What is Talaq & Classification of Talaq

This article is written by Tamanna Pasi an intern under Legal Vidhiya

ABSTRACT:

Marriage is claimed to be a pious bond between two people. But due to certain unfortunate circumstances, this bond tends to weaken and the spouse feels detached from the marriage. Here comes the concept of Divorce. Though the provision for divorce is considered a sin and evil for society, every religion in some way or another accepts the provision of divorce. In Islam, the provision for Divorce is explicitly recognized. Though it is evident that there is a disparity and inequality when it comes to the option of divorce for males and females, there are ways in which the spouse can separate from each other and the conjugal relations can cease to exist. This research article aims at analysing and mentioning the various forms of talaq as provided under Muslim law. 

KEYWORDS: Talaq, Shia, Sunni, disparity.

INTRODUCTION:

A pleasant family existence requires a solid marriage between the husband and wife. Islam mandates that marriage must endure and advises that it is best to avoid breaking the marital contract. No marriage is initially entered into with the purpose to be ended, but the matrimonial compact is destroyed in the event of unfortunate events. Divorce is one method of ending a union in this manner. According to Muslim law, a divorce may be granted through the parties’ actions or a judicial order. Divorce, though, is regarded in Islam as an exception to marital status.

The Prophet proclaimed that talaq is the worst thing that the law has allowed. It must be avoided at all costs because it is wicked. However, in some inescapable situations, this evil becomes necessary because it is preferable to allow the parties to a marriage to become estranged than to force them to live together in an environment of hostility and discontentment when they are unable to maintain their union with mutual affection and love.

Two important issues raised by the divorce provisions of Islamic law are worth examining:

1. The divorce procedure
2. The inequality of the two sexes in respect to divorce.

OBJECTIVES:

This research article aims at analysing the meaning of talaq and its classification as provided under Muslim law. It also includes a summary of the provision for talaq provided under the Dissolution of Muslim Marriage Act[1].

WHAT IS TALAQ?

The Arabic term talaq means “to release” in its literal sense. Talaq signifies the husband’s rejection of the union in terms of Islamic law. Talaq is an unusual method of divorcing given that a Muslim husband has the unfettered right to do so without providing a reasonable cause. However, it has never been the aim to give a husband unrestricted talaq power so that he can abuse it. Talaq, however, was deemed by the Prophet to be the most abhorrent by God of all the things that were allowed because it conflicted with the proper upbringing of the children and stopped marital happiness.

A husband can end their marriage by renunciation, without providing a cause. It is adequate to pronounce the words that indicate his desire to disown the wife. Generally, talaq is used to accomplish this, but there are other methods as well, such as Ila and zihar, which only vary from talaq in appearance and not in content. A woman cannot, however, decide to leave her spouse on her own. She can only get rid of her spouse if she has the authority to do so or if it is stipulated in a contract. She is only permitted to file for divorce if she is accused of infidelity, lunacy, or impotence. The Dissolution of Muslim Marriage Act, of 1939 provides for certain grounds of divorce for women by which a Muslim wife may get her divorce decree passed by the order of the court.

It was held in the case of Moonshee Buzloor Rahim v Laleefutoon Nisa[2], that “a talaq is merely an arbitrary act done by the husband who may repudiate the relation with his wife at his own will with or without cause.”

The procedure of Talaq has been arbitrary and at the will of the husband but in the case of Shamim Ara v. State of U.P.[3], the honourable Supreme Court laid down the correct procedure for Divorce.

CONDITIONS OF A VALID TALAQ:

1. Capacity: For a talaq to be valid, the husband must be a major and be of sound mind. The talaq pronounced by a person who has not attained puberty or is of unsound mind shall stand void. However, if a spouse suffers from a mental illness, the talaq he issues during a “lucid interval” is legitimate. Talaq cannot be pronounced by the guardian on behalf of a juvenile spouse. The Qazi or a court has the authority to end the marriage on behalf of a spouse who is insane and lacks a guardian.
2. Free Consent: the free consent of the husband while pronouncing talaq is an essential condition. Talaq pronounced under coercion, undue influence, compulsion, fraud etc shall not be valid.
3. Involuntary Toxication: Pronouncement of Talaq under the influence of involuntary toxication shall be void.

