The dissolution of Muslim marriage may be done in any one of the following ways: a) By the death of spouse, or b) By the act of the parties; or c) By the judicial process. Divorce by the act of the parties is further classified into a) By the act of husband and b) By the act of wife. The husband can dissolve the marriage by a) Divorce, or b) Zihar, or c) ila.
The word talaq means the husband’s will to dissolve the marriage. Talaq means freedom from the ties of marriage or dissolution of marriage by husband in accordance with the law. Islamic divorce laws recognize a man’s absolute right to give divorce to his wife. According to Islamic Law, any husband who is of sound mind and has attained puberty may divorce his wife whenever he desires, without assigning any reason, at his mere whim or caprice. Talaq may be oral or written. The words of pronouncement of Talaq must be very clear, unambiguous, express, and referring to wife. In both the cases oral or written, it is recommended for there to be two witnesses present on the occasion of the pronouncement of such a divorce. In absence of any witness, it is at the complete will of the husband. In absence of the wife, the husband can pronounce the Talaq before two witnesses, or before family council. A talaq given by a husband under compulsion or in jest or in a state of voluntary intoxication is valid in Sunnis. Shia school does not recognize a talaq given by a husband under compulsion or in jest or in a state of voluntary intoxication. Until the talaq becomes irrevocable, the husband has the authority to revoke it.
Conditions of Valid Talaq:
Capacity:
Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce Talaq. It is not necessary for him to give any reason for his pronouncement. This absolute right is given to him by Muslim law itself and does not depend on’ any condition or cause. A husband who is minor or is of unsound mind cannot pronounce Talaq. The guardian cannot pronounce Talaq on behalf of a minor husband. When insane husband has no guardian, the Kazi or a Judge has right to dissolve the marriage in the interest of such husband.
Free Consent:
The Hanafi law of talaq is that a divorce pronounced under compulsion, or in a state of voluntary intoxication, or to satisfy or please one’s father or some other person, or in jest, is valid. Ameer Ali observes that for the validity of a talak pronounce under compulsion, three conditions are necessary:
- the compeller must be in a position to do what he threatens to;
- three is a strong possibility of threat being carried out; and
- the threat involves some imminent and serious danger to the man.
Under the Shia law (and also under schools other than Hanafi School) a Talaq pronounced under compulsion, coercion, undue influence, fraud or voluntary intoxication is void and ineffective
In Rashid Ahmed v. Anisa Khatoon, (1932) 34 Bom L.R. 375 case, where a husband gave triple talaq to his wife under compulsion of his father. After Talaq the wife and the husband lived together and five children were born to them. The man acknowledged the children as his children. After the death of the man, the collateral heirs raised the dispute that the children of deceased are illegitimate and were not entitled to get share in the property. The children prayed to the Court to presume the marriage of their parents trough their conduct and thus they were legitimate children and also asked to acknowledge their legitimacy. The privy council held that the pronounce talaq by the deceased was valid. Thus, the children could not be treated as legitimate. It held that the divorce by the husband created a bar in this case. The bar can only be removed by providing that their mother had after the divorce married another man and the latter had died or divorced her after actual consummation of the marriage, and married the former husband. As these conditions are not proved, remarriage between them cannot be presumes, and the children could not be held to be legitimate, and their claim must fail.
Formalities:
According to Sunni Law a Talaq may be oral or in writing. Talaq may be simply uttered by the husband or he may write a Talaqnama. 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.
Express Words:
The words of Talaq must clearly indicate the husband’s intention to dissolve the marriage. Therefore, the pronouncement must be express. If the pronouncement is not express and is ambiguous and confusing then it is necessary to prove that husband actually intends to dissolve the marriage. If the words of Talaq are not express, it is duty of the Court to lay emphasis upon the intention of the husband rather than to rely upon the apparent words.
Presence of Wife:
Presence of wife at the time of pronouncement of Talaq is not necessary. A Talaq pronounced in the absence of the wife is lawful and effective. But the wife must be specifically referred in the pronouncement. Where a husband has more than one wife, he must specify and name the wife against whom he is pronouncing Talaq.
Communication of Talaq:
For the validity of Talaq, its notice to wife is not necessary. It is not necessary for the husband to communicate to wife the pronouncement immediately. The Talaq becomes effective from the moment of its pronouncement and not from the date on which the wife comes to know about it. However, knowledge of Talaq is required for the claim of dower and for the claim ofmaintenance from former husband
Conditional and Contingent Talaq:
A Talaq may either be absolute (i.e., unconditional) or subject to a condition or contingency. An uncertain future event is called contingency: where the Talaq is without any condition it takes effect immediately. A conditional or contingent Talaq becomes effective only upon the fulfillment of the condition (must not be un-islamic) or happening of the future event. Conditional and contingent Talaq is recognized only under Sunni law; Shia law does not recognize conditional or contingent Talaq.
In Bachchoo v. Bismillah, (1936) All LJ 302 case, the husband promised, in writing, to pay a maintenance allowance to the wife for certain period. On failure of the husband to do so, the writing was to operate as Talaqnama. It was held by the Allahabad High Court that it was a conditional Talaq. The condition was non-payment of maintenance allowance to the wife the condition was fulfilled. Thus, the Talaq became effective without any further pronouncement.
