This article is written by Ritik Chaurasiya,College – LC-1 ( 1st Year ) Course – LLB ,during his internship with Le Droit India.
Overview:
According to Islamic law, a husband has the right to divorce his wife of his own free will. He doesn’t always have to file a divorce petition in court. He can divorce his wife just by pronouncing “talaq, talaq, talaq”. However, this comfort given to the husband comes with certain rules that must be followed in the proclamation. Starting with Shayala Bano’s very famous case where the Supreme Court ruled that triple talaq is invalid under Muslim law, many people now believe that concepts like triple talaq are not valid under Muslim law. I don’t think so. But it’s not. This concept is still widely used under the Act. In this article, the author tried to explain the concept of divorce in Muslim personal law and the very notorious term “triple talaq”.
Keyword:
Islamic law, triple talak, tuhar, idat
1. INTRODUCTION –
Almost all ancient peoples viewed divorce as a corollary of marriage law. The Romans, the Hebrews, the Israelites, etc. all got divorced in some way. Although the decision to divorce is recognized in all religions. Islam is probably the first religion in the world to explicitly recognize the termination of marriage by divorce. Divorce was introduced in England 100 years ago. In India, it was only allowed among Hindus by the Hindu Marriage Act of 1955. Prior to the passage of this law, divorce was not recognized by Hindu law.
Divorce among the ancient Arabs was easy and common.In fact, this trend continues to some extent in Islamic law, despite the fact that the Prophet expressed disgust towards it. considered it most abhorrent before Almighty God. Because it interfered with marital bliss and prevented proper parenting. 2. Talaq (Rejection)-Meaning.-Talaq literally means refusal or refusal, but according to Islamic law it means immediate orfinal liberation from the bondage of marriage. This is a generic term for all types of divorce. But especially in cases of refusal by or on behalf of the husband. Moonshee Buzloor Rahim v. Laleefutoon nisa was told that according to Islamic law, tarak is simply the arbitrariness of a Muslim husband who can expel his wife at his discretion with or without cause. He can pronounce Tarak at any time. He is not required to obtain his wife’s prior consent for the dissolution of the marriage.
A revocable declaration of talaq does not dissolve the marriage until the duration of the iddat expires, whereas an irrevocable declaration dissolves the marriage immediately after the declaration.5
Qualifications of Tarak. To be able to pronounce a valid talak, the husband must have the following qualifications: Under Shiite law, a healthy Muslim husband who has reached puberty is allowed to pronounce the talaq provided that it is uttered verbally and not under coercion or coercion. (at least in the presence of her two witnesses). ) , unless the husband cannot speak
Sunni Law.-Any Sunni Mohammedan of sound mind who has attained majority may divorce his wife whenever he likes by pronouncing talaq even without assigning any cause. Thus according to Sunni Law every man is capable of pronouncing Talaq who is (i) adult, and (ii) sane. Apart from Muslim Law, the provisions of Indian Majority Act, 1875 are also applicable to Muslims. Section 2 of the aforesaid Act says that nothing herein contained shall affect the capacity of any person to act in the following matters (namely) marriage, dower, divorce and adoption. Similarly soundness of mind is one of the necessary ingredient for dissolving marriage. A talaq pronounced under compulsion or intoxication or fraud is also effective under Sunni law but void under Shia Law.
Talaq pronounced under intoxication.-Muslim Law on the question of talaq under intoxication is not plain. One view is that if the husband was forcibly made drunk, and has pronounced talaq, such a talaq will not take effect. Ameer Ali was of the opinion that a talaq pronounced by a person in a state of intoxication or by one labouring under a temporary stupor from the use of some practice, or any other cause is invalid. According to Shafei School, the talaq of a drunken man is not recognised by Muslim Law.
Fyzee says that in Turkey under the Sultans, by a well understood convention, a wife who wished to be rid of a dissolute husband would go before the Qazi with two irreproachable witnesses and depose that he had divorced her when drunk, an allegation which could not be in a position to deny. Under the Sunni Law of Schools there are jurists who are of the opinion that talaq during intoxication in any manner would not be validly effected. On the other hand, there are jurists who hold the view that such divorce will be valid.
