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MODES OF TALAK (EXTRAJUDICIAL)
Among the Sunnis, talak may be express, implied, contingent, constructive, or delegated. The Shias recognize only the express and the delegated talak.
Express Divorce
When clear and unequivocal words are uttered, the divorce is express. It may be talaq-ul-sunnah (approved and revocable) or talaq-ul-biddat (unapproved and irrevocable).
Talaq-ul-Sunnah: This form of divorce is sanctioned by the sunnat (traditions of the Prophet). It has two forms: ahsan and hasan.
Ahsan Talaq: This consists of a single pronouncement of divorce ("I divorce you") made during a tuhr (period of purity) followed by abstinence from sexual intercourse for the iddat period (90 days). This form allows for revocation at any time before the completion of iddat, providing an opportunity for reconciliation. Revocation can be express or implied by resuming cohabitation or stating "I have retained thee."
Hasan Talaq: This involves three pronouncements of divorce made during successive tuhrs without intercourse during these periods. If no revocation occurs after the first or second declaration, the marriage is irrevocably dissolved upon the third pronouncement, regardless of iddat.
Talaq-ul-Biddat: This form of divorce, although valid, is considered sinful and irregular. It is effective immediately upon pronouncement, leaving no room for reconciliation. The Prophet did not approve of this form. It has two forms:
Triple Talaq: This involves three pronouncements in a single tuhr, either in one sentence ("I divorce thee thrice") or in three separate sentences ("I divorce thee, I divorce thee, I divorce thee"). The divorce becomes irrevocable immediately, irrespective of iddat. This form is condemned and considered heretical, though legally valid.
Single Irrevocable Declaration: This involves a single pronouncement made during a tuhr, clearly indicating an intention to dissolve the marriage irrevocably (e.g., "I divorce thee irrevocably"). The use of the term "bain" (irrevocable) signifies the intent to effect an irrevocable divorce.
The Shias do not recognize talaq-ul-biddat.
CASE: MASROOR AHMED v STATE (NCT OF DELHI) [2008 (103) DRJ 137 (Del.)]
Legal Position Post-Shamim Ara:
Talaq, to take effect, must be proved to be pronounced, show reasonable cause, and demonstrate an attempt at reconciliation.
This applies to ahsan talaq, hasan talaq, and talaq-e-bidat (triple talaq), with triple talaq regarded as one revocable talaq.
Case Background:
The complainant alleged her husband, the petitioner, committed fraud by taking her back home under false pretenses after previously giving her talaq.
She claimed he had unlawful relations with her, not knowing he had divorced her earlier.
Petitioner’s Argument:
He claimed to have given talaq in anger in October 2005 but did not communicate it to the complainant.
Filed for restitution of conjugal rights and, on realizing the previous talaq, performed a second nikah based on a mufti's fatwa.
Court's Observations:
Triple Talaq: Though legally recognized, triple talaq is considered sinful and abrupt. Courts often hold it valid but not desirable.
Communication: Essential for the effectiveness of talaq. It must be made known to the wife at the earliest possible time.
Reconciliation: An attempt at reconciliation by two arbiters, one from each family, is a precondition for talaq.
Court's Rulings:
The October 2005 talaq was invalid as it was given in anger, not communicated timely, and lacked an attempt at reconciliation.
The marital relationship continued during the relevant period, thus negating the charge of rape.
The second nikah on 19.4.2006 was unnecessary since the marriage was still valid. Had the talaq been valid, it would have been a single revocable talaq, making the second nikah effective and valid.
In essence, the court reaffirmed that a valid talaq requires pronouncement, communication, and efforts at reconciliation, protecting the rights of the wife and ensuring due process.
Delegated Divorce (Talaq-i-Tafweez)
The power to give divorce primarily belongs to the husband, but he can delegate this power to the wife or a third person, either absolutely or conditionally, and for a particular period or permanently. A permanent delegation is revocable, while a temporary one is not. Even after delegation, the husband retains the right to pronounce talaq himself.
Talaq by Tafweez: This is a form of delegated divorce where the wife, acting on the husband's authority, pronounces the divorce. It operates legally as a talaq by the husband. Fyzee notes that delegated divorce is a potent means for a Muslim wife to obtain freedom without court intervention, becoming more common in India.
Contingent Delegation: Delegated divorce can be contingent on an event. The wife must actively exercise the power; the event alone does not dissolve the marriage. She cannot be compelled to exercise her right under a Tafweez.
Constructive Divorce
Ila (Vow of Continence): If a husband vows not to approach his wife and abstains from her society (including sexual intercourse) for four months, this is considered a valid Ila. According to Hanafis (Sunnis), this results in a single irrevocable divorce unless the husband resumes intercourse within the four months.
