Priyanshi Soni, United World School of Law, Karnavati University
To the Point
The institution of marriage holds a sacred bond between the husband and the wife in the Islamic Culture. Like any other personal law, the Muslim Personal Law has also provided the legal framework for the dissolution of marriage. It as recognised different forms and modes of talak which can be initiated by the Husband, Wife and even by the Mutual Consent. The research aims to provide a view regarding those different modes and also the very essentials that are needed in order to make the dissolution valid one. Apart from this, there also exits the judicial form of divorce under the Dissolution of Muslim Marriage Act.
Abstract
The research explores the concept of Talak under the Muslim law and analysis on various modes of talak for the dissolution of marriage. It provides a comprehensive study regarding the two different Sects under the Muslim Law – the Shai and the Sunni Sect. these are the sects under the same law but have many new and different interpretations regarding the marriage, divorce, maintenance and the guardianship Act. The paper provides a deep understanding regarding the differentiation of talak under the two different Sects. The paper also revolves around the judicial way of divorce which is granted through the dissolution of Muslim Marriage Act 1939 and the relevant case laws. The paper provides the findings related to the difference of divorce under the two different Sect, underscoring the need of the uniform system for the dissolution of marriage.
The Proof
MEANING AND DEFINATION OF TALAK
According to Muslim law, talak literally means “untying the knot” or “releasing the women from the marriage.” In order to release the ladies from the marriage, the husband initiates the dissolution of the union. Under Muslim Law, it is considered as an absolute privilege of the husband to pronounce talak at his own pleasure without the consent of the wife, which can be done either done through express words or implied words. In the eyes of law, it is the dissolution of marriage or the end of the legal rights in the marriage.
According to Ameer Ali, talak means ‘when dissolution of marriage proceeds from the husband’. ‘He also states that talak is one sided engine of operation in the hands of husband’.
In the case of Mooshee Buzloor Rahim v. Lalee Nisa 1839, “Talak is a mere arbitrary act of Muslim husband who may divorce his wife at his own pleasure with ot without cause. He may pronounce talak at any time. There is no requirement of wife consent before doing this”.
ESSENTIAL CONDITIONS OF TALAK
- Talak means the release of wife from the husband. It is the process which is initiated by the husband for the dissolution of marriage.
- Only the husband has the rights to pronounce talak, no right for the same is given to the wife. certain exception conditions are there where the wife can pronounce talak.
- The husband pronouncing talak should be of sound mind and should have completed the age of puberty. There will be no valid talak if there is absence of sound mind and puberty age. Absolute condition to give talak is given to husband without any conditions.
- No minor or unsound mind can pronounce talak. In case where the husband is lunatic, then talak can be pronounced by him during the period when he is not lunatic. The guardian of the husband has the right to give talak in the case when he is of unsound mind which is in the interest of the husband.
- There should be free consent except as in provided by the Hanifi school of law i.e it should be free of coercion, threat, misrepresentation and undue influence.
- Witness is required in order to oversee the process of talak under Shai Law, whereas no witness is required under Sunni Law.
- The pronouncement of talak should be certain and clear. There should be no ambiguity, the words should be certain. The husband should pronounce the name of the wife and the indication as to which wife he is denoting should be there,
- Only a marriage performed under Shairat Law will be dissolved by talak.
- According to Sunni Law, a talak can be given orally as well as in written.
- The presence of the wife at the time of talak is required and only when the talak would be legal and lawful.
- A talak may be absolute (without any condition) and it can also be conditioned or contingent (happening on the basis of the future event). In case of contingent contract, the talak will become effective when the contingent condition is complete.
- The husband should be awake at the time of pronouncing talak.
DIFFERENT MODES OF TALAK
The dissolution of Muslim Marriage can be done in various different modes and methods. The dissolution of marriage in simple terms means the end of the rights and the duties which were previously available to the wife and the husband. The two classifications under the dissolution of marriage can be either through under Personal Law or under the Statuary Law (which is Dissolution of Muslim Marriage Act, 1939).
Under the Personal law, the dissolution can marriage can be done in different ways which are mentioned as follow:
- By Husband: Dissolution of marriage by husband can be done through three different ways which are:
- Talak – Talak is also of 2 types:
- Talak – E – Biddat (Single Talak and Tripple Talak)
- Talak – E – Sunnat (Hasan and Ahasan)
- Ila
- Zihar
- Talak – Talak is also of 2 types:
- By Wife: Dissolution of marriage by Wife can be done through two different ways which are:
- Talak – E – Tafwiz
- Khula
- By Mutual Consent
The following above classification of talak is explained below:
BY HUSAND (Talak):
Talak – E – Sunnat: It is one of the most proper form of Talak under Islamic Law which is according to the traditions and the pathways of Prophet Mohammad. It is revocable in nature. The 2 different classifications of this are:
- Hasan: It is the triple pronouncement of talak which is made by the husband in the presence of the wife during the Tuhr period.
- Ahasan: It is the single pronouncement of talak which is made by the husband in the present of the wife during the Tuhr period (which is the mensuration period).
