Written By- Afwan Sayyed
Introduction
Marriage is a sacred institution practiced in societies from as far as we can trace back in history. However this sacred institution is sometimes broken due to many reasons.
Just like marriages are performed in various societies and religions in different forms, the modes of divorce also vary from religion to religion. Divorce being the subject, Muslim Law has always been a matter of debate among different classes of peoples.
In this article we shall dwell into the modes, types, performance and grounds of ‘talaq’ in Sunnis and Shias.
The origin of Talaq in Islam
Talaq in its literal sense means “taking of any tie or restraint”. The origin of all the matters relating to Islam have their root sources form the prophet and his companions. The traditions practiced by the prophet and his companions at his time are considered to be the most authentic and rightful amongst the Muslims.
The prophet himself practiced polygamy, however he never gave talaq to any of his wives. Furthermore, talaq as a practice is lawful but disliked by Allah.
In one of the hadeeths is also mentioned that:
Furthermore, in some other authentic books of Islamic law also mentions:
Talaq is mentioned in the Holy Quran and its procedure is known to us by the guidelines prescribed by the prophet himself and how his companions applied them.
Sources of Muslim Law
The rules regarding Muslim laws are mostly drawn from:
Types of Talaq:
Broadly talaq can be divided into 4 types
Talaq by the husband at his will:
Talaq gives the husband the absolute right of repudiation of his wife by law. A sound person who has attained the age of puberty and is an adult is capable of giving effect to talaq.Intention is the main aspect that matters while initiating a talaq.
There is no stipulated procedure for effecting talaq, however the talaq must be pronounced in presence of two witnesses to give effect under Sunni Law.
A Talaq pronounced by a man when he is under the influence of some intoxicants held valid in Sunni Law. However, the intoxication must not be forcefully administered against his free will or for any other purposes (medicinally).
In Sunni Law, talaq may be pronounced by words or expressly, and hence a talaq can be expressed, implied, constructive or delegated.
In Shia Law, there are certain stipulated essential that are required to determine the capacity while giving effect to talaq.
They are as follows:
As mentioned above, a talaq made under any the influence of any intoxicants will be held invalid as intention is absent. Accordingly, a husband who is by force made to give talaq under compulsion will be ineffective and invalid.
The modes recognised under Shia Law that are held valid are expressed and delegated talaq only.
Sunni Hanafi Law differs in many aspects from the Sunni and Shia Laws with respect to the rulings of talaq.
For instance,
are all held to be valid and will give legitimate effect to the talaq initiated.
Intention has no regard whatsoever in this school of thought and words uttered once are binding even they are not spoken out of free will. Moreover, the presence of wife is also not required for a valid talaq in Hanafi Sunni Law.
Modes of giving talaq by Husband
Talaq-ul-Sunnat:
Talaq-ul-sunnat is the most authentic mode of divorce that a husband can give effect to. Talaq-ul-sunnat is further sub divided into 2 forms on the basis of uttering the words that give effect to talaq.
*Before proceeding further, ‘TUHR’ is the period when a female is not in her menstrual cycle, or the period between two menstrual cycles.
Talaq Ahsan:-
Process:-
Revocation:
Importance of Talaq Ahsan
Talaq Hasan:
Process:
Revocation:
Importance:
Talaq-ul-biddat (Irrevocable):
This form of talaq is not authentic as per many schools of thoughts and is only held valid by the Hanafi School of thought.
In this mode of talaq, the women is not required to be in a state of purity and a talaq can be initiated even when she is in the period of menstruation i.e. regardless of whether she is in the state of tuhr or not. Furthermore, not abstaining from sexual intercourse after the last menstrual cycle is also of no regard while initiating a talaq.
Talaq-ul-biddat is further effected by 2 modes:
Talaq-i-Tafwid/Talaq-i-Tafweez (Delegated Talaq):
This form of Talaq is recognized by both, the Sunnis and the Shias. The husband can choose to delegate the authority to initiate the talaq to either to
This delegated authority can be
An absolute authority will result in an irrevocable divorce whereas a temporary authority is revocable. The agreement for delegated authority can either be made before or after the marriage, and the divorce will be held valid given that the pre requisites provided in the agreement are reasonable and not against any public policy.
If the agreement is based on a contingency, and the provided happening has occurred, then on such an event, the power to exercise the authority will be left entirely on the decision of the wife, if she wants to choose to exercise or not. The happening of the event does not automatically dissolve the marriage.
Divorce by wife:
Khula:-
Khula is the dissolving of marriage at the instance of wife. The wife proposes the offer to the husband to free her from the marital tie in exchange for
The aversion is primarily from the wife’s side in Khula.
This from of divorce is accepted even when given under coercion or under voluntary intoxication by the Sunni, Hanafi schools of thought. However, no effect will take place if it is given by an insane person.
Divorce by mutual consent:-
Mubarat:-
In this form the divorce is wanted from both the sides.
When both the husband and wife cannot live together, they can apply for mutual divorce (Mubarat).
Process:
The wife has to observe the period of iddat, to give effect to a successful talaq.
The husband pays maintenance to the wife during the period of iddat.
Importance:
The aversion is from both the sides in Mubarat, whereas in Khula, the aversion has to be from the wife’s side.
India Shariat Act, 1937
The Indian Shariat Act provides for 3 modes for the dissolution of marriage as follows:
Ila:-
In this case, the husband taken an oath saying that “I will not have sexual intercourse with my wife for so and so period” and furthers continues to fulfil the oath taken to give effect to the divorce by this form. After the husband has abstained himself from engaging in any sexual activity from his wife, the marriage will stand dissolved irrevocably.
However, the talaq can be revoked if the husband and wife engage in sexual intercourse during the period for which the oath was taken.
Zihar:-
Zihar is also called as inchoate or unclear divorce.
In Zihar, the husband compares his wife with someone who is in the prohibited degrees with him, for examples his relations in affinity, fosterage or consanguinity. (mother, sister, other women coming under the ambit of prohibited degree)
Once the husband has done the act of comparison
The wife may then
Refuse herself from him until he has made proper revocation by doing
The wife will also inherit a right to apply to court to make the husband give her a proper divorce or to make him do the abovementioned acts as an act of apology.
In case the husband fails to perform the prescribed acts, the woman can get judicial remedy.
Lian:-
Lian mean imprecations or curse. It is when the husband accuses his wife of committing adultery. The wife is eligible and can take the matter to the court on the contention that the husband has falsely charged her with the immoral acts of adultery.
The husband should be capable of making a sound desi scion and should be an adult. It should be observed that mere accusation of adultery will not automatically dissolve the marriage; a court order is required to terminate the marriage.
The Dissolution of Muslim Marriage Act, 1939
This act came in to protect women from unwanted marital ties.
The act enumerates the grounds on which a muslim woman can take divorce:
Conclusion
Marriages are a sacred ornament of an individual’s life, however it is some time bound to break due to n no. of reasons. This separation needs a regulated form so that no party gets tangled in the process or is a victim of the loopholes.
Talaq in Muslim law, give a definite procedure for the spouses to get marital separation. Talaq ahsan is the best form of talaq agreed by the consensus of the scholars and has its mention in the Holy Qur’an. There are modes prescribes for men, women in Muslim law. The government has stepped in to make sure that the process of talaq is properly regulated and has enacted the Dissolution of Muslim Marriage Act, 1939.
