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Talaq : all you need to know

October 30, 2023

2224

This article was written by Mohammed Zafari, pursuing a Diploma in Corporate Litigation from LawSikho and edited by Koushik Chittella.

It has been published by Rachit Garg.

Introduction

Before we discuss the concept of talaq, we need to first understand what a marriage under Muslim law is. Nikah is an Arabic word that means “to unite”. According to the Hans Wehr dictionary of modern Arabic, it defines “nikah” as a marriage, marriage contract, or wedlock. The origin of Nikah is quite famous. In ancient times, nikah took place against the will of either marrying parties, but it changed as time progressed.

If a Muslim male wants to marry, the consent of the bride is mandatory. It is done in the presence of two male witnesses. If this is not done, the nikah is considered void. Nikah is nothing but a religious ceremony that is made to unite the Muslim man and woman in holy matrimony, i.e., it is otherwise meant to make that marriage contract official through that Nikah ceremony. The nature of marriage under Muslim law is the same as a civil contract. It was observed by the Court in the case of Abdul Kadir vs. Salima (1866).

Sunni and Shia Muslims

Sunni Muslims constitute more than 80% of the Muslim population, and they follow Sunni law. They hold a strong belief in Allah and his prophet; they believe that the prophet is the messenger of God; belief is mandatorily required to enter paradise. Whereas Shia Muslims constitute the other 10-20% of the Muslim population. Shia Muslims believe that the Prophet publicly designated Hazrat Ali, his son-in-law and cousin, to lead the community after him, but Sunni Muslims do not accept this claim. In contrast, Sunnis maintain that the Prophet did not appoint any successor whatsoever and that the Muslim community had the right to elect its leader. This disagreement led to a schism between the two branches of Islam that persists to this day.

Conditions for a valid Muslim marriage

There are some conditions for a valid Muslim marriage; they are:

Capacity to Marry
Ijab (Offer) and Qubul (Acceptance)
Consent
Mehr
It should not amount to unlawful conjunction, i.e., via consanguinity (marrying blood relations like mother, daughter, grandmother, etc.), fosterage, or affinity.

Another condition that might affect the validity of the marriage is the case of marrying a woman who is undergoing iddat.

What is Talaq

Talaq is an Arabic word that means freeing or undoing a knot (which was tied during marriage). Whereas, in the eyes of the law and the jurists, it is a dissolution of marriage or the cancellation of its legality by pronouncing the word “Talaq” to his wife. Talaq was considered sinful in Islam. Allah encourages the marriage and discourages the discontinuation of the marriage. The Quran provided for “Talaq” as a remedy for the dissolution of marriage.

Who can pronounce Talaq

Only a husband can pronounce talaq, and the wife cannot pronounce it to her husband. If the wife wants to get separated from her husband, she has to follow the other modes of talaq instituted by the wife.

Conditions for a valid Talaq

There are two conditions required for talaq, i.e., capacity and free consent.

Capacity

Every Muslim who has attained the age of puberty is competent to pronounce talaq. If the husband is of unsound mind, then his guardian (who should be of sound mind) on behalf of him can pronounce Talaq. If the husband doesn’t have a guardian, Qazi or the judge has the right to dissolve the marriage in the interest of the husband.

Free consent

Except for Hanafi law, all other laws require the husband who is giving talaq to have free consent. Under Hanafi law, the husband can pronounce talaq under compulsion, coercion, undue influence, voluntary intoxication, etc., which is valid, and it can dissolve the marriage if talaq is pronounced under any of these conditions.

What is Iddat

Iddat/ Idda is an Arabic word meaning a period of waiting that falls under the purview of a wife alone. Here, the wife has to wait for a specified period before she remarries. It is of three types. They are:

Iddat in the case of talaq: In case of talaq, a mandatory period of 3 lunar months or 3 menstrual cycles has to be followed by the wife, where she can’t remarry or have a sexual relationship with other Muslim men.
Iddat in the case of the death of the husband: In case of death of the husband, the period of iddat is 4 lunar months and 10 days.
Iddat in the case of pregnancy: In the case of pregnancy, the iddat period has to be observed until she delivers the child.

Why is Iddat important

The reason behind women observing the Iddat period after every talaq is to ascertain whether the woman is pregnant, to check the certainty of paternity, and to avoid confusion about the parentage. The Iddat period also serves as an important aspect of property division and inheritance. If the wife is pregnant at the time of talaq, the child is considered to be the child of the former husband, hence having a right to inherit property from his or her father. If the wife is not pregnant, the property division is finalised at the end of the Iddat period, and the parties are no longer considered husband and wife.

Types of Talaq

Muslim law provides for different types of talaq. A dissolution of marriage can be done by the pronouncement of talaq by the husband or wife, through mutual consent, or through legal procedure.

Talaq by the husband

Talaq-ul-Sunnat

This form of talaq is considered to be the most acceptable form of talaq because the divorce doesn’t become final when talaq is pronounced, and there is always a possibility to compromise and reunite. This form of talaq is recognized by both Sunnis and Shias. This talaq is further classified into two types:

i)Talaq-e-Ahsan

ii)Talaq-e-Hasan

Let’s understand both of these types.

Talaq-e-Ahsan

In this form of talaq, the husband pronounces talaq to the wife once—a single pronouncement. Once the talaq is pronounced, a period of abstinence, or the period of iddat, has to be followed by the wife. A period of iddat is 90 days (3 months). If consummation (sexual intercourse) takes place during this period, it is implied that the talaq or divorce is revoked. But if no consummation takes place since talaq is pronounced, the marriage is dissolved, and the talaq cannot be revoked or becomes irrevocable.

