moment differs depending on the form of talaq. In the ahsan form, the talaq is effective at
the expiry of the iddat period. In the hasan form, it is effective on the third pronouncement, while in
the al-bidda form, is effective at once.49 As soon as the divorce is irrevocable, the marital relationship
is over. Indeed, any intercourse at this stage will be viewed as zina. A revocable divorce, of course, is
subject to the iddat period. On important effect which arises as a result is that if the party dies during
this period of iddat, the rights of inheritance are preserved. Inheritance rights inter se do not exist after
the pronouncement of talaq-al-bidda, even if one of the parties dies during the iddat period following
such divorce. The iddat period following the talaq-al-bidda and the third pronouncement of the
talaq-ul-sunna in the hasan form enables the wife to obtain maintenance from her former husband. A
woman has no capacity to contract herself in marriage to another man during the iddat period.

FORMALITIES OF TALAQ

There are no fixed formalities in the classical Sunni Law, laying down the manner in which the
repudiation is pronounced. There is no requirement of witnesses and the wife need not be even be
present. The talaq can either be oral or in writing and any words can be used. In one old Indian case,
the husband said to his wife, “Thou art my cousin, daughter of my uncle, if thou goest.”50 Evidence
was presented to the Court, and accepted, that this statement meant that if or when the wife left the

46 Rashid v Anisa (1932) 59 IA 121; Md Azam v Akhtarunnissa PLD (1957) Lah 195.
47 Furzunal v Jazu ILR (1871) 4 Cal 588.
48 Rudd-ul-Muktar, II 697.
49 The al-bida has been declared ineffective by a recent fatwa of the Ahl-i-hadith in India, which was published on May 21,
1993. For details see F Ahmed (1994) esp pp 140-141. Such attempted reforms reflect growing disquiet over the husband’s
unilateral power to divorce if is not matched with obligation on him to consider the welfare of the wife and, in particular, ant
children of the marriage.
50 Hamid Ali v Imtiazan ILR (1872) 2 All 71.

11 | Page
house, she would be no other relation to the man than a cousin, which she was, indicating clearly that
she would no longer be regarded as his wife. In this case, therefore, effect was given to the intention
of the husband to pronounce a talaq-ul-bidda. On the other hand, the Shias insist that divorce must be
pronounced orally and in the presence of two competent witnesses. The specific formula of divorce
must be pronounced. The Sunnis permit divorce in writing, too, but the Shias insist that talaq should
be oral, unless the husband is physically incapable of pronouncing it orally. The Ithana Ashris also
require that certain Arabic words must be used in the formula of divorce51, though mispronunciation
is tolerated, and vernacular is permitted if the husband does not know Arabic language. 52 In contract
with this position, in the Hanafi law a divorce pronounced by way of jest is valid. Indeed, in this law
even a divorce pronounced when drunk, or by mistake, or under duress is valid. The justification for
this rule in Hanafi law is that this law looks to the act rather that the intent. Among the Hanafis, the
talaq may be oral or in writing53, so long as the intention is clear, no specific form is necessary. Any
words may be used. Thus, the words like these: “Thou are divorced”, or “I have divorced thee”, are
enough and will result in the dissolution of marriage. When the words clearly denote talaq, the
intention of the husband is inconsequential. Thus, when a man says to his wife, “I have divorced
you”, either in her presence, or in her absence, it means that the man has divorced his wife. 54 Not
merely this, in the proceedings for maintenance, or in the written statement in the wife’s suit for
restitution of conjugal rights or in proceedings under section 125 of the Code of Criminal Procedure,
1973, if the husband takes the plea that he had pronounced talaq on his wife, that is enough and
results in divorce.55 If the words used in the pronouncement of talaq are not clear or ambiguous, then
the proof of intention is necessary. Thus if words like, “Thou art my cousin, my uncle’s daughter, if
thou goest”56 or “I give up all relations and will have no connection of any sort with you”57 are used,
the proof of intention to divorce is necessary.58 It is not necessary that the talaq should be pronounced
in the presence of wife; not a notice of divorce is required.59 It is also not necessary that it should be
addressed to her.60 Bu the wife must be named, if she is not named, talaq will not be valid.61

