This article “How to Give Talaq to Your Muslim Wife-Complete Legal Guide” is written by Anubhav Pandey.

Marriage under the Muslim Law (Nikah) is a civil contract entered into between two people of opposite sexes with a view toaremutual enjoyment and legalization of children.

Muslim marriages can be classified into three categories-

•  Sahil i.e. a valid marriage being in conformity with all the rules, mandatory and directory of marriage, under the Muslim law.
•  Batil i.e. a void marriage, the prohibition against which is perpetual and absolute.

E.g. Marriage between two people standing in prohibited degree of relationship. E.g. marriage with one’s siblings.

•  Fasid i.e., irregular marriage which is not per se unlawful but, unlawful in its attributes. Marriage without a witness.

But, what if they now demand Talaq?

Talaq

This is the arbitrary and uncontrolled unilateral extra-judicial exercise of power of divorce by the Muslim husband, by the pronouncement of talaq, which may be effected orally or in writing. There are two kinds of Talaq-

1. Talaq-Us-Sunat
2. Talaq-Ul-Bidah

• Talaq-Us-Sunat

It refers to Talaq according to the sunna- the precepts and practices of the Prophet of God.

Talaq-Us-Sunat covers-

1. Talaq-Ahsan
2. Talaq Hasan

• Talaq-Ahsan

Talaq-Ahsan is the best form under which the wife is divorced by the husband by a single pronouncement of talaq during ‘Tuhar’ (period between two menstruation), during which the husband should have had no sexual intercourse with the wife, followed by abstinence from sex with the wife during the period of iddat.

This form of talaq becomes irrevocable on the expiry of the period of iddat.

Such a talaq can be revoked before it becomes irrevocable either- expressly or impliedly by resumption of cohabitation.

• Talaq-Hasan

Talaq Hasan is the second best form which consists of three pronouncements- one during each of the three successive Tuhars.

This form of talaq becomes irrevocable on the third pronouncement and can be revoked prior thereto -expressly or impliedly- by withholding the second or the third pronouncement or by resuming sex.

• Talaq-Ul-Biddat or Talaq-i-Badi

This form consists of-

1. A single pronouncement during tuhar indicating in clear and unequivocal terms the intention of the husband to dissolve the marriage irrevocably.  e.g., “I divorce you (talaq)”,
2. Three pronouncements at once during tuhar in one sentence in triple form or three separate sentences repeatedly. e.g. “Talaq, Talaq, Talaq”.

This legally valid but theologically bad form of talaq takes effect immediately and becomes irrevocable.

Unfortunately, it is either of these two forms of Talaq-Ul-Biddat that is widely prevalent in India, despite the dictum of the Messenger of God that of all things allowed by law, talaq is the most detestable.

Procedure To Give Talaq

• Divorce is not to be given during the time of menstrual cycle as it is prohibited by Hadith and the husband should not establish a sexual relationship during the period.

The reason behind this is that during the menstrual period men are not interested in their wife.

• Only one divorce is to be given under the Muslim Sharia law, that is to say- it must be clearly stated and understandable that the divorce is singular.

No numbers is to be added to the divorce. A person can say, ‘I divorce you’ or simply ‘talaq’.

• Divorce is to be given in presence of two just witnesses.
• After the divorce, the women has to pass her term of Iddat.

It is the duty of the husband that he should not turn her wife out and should provide her with sufficient maintenance.

During this period both the wife and the husband cannot remarry.

• The term for Iddat is three menstrual period, i.e. to say 3 months.
• If the wife is not menstruating then, the period of Iddat is to be of three lunar months.
• If the wife is pregnant then the period of Iddat is till she delivers her child.

During the time of Iddat, husband can return to her wife and recall his divorce but, this is to be done keeping two just man as a witness.

If husband does not revokes his divorce within the period of Iddat, this will be considered as one revocable divorce.

If after this period the man still wants her ex-wife back, they will have to re-marry.

Second Divorce By Muslim Men

However, if the ex-husband and ex-wife reunites after their first divorce but, still their relation is not as smooth and is strangled, the husband can yet again divorce his wife as stated according to the above procedure.

Again, wife will have to go through her period of Iddat and same procedure will have to be followed.

Yet again, if the husband and wife thinks fit they can again remarry after the period of Iddat is over.

Third Divorce By Muslim Men

Third divorce is to be given under a careful consideration.