Talaq-e-hasan

In this form of talaq, the husband pronounces talaq to his wife in three turns, i.e., three times, with a specified time gap of one month between the pronouncements. Thus, the duration of these three consecutive pronouncements is called the period of abstinence (iddat). If consummation or sexual intercourse happens during the period of abstinence or during the period of iddat, the talaq becomes void. This type of talaq is called the best practise of talaq as it doesn’t become final at once or in a single go but extends to a longer period, giving the couple a chance to revoke the divorce and live together again.

Talaq-e-Biddat

Unlike talaw-ul-sunnat, this form of talaq is entirely different. It is popularly known as triple talaq. Here, the talaq is pronounced three times in a single go, at once, or in a single breath, which is irrevocable. The Apex Court banned the practise of triple talaq in the case of Shayara Bano vs. Union of India (2017).

After the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, Section 3 of the Act declared the pronouncement of triple talaq, or talaq-e-biddat in words or in any other manner as illegal. The punishment for the same is mentioned as imprisonment for a period that can be extended up to 3 years and shall be liable to a fine.

Ila

Under this form of divorce, the husband declares that he will not have sexual intercourse with his wife. The wife observes iddat, and if the husband cohabits with the wife after such a pronouncement, Ila stands revoked. Once the period of iddat is over, the divorce becomes irrevocable.

Zihar

If the husband compares his wife with the prohibited relationship of his family, i.e., comparing his wife with his mother or sister and telling her that you are like my mother or sister, if he utters these words/comparisons to his wife, he frees her. This type of divorce is no longer in practise. He can cohabit with her within the 4 months period, provided he observes fasting for 2 months or provides food for at least sixty people.

Talaq by mutual consent

Divorce through mutual consent is done in the following ways:

Mubarat

There are many ways of divorce followed in many religions. Mubarat is a practise where the divorce is mutually agreed upon by the parties. Either of the parties can initiate this type of divorce. Here, one party has to propose the will of divorce, and the other has to accept it. After which, the wife has to observe iddat, which is 3 lunar months.

Khula

Khula is an Arabic word that literally means to “put off a thing or to take off clothes”. It is believed that spouses are like clothes to each other. When Khula is pronounced, it means to get rid of each other. Thus, the word itself can relate to the marital life to put off. It is a divorce initiated by the wife. She pays the consideration amount to her husband, and the husband must accept that consideration to make Khula valid. The consideration can be anything, including the paying back of the mehr (the amount paid to the bride by the groom during marriage). When the husband accepts the khula, it becomes irrevocable.

FAQs about Khula

What happens if Khula is not accepted by her husband?

In this case, the wife has to approach the court for judicial separation

What is the difference between Khula and Mubarat?

In the case of Shahadabi M. Isak v. Abdul Ajij Abdul Latif (1996), the Court gave a clear distinction between Khula and Mubarat, as “a mubarat divorce like Khula is a dissolution of marriage by agreement, but there is a difference between the origin of the two. When the aversion is on the side of the wife and she desires a separation, the transaction is called Khula. When the aversion is mutual and both sides desire a separation, the transaction is called mubarat. The offer in a mubarat divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted, the dissolution is incomplete (sic) and it operates as a talak-i-bain as in the case of Khula”.

Talaq by the wife

A Muslim wife can institute a divorce via talaq-e-tafweez.

Talaq-E-Tafweez

The word Tafweez here means “delegated”. The wife, through the delegated powers given by the husband, pronounces talaq to herself. The husband here delegates the power to either his wife or any third person to talaq if he doesn’t fulfil the promise made to his wife. Even if the husband delegated the power to others before, he wouldn’t lose his power to talaq his wife from his side. The most popular type of talaq-e-tafweez is “Ikhtiyar”, where the husband delegates the authority of pronouncing talaq to the wife.

Talaq by judicial decree

Lian

If the husband makes false charges of adultery against his wife, the wife has the right to seek divorce on the basis of this false allegation. If the wife hurts the husband’s feelings and the husband hits her back with allegations of infidelity against her, it cannot be used as a ground for divorce by the wife because it’s a meagre exchange of words between them. This was held in the case of Nurjahan Bibi vs. Md. Kazim Al (1976).

Faskh

Faskh means cancellation or annulment. According to this, when the wife needs to dissolve her marriage, she can approach Qazi and plead for the dissolution of marriage, which falls under the doctrine of faskh. Earlier, before the Dissolution of Muslim Marriages Act, 1939, came into force, only Sharia laws were available for Muslim women to plead for the dissolution of the marriage. So, she used to approach a third person called Qazi. As of now, Muslim women can dissolve or end their marriage through four modes:

Talaq-e-tafweez
Khula
Mubarat
Faskh

Grounds for divorce under Dissolution of Muslim Marriages Act, 1939

Under Section 2 of this Act, the grounds for divorce available to the wife are:

Failure to maintain the wife for a period of two years
Unheard or the whereabouts are unknown for four years.
The husband is sentenced to imprisonment for seven years or more.
The husband is impotent.
The husband has failed to perform marital obligations for a period of three years or more.
The marriage was solemnised before she attained the age of fifteen.
The husband has treated her with cruelty.
The husband is suffering from a venereal disease or has turned insane.

Conclusion

Thus, these are the types of talaq and the rules and explanations related to them. The main objective of talaq is to find the most possible ways for the husband and wife to live together, not to end their married life. It gives ample time for the couple to resolve the matter. There is a saying, “Time will answer everything, and time is the best solution to solve the problem.”

References

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