51 Bailllie (1951) 113, 15.


52 For details see Nasir (1990) 115-116; Bhartiya (1996) 102-103. This is also being challenged in Modern India, see F
Ahmed (1994) 95.
53 Sattar Shaikh v Sahidunnissa 1979 ALJ 415.
54 Ghausibibi v Ghulam Dastgir (1968) 1 Mys LJ 566.
55 Chunoo Khan v State (1967) All WR 217; Abdul Shakkoor v Kulsum (1962) 1 Cr LJ 247; Ali v Rehmani (1972) 74 PLR
869; Md Haneefa v Pettemmal AIR 1972 KLT 512, for contrary view see Imam v Hajju AIR 1960 AP 130.
56 Hamid Ali v Imtiaz Ali ILR (1878) 2 All 71.
57 Wazid v Zafar AIR 1932 Oudh 34.
58 Ma Mi v Kallander (1927) 54 IA 61.
59 Md Shamsuddin v Noor Jahan AIR 1955 Hyd 144.
60Ma Mi v Kallander (1927) 54 IA 61; Ahmed v Khatton AIR 1933 Cal 27; Fulchand v Nazib ILR (1909) 36 Cal 184;
Sarabai v Rabia Bai (ILR) (1905) 30 Bom 536. In Abdul Khedar v Azeeza AIR 1944 Mad 227 and Chandbibi v Badsa
(1962) 62 Bom LR 866 the court said that the talaq will be effective from the date on which it is communicated to the
wife; most of the case take the view that it is valid the moment it is pronounced; Fulchand v Nazib ILR (1909) 36 Cal 184;
Monoli v Moideen (1968) MLJ 660.
61Rashid v Anisa (1932) 59 IA 21; Furzumal v Jazu ILR (1871) 4 Cal 588; Asha v Kadie ILR (1909) 83 Mad 32.

12 | Page
Although for validity of talaq the presence of the wife is not necessary, for certain purposes
communication of talaq is required. Since, on divorce, dower becomes payable and the wife has to
undergo the iddat, the communication of talaq is necessary.62 The period of limitation for the purpose
of recovery of her deferred dower will start running only from the date when the communication of
talaq reaches her.63 She can also claim maintenance from her husband till such time the
communication of talaq reaches her.64

TALAQ IN WRITING

As has been stated earlier, the Sunnis recognise written talaq which may be in two forms: manifest
talaq and unusual talaq. When the talaqnama is properly written so as to be legible and clearly
indicating to whom and by whom it is addressed, it is in the customary form. This is known as
manifest talaq. It may be executed in the presence of the Qazi, the wife’s father, or any other relation
or witnesses.65 If the talaqnama is not subscribed in the aforesaid manner, it is called unusual, and
the intention to divorce has to be proved.66 If the talaq is manifest, it operates to dissolve the marriage
immediately and irrevocably, as in a talaq-ul-bidda, even though not communicated to the wife.67 But
the communication of written talaq is necessary, for the purpose for which the communication of oral
talaq is required.68
A Sunni husband may also make a written acknowledgement of divorce, in which case, the divorce is
operative, at least, from the date of acknowledgement.69
As has been already stated, the Shias recognise written divorce only when the husband is physically
incapable of pronouncing oral talaq.

INTERPRETATION OF THE MUSLIM LAW OF TALAQ BY THE INDIAN JUDICIARY

The views of judiciary on the subject of talaq have been different at different points of time. The
following cases have critically analyzed so as to lay down the Muslim law on talaq and especially
talaq-e-bidda(Triple Talaq) as practiced in India.

62 Fool Chand v Nazib ILR (1909) 34 Cal 184.


63 Kathiyumma v Urathel (1931) 33 IC 375.
64 Ma Mi v Kallander (1927) 54 AI 61;Abdul v Azeeza ( 1944) 1 MLJ 17.
65Sarabai v Rabia Bai ILR (1905) 30 Bom 536; Ahmed Kasim v Khatun Bibi ILR (1939) 59 Cal 833.
66 Sarabai v Rabia Bai ILR (1905) 30 Bom 536; Md Isaq v Saira AIR 1936 Lah 611.
67 Baillie (1951) 233, Hyat v Abdulla AIR 1937 Lah 270; Rajasahib (in re) ILR (1920) 44 Bom 44; Ahmed v Khatoon ILR
(1932) 59 Cal 833; Md Shamsuddin v Noorjahan AIR 1949 Hyd 144, the divorce is effective from the date on which the
deed is executed.
68 Ahmed Kasim v Khatun Bibi ILR (1939) 59 Cal 833; Chandbibi v Badsa AIR 1961 Bom 121.
69 Asmar v Khatunnisa AIR 1939 All 592.