After the second divorce, divorced couple may remarry but, this is going to be their last chance to establish conjugal relations.

After third divorce is pronounced, nor can he re-marry after the passing of the period of waiting, unless the woman has re-married and has been divorced by the second husband.

This is called Talaq-i-mughallazah Bainah.

Women cannot even after pronouncement of third divorce, remarry her ex-husband, until and unless, she is married with another man.

Divorce Given By Men Through Triple Talaq

This method of giving divorce is against the Sunnah.

Therefore, such divorces are called the ‘divorce of bidat’.

What is the effect of pronouncing three divorces at once and at the same time? Will it be counted as three divorces or only one?

There are differences of opinion among the ulema (scholars) on this point, therefore, safety lies in not pronouncing three divorces at once and at the same time.[1]

The Supreme Court, regarding the right of a husband to unequivocally divorce his wife (triple talaq) has laid down that such a divorce, if contested by wife, will not be valid if-

1. It was not given for a reasonable cause.
2. There was no attempt for reconciliation between the parties.[2]

The practice of triple talaq was challenged as early as 13th century by Hannibal scholars who mooted to consider triple talaq as one.[3]

Till now, there is a great difference of opinions regarding triple talaq as a mode of divorce and it’s not a settled law.

Generally, people being ignorant of the commands of the Shariah and being carried away by their emotion, pronounce talaq and regret later.

Requirement For Pronouncing Talaq By Muslim Men

There are certain criterion to be fulfilled in order to pronounce talaq. This requirement is further different according to different Muslim school of thoughts.

Shia – He must be of sound mind and must have attained the age of puberty.

It must be pronounced orally in the presence of two witnesses, unless he is unable to speak. Further, Talaq pronounced under coercion is void. It must be spoken in Arabic terms and strictly in accordance to sunnah.

 Sunni – In Sunni, only two requirements are needed, i.e.-

1. The husband pronouncing divorce must be of sound mind.
2. He has attained majority.

A Talaq pronounced under compulsion or intoxication is ineffective.

Re-marriage After Pronouncement Of Divorce

Under the Muslim law, where the dissolution of Muslim marriage is brought about by a single pronouncement of talaq, there is no prohibition on the re-marriage of the couple.

This rule covers Talaq-Ahsan and one of the two modes of Talaq-Ul-Biddat.

But, where a marriage is dissolved by pronouncement of three talaqs, re-marriage of the couple is not lawful unless the divorced wife undergoes an intermediate marriage with another man and is divorced by him after actual consummation.

This abominable condition was said to be intended as a check on the capricious exercise of power of divorce by the husband and to arrest the repeated divorces and remarriages which were so frequent in the Arab Society at the time of Prophet’s advent and as opposed to the interest of public morality.[4]

Suggestive Read: Discriminatory Muslim Laws Against Women

Ilah
This is a form of constructive divorce in which the husband swears by God not to have sexual intercourse with his wife for a period of not less than 4 months and abstains therefrom during the said period.

Such a form of divorce can be revoked before the expiry of 4 months by express of words or impliedly by resumption of cohabitation.

Re-marriage: There is no legal bar for the re-marriage of the couple whose marriage is dissolved by Ilah.

Zihar
This is a mode in which the husband compares his wife to his mother or any other female, within prohibited degree, giving the right to the wife to refuse herself to her husband, until he makes an expiation, and in default to apply for a judicial divorce from the Qazi.

This form of divorce is unknown in India and no case of Zihar has come before Courts in India.
Re-marriage- There seems to be no legal prohibition for re-marriage of the couple whose marital tie is dissolved by Zihar.

Mubarat
Dissolution of  Marriage under this form is by consent. In Mubarat the initiation of divorce comes from husband’s side.

What are your views about Muslim Laws to give Talaq? Do you think they’re based on legal grounds? Drop your views in the comments box below.

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References:

[1] http://www.islamawareness.net/Talaq/talaq_book.html
[2] Shamim Ara v. State of Uttar Pradesh, (2002) 7 SCC 518
[3] K, Kannan, http://www.thehindu.com/opinion/lead/Frames-of-reference/article16077807.ece?css=print
[4] Justice S.A. Kader, (2004) 1 LW (JS) 41

Dissolution of Muslim Marriage and Remarriage of the Divorced Couple