Detail of DIVORCE (TALAK)

DIVORCE (TALAK)

DIVORCE (TALAK)

Modes of dissolution of marriage

By the death of husband or wife

With the death of husband or wife the marriage tie comes to an end. When the wife dies, the husband may remarry immediately, but in case of husband's death, widow has to wait till the expiry of iddat (4 months and 10 days, or if pregnant, till delivery).

By the act of parties

By the husband

     (i) Talak. - Generally, no special form or phrase is necessary to pronounce talak. The Ithna Ashari Law, however, insist on strict adherence to a form, that is, it must be in the Arabic language uttered orally, in the presence and hearing of two male witnesses, who should be honest and virtuous Muslims. Even the presence of the wife is not required. The talak would be deemed to have taken effect on the date the wife came to know of it. Communication of talak becomes necessary in certain cases, as when the wife has to observe iddat and the dower becomes payable during iddat. While the Sunnis permit oral and written-both types of talak, Shias insist on oral talak. Any words may be used and it may be given at any time. In fact, while facing proceedings for maintenance, as for example under Section 125 CrPC (old Section 488), it is a common practice for the husband to take the plea that he has pronounced talak on his wife, and the courts regard it as a conclusive fact of completed divorce.

    (a) Talak-us-Sunnat, that is, a talak which carries the approval of the Prophet. It may be in the most aprroved form, i.e., ahsan; or hasan, i.e., simply an approved form.

    Ahsan.- Where the husband repudiates his wife by a single pronouncement in a period of tuhr (purity, i.e., when the wife is free from her menstrual courses), during which he has not had intercourse with her, and then leaves her to the observance of iddat. The divorce remains revocable during the iddat, and the parties retain the right of inheritance.

   In a marriage not yet consummated, ahsan talak may be pronounced 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. This talak may be revoked either by express words, or impliedly by cohabitation within the iddat period. After the iddat period lapsing without revocation, the talak becomes final and irrevocable.

   Hasan.- In talak hasan, the husband successively pronounces divorce three times during consecutive periods of purity (tuhr), where the first and second pronouncements are revoked and followed by a third, only then talak becomes irrevocable. It is also essential that no intercourse should have taken place during that particular period of purity in which the pronouncement has been made. Where the wife is not subject to menstrual courses, an interval of 30 days is required between each successive repudiation.

   (b) Talak-ul-Biddat.- Here the husband does not follow the approved form of talak i.e., talk-us-sunnat, and neither pays any heed to the period of purity nor to the abstention from intercourse.

     Triple divorce- It is a divorce where the husband repudiates his wife by three divorces in one sentence, or where he repeats the sentence, separately, thrice within tuhr. Such a divorce is lawful but in Shia Law it is not permissible. Where the intention is clear the divorce is irrevocable. After such divorce also, like in hasan Talak, intermediary marriage is necessary for reunion. This condemned form is considered heretical because of its irrevocability. Talak-ul-biddat is most commonly practised in India and the courts have refused to derecognise it.

    The Supreme Court in Shayara Bano v. Union of India, has held by 3:2 majority that the practice of triple talaq (Talaq-e-Biddat) is unconstitutional and violative of Articles 14 of the Constitution. A significant development after the triple talaq decision is that in Sameena Begum v. Union of India, three-Judge Bench of the Supreme Court while agreeing to hear a batch of petition challenging the constitutional validity of the practices of polygamy including Nikah Halala; Nikah Mutah; and Nikah Misyar referred the matter to a Constitution Bench.

    The Central Government has promulgated an ordinance, Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands. The urgency of bringing this ordinance lies in the fact that practice of triple talaq was still continuing inspite of the fact that the Supreme Court has held in Shayara Bano v. Union of India, and other connected matters that the practice of triple talaq (talaq-e-biddat) is unconstitutional.

    One irrevocable.- The husband may say that he divorces his wife a hundred times, the talak is complete. So also if he shows his intention in writing.