Shafeis and Shias, however, do not see this as resulting in talaq but give the wife the right to seek judicial divorce or restitution of conjugal rights. The practice of Ila is largely obsolete.
Zihar (Unlawful Comparison/Injurious Assimilation): When a husband compares his wife to his mother, sister, or another woman within the degree of prohibited relationship, it is considered zihar.
The wife can refuse cohabitation until the husband performs penance. If he refuses for four months, she gains the right to seek judicial divorce or restitution of conjugal rights. Though recognized by Sec. 2 of the Shariat Act, zihar is very uncommon in India.
Li’an or Laan (Implication/Prayer for Evil): A wife can sue for dissolution of marriage if the husband falsely accuses her of adultery. If the accusation is proven false, she is entitled to a divorce decree; if true, she is not. The accusation alone does not dissolve the marriage; it merely gives the wife grounds to sue for divorce.
If the husband retracts the charge sincerely before the evidence closes, the marriage cannot be dissolved. The wife must file a regular suit for dissolution; a mere application is insufficient. Judicial separation due to Li’an is irrevocable.
Divorce at Wife’s Instance (Khula)
Khula means "to put off" and involves a husband relinquishing his rights over his wife in exchange for a consideration from the wife, thus dissolving the marriage. In a khula divorce, the wife consents to give the husband something of value (e.g., her dower or other rights) to be released from the marital tie. If the dower has already been paid, she may offer money or property instead.
Generally, the consideration must be paid immediately, but the marriage dissolves once the proposal is accepted, even if payment is postponed. If the wife fails to pay, the divorce remains valid, though the husband may sue for the payment.
A khula divorce occurs when the wife offers compensation to the husband to release her from marital rights, and the husband accepts. This acceptance results in a single irrevocable divorce (talaq-i-bain).
The wife can retract her offer anytime before the husband accepts. After acceptance, the husband cannot revoke the khula, but under Shia law, the wife may reclaim the consideration during the Iddat period, allowing the husband to revoke the khula.
Some view khula as a mutual consent divorce or an act of the husband akin to ordinary talaq. Since the separation desire originates from the wife and she must provide consideration to gain the husband's agreement, it is aptly termed divorce at the wife’s instance. For khula, both parties must be of sound mind and have reached puberty.
The offer and acceptance must be freely given. Under Hanafi law, khula under compulsion or intoxication is valid. Sunni law does not require witnesses, but Shia law requires two competent witnesses for the offer and acceptance, and permits the wife to revoke khula during Iddat.
Divorce by Mutual Consent (Mubara’at)
Mubara’at refers to the act of mutually freeing each other from the marital bond. Under Shia law, both parties must genuinely find the marriage burdensome. Like khula, mubara’at involves dissolution of marriage by mutual agreement, but unlike khula, the aversion and desire for separation are mutual.
Either the husband or wife can initiate a mubara’at divorce, and once accepted, the divorce is complete, operating as a talaq-i-bain similar to khula. The wife may often relinquish her dower, though it is not essential. Since both parties equally desire the divorce, no compensation is legally required from either party.
As with talaq, in both khula and mubara’at, the wife must observe the iddat period. During this time, all mutual rights and obligations cease, except the husband's duty to maintain the wife during iddat and to maintain his children by her. The Shariat Act of 1937 recognizes both khula and mubara’at.
Distinction between Sunni and Shia Law of Divorce
Formalities of Talaq:
Sunni Law: No specific formalities are required. Talaq can be communicated in writing (Talaqnama) or through a delegate.
Shia Law: Divorce must be pronounced orally unless the husband is incapable of doing so. A written talaq is void if the husband can pronounce it orally.
Witness Requirements:
Sunni Law: No witnesses are required for the divorce.
Shia Law: Divorce must occur in the presence of two competent witnesses (Muslim men, or one male and two females).
Validity of Talaq under Certain Conditions:
Sunni Law: A talaq pronounced under compulsion, voluntary intoxication, or to please someone else is valid.
Shia Law: Such a talaq is not recognized. Intention is a necessary ingredient for talaq.
Types of Talaq:
Sunni Law: Recognizes express, implied, contingent, constructive, or delegated talaq.
Shia Law: Recognizes only express and delegated talaq.
Talaq-ul-Biddat:
Sunni Law: Although frowned upon, Talaq-ul-Biddat is recognized.
Shia Law: Does not recognize Talaq-ul-Biddat, only Talaq-ul-Sunnat.
Sunni law makes it easier to give talaq compared to Shia law, which aims to discourage frequent and liberal pronouncement of talaq by men.
Remarriage After Pronouncement of Talaq:
Sunni Law: If the parties remarry immediately after pronouncement of talaq, their marriage will be irregular. If they do not remarry and start living together, their cohabitation will be void.
Shia Law: Such a marriage will be void, and similar consequences apply if they do not remarry and start living together.
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