13 | Page
Justice Baharul Islam70 through the paramount source of Islamic Authority has given a right
meaning to law of divorce under Islam. He attempted a bold break through to reveal the true
meaning and connotation of talaq as envisaged in the Holy Quran. Finally, he projected the true
concept of talaq as enjoined by the great light that:
Talaq must be for reasonable Cause;
It must be preceded by “attempts at reconciliation; and
It “may be effected” if the said effects fails.71
In arriving at this conclusion, Baharul Islam J. considered various verses of the Quran and
opinions of scholars and jurists such as Mohammad Ali, Yusuf Ali, Ameer Ali and Fyzee. The
learned Judge went on to hold: In other words, an attempt at reconciliation by two relatives - one
each of the parties, is an essential condition precedent to ‘talaq’.

In a subsequent decision of a Division Bench (Baharul Islam CJ & D Pathak J) of the Gauhati
High Court in the case of Mst Rukia Khatun v Abdul Khalique Laskar,72 the decision in Jiauddin
Ahmed case was held to have correctly laid down the law on the subject and the decisions of the
Calcutta and Bombay High Courts in ILR 59 Calcutta 83335 and ILR 30 Bombay 53736 were
observed to be not correct law.
Also Krishna Iyer J in the case of A Yousuf Rawthher v Sowramma73 held that it is a popular fallacy
that Muslim Male has unbridled power of divorce as it is against the injunction of Holy Quran and
that the Muslim law as applied in India has taken a course contrary to the spirit of Islam. Further in
the case of Riaz Fatima v Mohammad Sharif74 the Delhi High Court, held triple talaq to be invalid in
the eyes of law. And recently in the case of Masroor Ahmad v State (N.C.T of Delhi) & Another75the
question before the court was about the validity of Triple talaq under the Muslim law. The Court
held that triple talaq (talaq-ul-bidda) ought to be regarded as one talaq revocable during the period of
iddat. Further emphasis was laid on the importance of reconciliation before the procedure for divorce
is to be started.

The attempt at reconciliation which is recommended under the Shariat, has been assigned a key
role by the Supreme Court. After Shamim Ara v State of Uttar Pradesh, the position of the law
relating to talaq, where it is contested by either spouse, is that, if it has to take effect, first of all the
pronouncement of talaq must be, then reasonable cause must be shown as also the attempt at
reconciliation must be demonstrated to have taken place. This would apply to ahsan talaq, hasan

70 He was Chief Justice of Gauhati High Court and tried to give correct meaning to law of divorce among Muslims in India.
His view point on talaq get support of Prof. Tahir Mahmood’s writings on Talaq: the Muslim Law of India (1980).
71 Sayid Rashid Ahmad v Anisa Khatun, AIR 1932 PC 25.
72 (1981) 1 GLR375.
73 AIR 1971 Ker 261.
74 135 (2006) DLT 205.
75 MANU/DE/9441/2007.

14 | Page
talaq as also talaq-e-bidda.38An issue which needs to be un-knotted is - does the attempt at
reconciliation necessarily have to precede the pronouncement of talaq or can it be after the
pronouncement also? The two Gauhati High Court decisions and that of the Supreme Court in
Shamim Ara have gone on the understanding that the attempt at reconciliation must precede the
pronouncement of talaq itself. But, those decisions did not consider the distinction between a
revocable and an irrevocable talaq. Those decisions, in my respectful view, proceeded on the basis
that the talaq in each of the cases was of an irrevocable nature. Once a talaq is of the irrevocable
kind, it is obvious that the effort at reconciliation must precede its pronouncement. But, where a
talaq is revocable, the attempts at reconciliation can take place even after the pronouncement. This
is so, because, in a revocable talaq, the dissolution of marriage does not take place at the time of
pronouncement but is automatically deferred till the end of the iddat period. This duration is
specifically provided so that the man may review his decision and reconciliation can be attempted.
A hasan talaq is revocable. So also are the first two talaq pronouncements in the case of ahsan
talaq Now, talaq-e-bidda has also been held by to be operative as a single revocable talaq. In all
these cases of revocable talaq, the attempt at reconciliation may, in my view, take place after the
pronouncement of talaq. The crucial point is that for a pronouncement of talaq to result in the
dissolution of the marital tie there must be an attempt at reconciliation. In the case of an
irrevocable talaq, it must precede the pronouncement and in the case of a revocable talaq, it may
precede or it may be after the pronouncement but before the end of the iddat period. Also the
husband has to duly establish that he has properly followed the procedure of divorce as laid down
in the Holy Quran.