However, it is necessary that the husband must be of sound mind but in the case of Ma Mi v. Kallander Ammal[4], the honourable court held that the guardian of the husband can pronounce the talaq, if the husband is of unsound mind, and if doing so will be in the benefit of the husband.

It is also essential to note that “in case of Sunni Law, the presence of wife is not necessary at the time of such pronouncement”[5].

CLASSIFICATION OF DIVORCE UNDER THE MUSLIM LAW:

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DIFFERENCES BETWEEN THE FORMALITIES FOR DIVORCE IN THE CASE OF SHIA AND SUNNI SECTS:

TALAQ BY HUSBAND:

1. TALAQ-UL-SUNNAT:

The Prophet’s traditions have an impact on Talaq-ul-Sunnat, which is viewed as an acceptable type of Talaq.

It is also referred to as Talaq-ul-Raje.

It is further split into:

• Talaq-ul-Sunnat Ahasan: This is the most appropriate type of talaq. Being the most appropriate is advantageous for two reasons:

1) The declaration may be revoked before the period of iddat expires.

2) Talaq’s pernicious remarks should only be spoken aloud once. It is best if these statements are not repeated because they are wicked.

In the Ahasan Talaq, there exists a single declaration made during the time of purity, followed by three subsequent periods of purity during which the husband does not revoke it. The following requirements must be completed on this form: A solitary Talaq declaration must be made by the spouse during the Tuhr (the wife’s purity period, which is the time between two menstrual periods). As a result, the time frame during which marriage is feasible and cohabitation can be made is the Tuhr period. However, “a Talaq can be issued against a lady at any moment if she is exempt from menstruation due to old age or pregnancy”[1].

The woman is required to follow an Iddat of three-monthly courses after this one declaration. Until the infant is delivered, if she is pregnant at the moment of proclamation, the Iddat is in effect. Talaq in the Ahsan form by the spouse is revocable during the Iddat time. The withdrawal may be explicit or inferred. Inherent in cohabitation with the woman is the cancellation of the Talaq. The Talaq is cancelled and it is assumed that the husband and wife have reunited if cohabitation occurs at all during this time.

• Talaq-ul-Sunnat Hasan: This method is not recommended because it calls for repeating the wicked word “Talaq” three times in the course of three consecutive Tuhrs. The following steps are necessary for completing this form:

1) During the Tuhr time, the husband must only submit one Talaq declaration.

2) Another solitary proclamation appears in the following Tuhr for the second occasion. The first and second statements may be revoked by the spouse, which is an important point to note. The Talaq becomes useless if he does this, whether explicitly or by resuming conjugal relations again.

3) However, if neither the first nor second declarations are revoked, the spouse must then make the third proclamation during the third Tuhr. The third declaration makes the Talaq final, the marriage ends, and the woman is then obliged to follow the prescribed period of Iddat.

If the woman has reached menstrual age, it may be announced after a month or thirty days have passed between the previous pronouncements. The talaq becomes definitive and irreversible after the last utterance. Each of the three proclamations must be made after a length of time during which there has not been any sexual intercourse.

2. TALAQ-UL-BIDDAT:

The word Biddat implies evil. It is an immoral and forbidden method of divorce; it is also referred to as Talaq-ul-Bain. An irreversible Talaq is not recognized by Shia law. Sunni legislation is the only one that acknowledges it. If a Sunni spouse desires an irrevocable split from his wife, he may do so by making the pronouncement “I divorce thee” three times. The word talaq is said in a single pronouncement.

The difference between talaq-ul-Sunnat Ahasan and talaq-ul-Biddat is that the former is revocable whereas the latter is irrevocable. Ahasan requires the presence of both the husband and the wife at the same time and in the same place whereas Biddat does not require so.