Different modes of Talaq-A talaq may be effected by the husband in any of the following modes:
- Talaq-ul-Sunnat ;
- Talaq-ul-Biddat;
- Ila; and
- Zihar
- Talaq-ul-Sunnat.-It is Talaq which is effected in accordance with the traditions of Prophet. It has been further sub-divided into :
- Ahsan, and
- Hasan.
- Ahsan (Most approved mode of talaq).-This Arabic word ‘ahsan’ means ‘best’ or as Wilson puts it, ‘very proper’. This signifies that the talaq pronounced in the ahsan form is very best kind of talaq. To be in ahsan form, the proceedings of divorce must satisfy certain conditions. These conditions are as follows:
- The husband must pronounce the formula of divorce in a single sentence; (b) the pronouncement of divorce must be in a state of purity (tuhr); (tuhr) is a period when a woman is free from her menstrual course);he must abstain from intercourse for the period of iddat. When the marriage has not been consummated, a talaq in the ahsan form be pronounced even if the wife is in her menstruation. Where the spouses may are away from each other for a long period or where the wife is beyond the age of menstruation, the condition of tuhr (purity) is not applicable.
The Quran Itself says:
“And the divorced woman should keep themselves in waiting for three courses (II-228) and
“And those of your woman who despair of menstruation, if you have a doubt, their prescribed time is three months, and of those too, who have not had their course” (XXXVIII-4)
A pronouncement made in the ahsan form is revocable during iddat. Such revocation may be either in express words or may be implied. Cohabitation with the wife is an implied revocation of talaq. After the expiration of the iddat the divorce becomes irrevocable.
- Hasan (Good mode of talaq).-In Arabic Hasan means ‘good’. Wilson translates it as ‘proper’. As terms signify, a talaq pronounced in hasan form is of lesser worth than the one pronounced in ahsan form. To be in hasan form the proceedings must satisfy the following conditions:
- There must be three successive pronouncements of the formula of divorce;
- In the case of menstruating wife, the first pronouncement should be made during a period of tuhr, the second during the next tuhr and the third during the succeeding tuhr;
in the case of non-menstruating wife, the pronouncement should be made during the successive intervals of 30 days;
# No sexual intercourse should take place during these three periods of Tuhr.
The above divorce is based on the following Quranic injunctions :- Divorce may be pronounced twice, then keep them in good fellowship or let (them) go kindness” (II; 229), “So if he (the husband) divorces her (the third time) she shall not be lawful to him afterward until she marries another person” II: 230
Such divorce becomes irrevocable on the third pronouncement.
- Talaq-ul-biddat.-(Disapproved mode of talaq). It is sinful form of divorce. It is the irregular mode of talaq introduced by Omeyyads in order to escape the strictness of law.Talaq-ul-biddat is a recognised form of divorce among the Hanafis. Triple repetition is not a necessary for irrevocability of effect27 Sunni Law recognises talaq-ul-biddat, though they think it to be sinful.
Shias and Malikis do not recognise this form of divorce. In order to be
Included in this form of divorce the following requirements are necessary.
- Three pronouncements made during a single tuhr either in one sentence e.g., “I thee thrice” or in separate sentences e.g., “I divorce thee, I divorce thee, I divorce
- A single pronouncement made during a tuhr clearly indicating an intention irrevocable to dissolve the marriage, e.g., “I divorce thee irrevocably”.
Under the talaq-ul-biddat, once a definite complete separation has taken place parties so separated cannot remarry without the formality of the woman marrying another man and being divorced from him. In Sarabhai v. Rabia Bai,28 it was said that talaq-ul-biddat is theologically improper. It has been maintained that this form of talaq is improper from the moral point of view. In Fazlur Rahman v. Aisha,29 the validity of this divorce was questioned. It was argued that this type of divorce is against the Quranic Law and the Court is bound not to give effect to the rule and it also opposed to a tradition of the Prophet. It was held that the Quran verses have been differently interpreted by the different Schools.
Conclusion:
In this article, the author has tried to explain all the concepts of divorce under Muslim personal law. How many forms of talaq are there, which form of talaq is banned, which form of talaq are still permitted and what are the various rules regarding to which a Muslim husband can divorce his wife. And what are the various steps available for the husband to follow while pronouncing divorce, i.e. observing tuhar period.