CONCLUSION

There is no doubt that under the Mahomedan law the commonest form of divorce is a unilateral
declaration of pronouncement of divorce of the wife by the husband according to the various forms
recognised by the law. Among the pre- Islamic Arab, the power of divorce possessed by the husband
was unlimited and was of frequent occurrence without any regard to the marital obligations. They
could divorce their wives at any time, for any reason or without any reason. This may have been
an advantage to the husband but was a heinous atrocity on the women. In order to curb this social
evil, the Prophet framed laws governing marriage and divorce. Accordingly he allowed the exercise
of power of divorce under certain conditions and permitted the parties to divorce the parties three
distinct and in separate time periods within which they might endeavour to become reconciled; but
should all attempt to reconcile prove unsuccessful, then in the third period the final separation become
effective76. This is the Quranic injunction on the law of divorce as practiced in Muslim Law. In
the present times, especially in India, it is a major fallacy that it is thought a Muslim husband has

76 Ameer Ali (1985) 170.

15 | Page
an unbridled authority to pronounce talaq on his wife whenever he wants for no reason whatsoever.
The courts too in the beginning interpreted the Quran in way that accorded the Muslim husband this
very right. The basic reason for this attitude of the judiciary could be due to the fact that judiciary
in British India believed that the Muslims in India have faith that there law is of ‘divine origin,
therefore is infallible, immutable and unchallengeable There was reluctance among the judiciary on
the account that a decision should not hurt the feeling of the general Muslim they inspite of realizing
the deficiency could not contribute meaningfully.

But later on the trend changed due to the study of true Islamic law and writing of many authors
like Ameer Ali, Yusuf Ali and it was contradicted that the law of divorce in Islam gave arbitrary
and whimsical power to husband to divorce his wife. As it has been already mentioned that the
true Islamic philosophy of Talaq as enunciated in Quran reveals that there is no scope of arbitrary
and easy divorce in Islam and the same started being applied by the Indian Judiciary and it laid
three basic requirements which need to be fulfilled in order to bring a valid divorce. These are first
of all the pronouncement of talaq must be proved (it is not sufficient to merely state in court in a
written statement or in some other pleading that talaq was given at some earlier point of time), then
reasonable cause must be shown as also the attempt at reconciliation must be demonstrated to have
taken place Also the husband has to duly establish that he has properly followed the procedure of
divorce as laid down in the Quran. Therefore, we see, that only that talaq will be validated by the
Court which is in consonance with the basic tenets of the Holy Quran and any procedure that is
against the injunction of the Holy Quran will not be accorded the validity of law. At the same time, it
needs to be highlighted that under Muslim law, even though marriage is a contract, the husband and
the wife are under a moral and legal obligation to fulfil their duties towards each other and cannot cut
off their marital ties whenever they want without any legitimate reason. A husband while practicing
his right to pronounce divorce on his wife should follow the said procedure as laid down in the Holy
Quran and avoid as far as he can to exercise this right.

It will be in the betterment of the Muslim Community if the customary law of talaq is codified by
the Parliament just like the Hindu Marriage Act. Such a law will not only create an awareness of the
correct procedure as ordained in the Quran but will also make sure that the Muslim husband while
exercising his right to pronounce divorce does not abrogate his wife’s fundamental rights. Such a
law would remove the misgivings and fallacies that exist in Islam on this particular subject of talaq
and will bring about a clarity which will not only help the cause of the Muslim women but the entire
Muslim Community as a whole.

16 | Page
BIBLIOGRAPHY

Abdur Rahim, Principles of Muhammadan Jurisprudence ( All-Pakistan Legal Decisions Lahore


1958).
Arif Ali Khan, Family Law in Islam (6th edn, Pentagon Press 2007).
Asaf AA Fyzee, Cases in Muhammadan Law of India, Pakistan and Bangladesh (2nd edn, Oxford
University Press 2005).
Asaf AA Fyzee, Outlines of Muhammadan Law (2nd edn, Oxford University Press London 1955).
David Pearl and Werner Menski, Muslim Family Law (3rd edn, Sweet & Maxwell London
1998).
Faiz Badrudin Tyabji, Muslim Law (4th edn, NM Tripathi Ltd Bombay 1968).
M Hidyatullah and Arshad Hidyatullah, Mulla Principles of Mahomedan Law (19th edn, Lexis
Nexis Butterworths Wadhwa 2008).
Neil BE Baillie, A Digest of Mohammadan Law (3rd edn, Premium Book House Lahore1951).
Paras Diwan, Law of Marriage and Divorce (4th edn, Universal Law Publishing Co Pvt Ltd 2002).
Syed Ameer Ali, Mohammadan Law (4th edn, English Book Store New Delhi 1985).

17 | Page
18 | Page

You might also like

pFad - Phonifier reborn

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.

Note: This service is not intended for secure transactions such as banking, social media, email, or purchasing. Use at your own risk. We assume no liability whatsoever for broken pages.


Alternative Proxies:

Alternative Proxy

pFad Proxy

pFad v3 Proxy

pFad v4 Proxy