Kinds of Talaq:
There are various forms of talaq, they are as follows:
Talaq-ul-Sunnat or Talaq-ul-raje:
It is one of the most approved forms of Talaq as it confirms the traditions of Prophet. It is revocable. It is called Talaq-ul-Sunnat because it is used on the Prophet’s tradition (Sunna). As a matter of fact, the Prophet always considered Talaq as an evil. If at all this evil was to take place, the best formula was one in which there was possibility of revoking the effects of this evil. With this idea in mind, the Prophet recommended only revocable Talaq, because in this form, the evil consequences of Talaq do not become final at once. There is possibility of compromise and reconciliation between husband and wife. This mode of Talaq is recognized both by Sunnis as well as by the Shia.
It is further sub-divided into two types:
Talaq-e-ahasan (Most Proper):
It can be defined as a single pronouncement of Talaq in the period of ‘tuhr’ or purity (i.e., when the wife is free from her menstrual courses). It is followed by the abstinence from any sexual relationship during the period of tuhr and whole of the Iddat period. Iddat is the period during which a wife is prohibited from re-marrying after the dissolution of the first marriage. Talaq-e-Ahsan is considered as the most approved form of Talaq as it is revocable during the period of Iddat. The husband may revoke the Talaq by express words or by conduct including the resumption of Sexual intercourse. Thus, Talaq by this method becomes irrevocable and complete after expiration of the period of iddat.
In Chand Bibi v. Bandesha, AIR 1960 Bom 121 case, the Court held that if a marriage is not yet consummated, Talaq-e-ahsan and Talaq-e-hasan may be pronouncement during menstruation also. Where the wife and husband are living separate from each other, or where the wife is beyond the age of menstruation (i.e.in old age), the condition of tuhr is not applicable, it is also not applicable to a written divorce. Court further held that if a woman is not subjected to menstruation, either because of old age or due to pregnancy, a Talaq against her may be pronounced any time.
It may be noted that the characteristic feature of the Ahsan form of Talaq is a single pronouncement followed by no revocation during the period of three month’s Iddat. Therefore, where a husband makes any declaration in anger, but realizing his mistake afterwards, wants to cancel it, there is sufficient time for him to do so. Single pronouncement of the civil words of Talaq and sufficient opportunity to the spouses for reconciliation, are the two reasons for calling form as the ‘most proper’ form of Talaq.
Talaq-e-hasan (Proper): Talaq Hasan is also considered as an approved form of Talaq but comparatively less than Talaq-e-ahasan. It consists of three successive pronouncements of Talaq which are made by the husband during three consecutive periods of Tuhr (purity). During each Tuhr period, no sexual intercourse must have taken place else the pronouncement made during that period shall not be considered as valid.
In a case where the wife has crossed the age of menstruation, the three pronouncements have to be made at successive intervals of 30 days. When the last pronouncement has been made, the Talaq becomes final and irrevocable. Thus Talaq by this method becomes irrevocable and complete on the third pronouncement irrespective of iddat.
Talaq-e-biddat or Talaq-e-badai:
It is the disapproved form of Talaq. In Talaq-e-biddat, pronouncement of Talaq was done by saying Talaq three times in a row. Nowadays, it is known as “Triple Talaq”. It is irrevocable. The only way to reconcile the marriage is through the practice of nikah halala, which requires the woman to get remarried, consummate the second marriage, get divorced, observe the three-month Iddat period and return to her husband. Thus Talaq by this method becomes irrevocable and complete immediately irrespective of iddat. Under the Shia law, an irrevocable Talaq is not recognized
In the recent judgement of Shayara Bano v. Union Of India case, the Supreme Court of India declared that the practice of triple talaq is unconstitutional, as this form of Talaq is violative of the fundamental right provided under Article 14 of the Constitution of India.
Talaq-e-Bain:
Under Shia law, the Talaq must be pronounced orally except where husband is unable to speak. But, under Sunni law the Talaq may be oral or in writing. It is a talaq in writing and irrevocable. It takes immediate effect on its execution. It is to be registered with a Kazi and the divorce operates from the date of such Talaq. it becomes irrevocable as soon as the Talaq is written. But where the writing itself indicates any specific date or event on which the Talaq shall come into force, the Talaq becomes effective from that very date or upon happening of the specified event and not on the date when the letter reaches to wife.
Conclusion:
The word talaq means the husband’s will to dissolve the marriage. Islamic divorce laws recognize a man’s absolute right to give divorce to his wife. According to Islamic Law, any husband who is of sound mind and has attained puberty may divorce his wife whenever he desires, without assigning any reason, at his mere whim or caprice. Talaq may be oral or written. The words of pronouncement of Talaq must be very clear, unambiguous, express, and referring to wife.. A talaq given by a husband under compulsion or in jest or in a state of voluntary intoxication is valid in Sunnis. Shia school does not recognise a talaq given by a husband under compulsion or in jest or in a state of voluntary intoxication. Until the talaq becomes irrevocable, the husband has the authority to revoke it.