Talak – E – Biddat: It is the most unapproved from of talak because it is not according to the pathways and traditions of Prophet Mohammad. This practice allowed a Muslim man to pronounce 3 times talak in the presence of the wife without her consent4. It was basically given by some jurist. It is also further subdivided into 2 different ways:
- Single Pronouncement of Talak: It is the single pronouncement of talak which is made by the husband in the present of the wife during the Tuhr period (which is the mensuration period).
- Triple Pronouncement of Talak: It is the triple pronouncement of talak which is made by the husband in the presence of the wife during the Tuhr period
Ila (Vow of Discontinuance): The husband will take the vow of discontinuance by not have any sexual intercourse with the wife for a period of 4 months. It is irrevocable in nature, but will become revocable in nature if the husband has any sexual or physical touch with the wife within the prescribed period.
Zihar (Unlawful Comparison): Under Zihar, if the husband disrespect or defame his wife by making an unlawful comparison within the prohibited degree then it will become a ground for divorce. It is revocable in nature and if there is any unlawful comparison, then the wife has the right to say no to cohabitation upto 3 months.
If the husband wants to dissolve the marriage then he has to undergo to penance through 3 options:
- Freeving a slave
- To feed 60 poor people
- Fasting for 2 months
BY WIFE
Talak – E – Tawfiz (Delegated Divorce): Usually, the husband has the power to terminate the marraige, but power is given to the wife through delegation of power from husband to the wife to proceed with the dissolution of marriage. The power can be given to the wife or any other third person to proceed with the dissolution. The power can be temporary, permanent or even it can be contingent. The permanent form of power is revocable is nature whereas the temporary one is not.
If they have to make a contract for the execution of the divorce, then they can also make it but there should be execution of contract. Unless and until there is no execution of contract, there will be no ground of divorce available to the wife.
Khula (Put off The Marriage): The power to dissolve the marriage is in the hands of wife upon certain conditions and if the consideration is accepted by the wife then it will become single irrevocable talak 6. The wife will give consideration in return in order to release her from the marriage and if no consideration is offered by the wife, then the husband can sue her. But, when the consideration is offered by the husband and in case of non – fulfilment, the wife has no right to sue the husband. It is a single irrevocable divorce for Shia’s.
By Mutual Consent:
It is also called as Mubarat which is divorce by mutual consent. It is similar as that to Khula, but here no consideration will be offered by any party in the marriage. When the offer which is provided by any party is accepted, then it will become single irrevocable talak.
JUDICIAL DIVORCE
Judicial separation or divorce is a lawful divorce between the husband and the wife where rather than the involvement of the party, the court is involved. The dissolution of marriage is done by the court’s procedure and intervention. Under the Dissolution of Muslim Marriage Act, 1939 the legal procedure is provided regarding the divorce at the consent of the wife. There are several grounds where the women can take divorce from the husband if any one or all of the condition is satisfied.
Section 2 of Dissolution of Muslim Marriage Act, 1939 provides various grounds for the same which are:
- ”For the period of 4 years, the warebounds of the husband is not known
- The husband is imprisonment for the period of 7 years of more
- The husband has failed to provide the maintenance for the period of 2 years
- The husband has failed to perform his marital obligation for the period of 3 years
- The husband was impotent at the time of the marriage and continuous to do so
- hat the husband has been insane for a period of two years or is suffering from a virulent venereal disease
- hat she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: provided that she has not yet consummated (Option of Puberty)
- that the husband treats her with cruelty, that is to say, —
- habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
- associates with women of evil repute or leads an infamous life, or
- attempts to force her to lead an immoral life, or
- disposes of her property of prevents her exercising her legal rights over it, or
- obstructs her in the observance of her religious profession or practice, or
- if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran;
- on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law”
COMPARITIVE STUDY BETWEEN SHAI AND SUNNI SECT
Divorce under Islamic Law, which is known as divorce is a legal dissolution of marriage between the husband and the wife. There are different approaches of divorce which are recognized under the Islamic Law. Shia and the Sunni Sect are the two different Sect under the Muslim Law and have interpreted the divorce in different sense with some contrasting opinions. This section of the paper aims to make a comparative analysis between the Shia and the Sunni Sect of divorce.
- Oral or Written form of Talak: In Shia Sect, if you want to validate the divorce then the pronouncement of divorce should be made orally and if the husband can speak the word talak and instead of pronouncing it orally, he gave talak in a written form then the marriage will be null and void. The oral pronouncement of talak is necessary.
Whereas, under Sunni Sect the oral pronouncement of talak is not necessary. The pronouncement of talak can be given orally as well as in written format.
- Witness: During the pronouncement of talak the requirement of witness is not necessary under the Sunni Sect. Whereas when we talk about the Shai Sect, then 2 male witnesses are required who are of sound mind and has hit the majority period and in case where the male witness is not present, then the female can also become the witness for that process. If the witness is not present and are not of the competent nature, then the dissolution of marriage will be null and void.