It is however essential to note that Talaq-ul-Biddat has now become unconstitutional and therefore, void and illegal as held in the case of Shayara Bano v. Union of India[2]. The Supreme Court in this case held that “a husband cannot divorce his wife arbitrarily by way of Talaq-ul-Biddat and the procedure that shall be followed shall be strictly adherent to the holy Quran.”[3]

3. ILA:

It is a constructive form of divorce wherein the husband takes an oath that there shall exist no relation with his wife. Subsequently, the marriage is not consummated for a period of four months. After the expiry of the said four months, the marriage is dissolved. This form of dissolution of marriage is irrevocable. But if cohabitation is resumed between the husband and the wife, then Ila is presumed to be cancelled.

4. ZIHAR:

In this form of constructive divorce, the husband who is a major and is of sound mind compares his wife with women in prohibited relations which acts as a prohibition of the consummation of marriage.

Subsequently, if the marriage is not consummated for a period of four months, then in that case, the marriage is said to be dissolved.

After the expiry of the said period of four months, the wife has the following rights:

1. She may get  a decree of judicial divorce from the court
2. She may ask for a grant of decree of restitution of conjugal rights.

If the husband wishes to revoke Zihar, he may do so by way of performing penance and cohabitation of marriage. If he does not agree to do penance or refuses such penance, then the wife can refuse to perform any conjugal duties and therefore, the marriage shall stand dissolved.

TALAQ BY WIFE:

The grounds for divorce as provided to a wife have been well established in the case of Mohammad Kannu v. Kasim Beevi[4].

1. TALAQ-E-TALIQ

It is a conditional or contingent form of talaq. In this, the conditions are decided or are implied at the time of nikah and the pronouncement of talaq may take effect immediately or at some future time or event.

2. TALAQ-E-TAFWEEZ

In this form of talaq, the husband delegates his power to pronounce talaq to a third party or even his wife. This delegation is known as tafweez.

“The wife who is exercising her power under the agreement must establish that the conditions that were mentioned have not been fulfilled and that she is entitled to exercise this power.”[5]

These are irrevocable forms of talaq. It is to be noted here that even though the power to divorce is said to be in the hands of the wife, the substantial power lies with the husband only. This disparity and inequality between males and females are very evident in the case of talaq by the wife.

MUTUAL TALAQ:

1. KHULA

In this form of talaq, the proposal for the dissolution of marriage comes from the side of the wife. Along with the proposal, there is always some consideration. Generally, the consideration is to waive off the amount of Mahr. If the proposal is accepted by the husband, the marriage is dissolved. This concept was aptly defined in the case of Moonshee-buzlu-ul-raheem v. Lateefutoonissa[6].

If even after the promise is accepted by the husband, the consideration is not paid by the wife, the khula remains valid, however, the husband can file a suit against his wife for recovery of such money.

It is irrevocable form of talaq.

2. MUBARAT

The literal meaning of Mubarat is mutual relief. A proposal of dissolution of marriage comes from one party to the marriage and is accepted by another party. There is no consideration in this form of talaq. It is also an irrevocable form of talaq.

In the case of Jani v Mohammad Khan[7], it was held that “in Mubarat, there is a reciprocal aversion and a wish for isolation. Thus, there is a component of mutual consent involved.”

OTHER FORMS:

LIAN

In this case, the husband falsely accuses the wife of adultery. The wife has the right to dissolve the marriage but she must prove that she is not involved in adultery. Lian is also an irrevocable form of talaq. The Doctrine of Lian was recognized in the case of Zafar Hussain v. Ummat-ur-Rahman[8].

FASK

In this case, the divorce is granted based on the following grounds:

1. Impotency of husband
2. Marriage under prohibited relationship or if the marriage is irregular and the defect cannot be removed.

In K.C. Moyin v. Nafeesa[9], the Court held that “a unilateral repudiation of marriage by the wife by way of Faskh has no legal sanction and shall be void.”

ACT OF 1939

The Dissolution of Muslim Marriage Act, of 1939[10] gives grounds to wives for divorce. Section 2 of the Act provides various grounds for divorce to women. They are as follows:

1. Husband has not been heard of for the last four years.
2. Husband neglects wife or fails to maintain his wife for the last two years.
3. Husband is under imprisonment for 7 years or more.
4. He fails to perform marital obligations for a period of 3 years or more.
5. In case of impotency of husband.
6. Husband is suffering from recurrent attacks of insanity for a period of two years or more or any other venereal disease.
7. If the age of the woman was below fifteen years at the time of marriage, then she can repudiate the marriage till the age of eighteen years, provided that there is no consummation of marriage even once.
8. Cruelty by husband in the following ways:
9. Assault or cruelty
10. Husband lives with a woman of evil repute
11. Husband forces the wife into an immoral life
12. Husband disposes property forcefully or prevents wife from exercising her legal rights
13. Obstructs wife in religious profession
14. If the husband keeps more than one wife and does not provide them with equal treatment.
15. Any other reasonable ground as provided under Muslim law.