    Talak- When becomes irrevocable.- (i) Talak ahsan becomes irrevocable on the completion of the period of iddat. (ii) Talak hasan comes into force on the very point when the third pronouncement is made. Iddat factor has no influence on it. (iii) Talak-ul-Biddat of both types-triple or single-also becomes irrevocable right on pronouncement. (iv) In case of unconsummated marriage talak becomes irrevocable right on pronouncement. (v) A written talak comes into effect from the moment of its execution, unless it is ambiguous.

    Effect of compulsion, intoxication or jest.- A talak given by a man under compulsion as valid, while Imam Shafii, Malik, Hanbal and Shia jurists consider it as invalid.

    Divorce given under the influence of intoxication is valid, whereas Shias do not recognise it. When a husband becomes intoxicated of his own free will, and repudiates his wife, the divorce is valid; but if he was intoxicated under a compulsion or form necessity, there is no divorce.

   Implied and contingent (talak-e-taliq) divorce.- When other words are used in its substitution, such as "I have served all relations with you", "I will have no connection with you", "you are no more my wife", etc., these words are implied forms of talak. These words would require construction with reference to intention to establish the factum of talak. In contingent talak the husband ties the effectiveness of talak to the happening of some event in future; that event not happening, the marriage is to continue. The Shias do not recognise implied and the contingent talak.

   (ii) Ila (vow of continence). -Ila is when a person swears that he will not have sexual intercourse with his wife and abstains from it for four months, the divorce is effected. Ila can be retracted by resumption of cohabitation or even by verbal retraction if actual cohabitation is not possible due to some reasons.

  (iii) Zihar (injurious comparison).- Zihar signifies a husband's comparison of his wife with his mother or any female relation within the prohibited degrees. The uttering of Zihar does not by itself dissolve the marriage; its legal effects are that sexual intercourse between them becomes unlawful till he has expiated himself by performing penance, and two, the wife can claim judicial separation or even a regular divorce if he continues to behave irresponsibly in this fashion.

By the wife

Talak-e-Tafwid (delegated divorce)

That is, the husband may delegate the power of divorce to his wife. He may do so at the time of marriage contract or any time when he so likes.

    There are three forms of tafwid. The delegation must be made in clear terms and the circumstances in which the wife (or a minor wife's guardian) is to exercise the choice must be spelt clearly. The conditions must not be opposed to public policy. The wife must exercise her option expressly, mere happening of the stipulated event would not per se result in talak. The power may be delegated at the time of nuptial agreement or during the married life. The power so delegated cannot be revoked by the husband. The wife may exercise the power to counter a suit for restitution of conjugal rights instituted by the husband, and that exercise will result in talak. In spite of the delegation the husband retains the right to talak her according to his choice.

By mutual consent

    (i) Khula (redemption).- The wife may seek a Khula divorce, e.g. by relinquishing her claim to the dower. It entirely depends upon the husband to accept the consideration of dower and to grant the divorce. A husband may similarly propose a Khula divorce which the wife may accept or refuse it. If she accepts, it means that she has relinquished the right to get dower from her husband. Khula may be for any consideration- dower, money, property, etc.

    Wife's failure to pay the consideration agreed upon in a Khula divorce only entitles him (a) to claim the release of dower, or (b) to sue for any money or property due under the agreement.

    Both husband and wife must be of sound mind and have attained puberty. Hanafis and Shafiis permit the guardian of the minor wife to enter into khula on her behalf; but not the guardian of the minor husband. The wife can retain the option to revoke the khula. In khula the consent of the husband in clear words is a must. The wife may revoke the khula before the agreement is finalised. Khula is regarded as talak-ul-bain, an irrevocable divorce.

    (ii) Mubarat (mutual freeing).- When the divorce is effected by mutual consent of the husband and wife, it is known as mubarat' at (i.e. freeing one another mutually).

   Khula and Mubarat' at are irrevocable divorce; iddat become necessary for wife, and she is entitled to maintenance.

 


                           Khula                                                                          Mubarat                                                                                                                                                            

1. Redemption of the contract of marriage                         1. Mutual release from the marital tie

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2. Offer comes from the wife, husband                              2. Any party may make the offer, the other side accepts

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3. Consideration passes from wife to husband                    3. No question of consideration

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4. Aversion is on the side of the wife                                4. Mutual aversion

 


Besides, two points of similarity are that in both iddat  is compulsory and both are irrevocable.