- Free Consent: If the talak pronounce in not with free consent i.e it is with coercion, fraud, misrepresentation or under any undue influence, then the talak will still be valid and effective under the Sunni Law. Whereas, if the talak is not given with free consent or given under any compulsion then according to Shai Law, the talak would be void and null.
- Talak Under Intoxication: If the talak is pronounced without any intention, which means that there is just pronouncement of the word talak without any intention to dissolve the marriage or if the talak is given under intoxication, whether voluntarily or involuntarily then the divorce be will valid one under Sunni Law. But, if the talak is given without any intention or under the intoxication, then the Shai Law doesn’t consider it to be as a valid source of talak and declare it null and void.
- Contingent Talak: A talak may be either contingent or based upon some condition. The contingent talak means that the talak be become effective only upon the fulfilment of the contingency provided. Under the Sunni Law, a contingent talak or condition based talak in a valid one unless and until the talak is not against the traditions of prophet Mohamad. The Shai Law has not recognized the contingent talak and accordingly the contingent talak will become void and null.
- Recognition on Types of Talak: According to Shia Law, the presence of witness is required if the husband has defamed the wife with unlawful comparison under any prohibited degree. The divorce by Talal – ul – Sunnat and Talak – ul – Biddat are valid one and recognized under the Sunni Law. Whereas, the divorce by Talak – ul – Sunnat is permitted under the Shia Law and not by Talak – ul – Biddat as it consider to be unconstitutional.
Use of legal Jargons
Classical Islamic legal vocabulary, each with substantial jurisprudential weight, enriches the legal discourse surrounding the modalities of talaq under Muslim law. An explanation of important phrases used in the context of Islamic marriage law is provided below:
- Nikah: According to Islamic law, nikah is a legally binding civil contract (aqd) that includes the rights and responsibilities of both spouses, rather than just being a sacrament. Therefore, the established legal and ethical processes must be followed when dissolving it.
- Talaq-e-Tafweez: This idea describes a spouse giving his wife or some third person the unilateral power to file for divorce. Such delegation, which is frequently recorded through contractual terms in the nikahnama, might be absolute, conditional, or time-bound and is only enforceable upon actual execution.
- The Iddat Period: The woman is required to observe a waiting period known as iddat after talaq is declared, during which she is not permitted to get married again. In reversible divorces, iddat serves to establish paternity, guarantee emotional reflection, and facilitate reconciliation.
- Talaq: Islamic law distinguishes between irrevocable divorces , such as Talaq-e-Biddat, Khula, and Mubarat, and revocable divorces, such as Ahsan and Hasan types. Determining post-divorce rights and the potential for remarriage without a marriage breakup (halala) depends on this classification.
Case Laws
- Shayara Bano v. Union of India: The Supreme Court ruled in this historic decision that Talaq-e-Biddat, or Triple Talaq, was invalid and unconstitutional. The Court determined that it was against the Constitution’s Articles 14 (Right to Equality) and 21 (Right to Life). As a result, the Muslim Women (Protection of Rights on Marriage) Act, 2019 was passed.
- Mooshee Buzloor Rahim v. Lalee Nisa: The historical concept of male authority under Muslim law is demonstrated by the Privy Council’s ruling that a Muslim husband has the arbitrary right to divorce his wife for any reason.
- Rashid Ahmad v. Anisa Khatun: The irreversibility of Talaq-e-Biddat at the time was further supported by the Privy Council, which maintained the legality of Triple Talaq even when it was administered in a single sitting and without the wife present.
Conclusion
The institution of talak has played a crucial role in shaping the divorce culture in the Muslim Personal Law. The study has explored the different ways and the methods of talak and how the institution of divorce is proceeds from the side of the husband. Despite giving all the rights to the husband, the paper has also presented the view of what legal rights can be provided to women for the institution of marriage. The main intent of the paper is to explain the difference of the approach of divorce between the different two sects of the Muslim i.e the Shai Sect and the Sunni Sect. in conclusion, understanding the aspect of divorce is a crucial and important element in order to provide inclusive rights and create a more balanced system.
FAQs
- Is triple Talak valid in India?
No. In Shayara Bano v. Union of India (2017), the Supreme Court ruled that Talaq-e-Biddat was invalid and unconstitutional as it was against the basic fundamental rights of the Indian Constitution.
- What does the Muslim legal definition of talaq mean?
Under Muslim personal law, the husband’s official repudiation or dissolution of a marriage is known as talaq. It is a unilateral declaration that ends the marital relationship when it is carried out according to the guidelines. - Does a Muslim woman has the power to pronounce the word “talaq”?
Although a woman cannot unilaterally talaq according to conventional views, she can pursue divorce only by:
Khula
Tafweez-e-Talaq
Legal action under the 1939 Dissolution of Muslim Marriage Act
- What use did the 1939 Dissolution of Muslim Marriage Act serve?
Through judicial intervention, Muslim women are granted the legislative right to get a divorce under this Act on a number of grounds, such as cruelty, impotence, desertion, failure to maintain, or unfair treatment.