The cases with respect to the Act are as follows:

In Fazal Mahmud v. Ummatur Rahim[11], the court held that the Act was not meant to override the general law that applies to Muslims, and a spouse cannot be accused of neglecting or failing to support his wife unless, by virtue of the general law, he is required to do so.

In Yusuf v. Sowramma[12], the court held that a wife is entitled to be maintained by her husband and if the husband fails to do so, then she can be granted divorce on the said ground, the reason provided by the husband for such denial being immaterial.

In the case of Mst. Nur Bibi v. Pir Bux[13],  it was held that where the husband has failed to maintain his wife for a period of two years, wife shall be entitled to dissolution of marriage as stated under sub clause (ii) of Section 2 of the Act.

In case where the wife has been residing with her parents and there is no attempt from the side of the husband to establish any conjugal relations, the wife can claim for divorce, on the ground that the husband has failed to perform the marital obligations as held in the case of Veeran Sayvu Ravuthar v. Beevathumma[14].

In the case of Noor Jahan Bibi v. Kazim Ali[15], the court held that husband falsely accusing wife of adultery shall be a ground for wife to bring a suit of divorce as provided under sub clause (ix) of Section 2 of the Act.

CONCLUSION:

The practice of talaq though criticized by the Prophet, has been a common occurrence in the pre-modern Muslim world as compared to the Western World where the practice was relatively uncommon until modern times. It is evident that the substantial power to decide upon the issue of talaq lies with the husband and there is a conspicuous inequality between the male and the female.

Generally, it is assumed that the husband is demanding the divorce, due to which the wife is allowed to keep the child and is even provided with child support till the age of weaning when the custody of the child shall be decided upon by the court. The rights of women concerning the concept of divorce are certainly limited as compared to men. It is also to be noted that under Muslim Law, where the concept of the revocable form of talaq and the Iddat period exists, it gives ample chance to the husband to reconsider the decision which is an approach in the direction of prevention of breaking of the pious bond of marriage.

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[1] Chand Bi v. Bandesha, AIR 1960 Bom 121.

[2] Shayara Bano v. Union of India, AIR 2017 SC 4609.

[3] Ibid.

[4] Mohammad Kannu v. Kasim Beevi, AIR 1954 Trav. Cochin 219.

[5] Buffatan Bibi v. Abdul Salim, AIR 1950 Cal 304.

[6] Moonshee-buzlu-ul-raheem v. Lateefutoonissa, 8 MIA 395.

[7] Jani v Mohammad Khan, AIR 1970 J&K 154.

[8] Zafar Hussain v. Ummat-ur-Rahman, AIR 1919 All. 182.

[9] K.C. Moyin v. Nafeesa, (73) A. Ker. 176.

[10] Supra 1.

[11] Fazal Mahmud v. Ummatur Rahim, AIR 1949 Peshawar 7.

[12] Yusuf v. Sowramma, AIR 1971 Ker 261

[13] Mst. Nur Bibi v. Pir Bux, AIR 1950 Sind 8.

[14] Veeran Sayvu Ravuthar v. Beevathumma, AIR 2002 Ker. 370.

[15] Noor Jahan Bibi v. Kazim Ali, AIR 1977 Cal. 90.

[1] S. 2, The Dissolution of Muslim Marriage Act, 1939.

[2] Moonshee Buzloor Rahim v Laleefutoon Nisa, 8 MIA 397.

[3] Shamim Ara v. State of U.P., AIR 2002 SC 3551.

[4] Ma Mi v. Kallander Ammal, (1927) 54 IA 21

[5] Fulchand v. Nazib Ali, (1909) 36 Cal. 184.