By judicial process

    (1) Lian (mutual imprecation).- The wife is entitled to sue for a divorce on the ground that her husband has falsely charged her with adultery. At the hearing of the suit, the husband had two alternatives: (i) he may retract (withdraw) the charge before the end of the trail, in which case the wife could not get a divorce, or (ii) to persist in his attitude, whereby he will be required to accuse his wife on oath. This is followed by oaths of innocency made by the wife. After these "mutual imprecation", the court dissolves the marriage. The husband and wife both must be sane adults; the charge must be false, i.e. one not proved to be true; the wife must file a regular suit for the dissolution of marriage making the false charge the ground for seeking divorce. Mere laying of charge by husband or mere application to the court complaining that the husband had falsely charged her of adultery would not by itself amount to divorce. Their marriage must had sahih and not fasid. When dissolved by the court, it would be an irrevocable consequence.

     (2) Faskh (judicial annulment).- Faskh refers to the power of Kazi to annual a marriage on the application of the wife. In India, such judicial annulments are governed by Section 2 of the Dissolution of Muslim Marriages Act, 1939. Section 2 of the Act lays down the following grounds on which a Muslim woman can seek divorce.

Effects of divorce

      i.      Cohabitation becomes illegal between the couple.

     ii.      Dower becomes payable to the wife.

   iii.      The husband and the wife are entitled to inherit from the other, if either of them dies during iddat following a revocable divorce. No right of inheritance arises in irrevocable divorce.

    iv.      The wife becomes entitled to maintenance during the period of iddat.

     v.      Remarriage between the couple is only possible after observing a strict procedure. Remarriage with another man can be contracted by the widow after observing iddat only.

Formalities necessary for remarriage

Where the husband has divorced his wife by three pronouncements (i.e., irrevocable divorce), remarriage with her is possible only if the following formalities are observed:

        i.    After the divorce, the wife should observe iddat.

       ii.    When the period of iddat expires, she should marry another person.

     iii.    This marriage should be actually consummated.

      iv.    The second husband should voluntarily divorce the wife.

       v.    Then the wife should observe iddat, after which remarriage with the first husband would be possible.

If remarriage takes place without fulfilling the above requirements, it is irregular but not void.

Apostacy and conversion as grounds of divorce

When a Muslim renounces or leaves Islam it is called apostacy; whereas when a non-Muslim embraces or accepts Islam, it is known as conversion.

    Apostacy and conversion may affect the marriage tie in the following circumstances:

 


                                    (i) Where husband renounces Islam.       Apostacy.

                                        .......................................................................................................

                                           (ii) Where wife renounces Islam. 

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                                           (iii) Where husband embraces Islam.      Conversion

                                        .......................................................................................................            

                                           (iv) Where wife embrace Islam.       

                                       

     (i) Where wife renounces Islam.- Section 4 of the Dissolution of Muslim Marriages Act, 1939 says that "the renunciation of Islam by a married Muslim woman ....shall not by itself operate to dissolve her marriage..." The second proviso to the same section, however, provides that this rule "shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith".

   (ii) Where husband embraces Islam.- Islam has to be offered to such a wife, if she refuses to embrace it, divorce may be given. This offer shall be made by the husband and the law court has nothing to do with it.

  (iii) Where wife embraces Islam.- If a non-Muslim wife, whether she is Hindu, Christian, Jew or an Irani Zoroastrian embraces Islam, her marriage tie stands intact, irrespective of the fact that the husband is non-Muslim.

   Use of conversion to elude criminal liability for bigamy.- Conversion by either husband or wife would not dissolve the marriage prior to conversion. A second marriage by a Hindu or Christian husband on embracing Islam during the lifetime of the earlier (first) wife would constitute an offence under Section 494 of the Indian Penal Code. At the same time the apostate would have a right to pray for the dissolution of the first marriage in stipulated circumstances and under specified conditions.