TALAQ AND ITS TYPES
The Muslim Personal Law (Shariat) Application Act, 1937 governs all Muslims in India. This law governs Muslim marriage, succession, inheritance, and charitable giving. The Dissolution of Muslim Marriages Act of 1939 addresses the circumstances under which Muslim women can get divorce as well as the rights of Muslim women who have been divorced by their husbands, as well as other issues.
Muslim marriage is a civil contract between a man and a woman in India. Marriage can be dissolved at the request of the husband (talaq), wife (khula), or both parties (mubarat). By uttering the word talaq, a Muslim man can legally divorce his wife
A marriage can be dissolved by the death of the party or by divorce (talaq).
The divorce (talaq) is classified on the basis of husband, wife, by mutual or by the judicial decree under Dissolution of Muslim Marriage Act, 1939.
BY HUSBAND: There are four types of talaq available to a husband to dissolve a marriage i.e.,
- Talaq- ul- Sunnat
This type of talaq is effective in accordance with the Prophet’s customs. It is then separated into two sections:
- Ashan
As the name implies, it is considered the best form of talaq. The technique that the husband follows is as follows:
He must make a single-sentence divorce declaration, and this declaration must be made in a state of purity (when a woman is free from her menstrual cycle).
If a husband engages in any type of sexual activity during the iddat period (the period of chastity that a Muslim woman is required to observe after the breakdown of her marriage, whether by death or divorce), it will be deemed an implied revocation of talaq. It’s important to remember that once the iddat period has passed, the divorce is final.
Even though the wife is in her menstruation, talaq-e-Ahsan can be uttered if the couples have not consummated their relationship.
- Hasan
Hasan means “excellent” in Arabic, hence divorces pronounced in Hasan mode are good but not as valuable as those uttered in Ahsan mode. The husband must issue three divorce declarations in a row.
Such three pronouncements should be delivered in three consecutive tuhrs in the case of a menstrual wife (state of purity).
Pronouncement should be done at three 30-day intervals in the case of a non-menstruating woman.
There should be no sexual intercourse throughout these three periods of pronouncements, and if there is, the divorce procedure will be annulled.
On the third pronouncement, regardless of the iddat term, Talaq Hasan becomes irreversible.
- Talaq-ul- Biddat
The “Umayyads” adopted this type of talaq to get around the strictness of the law. As far as the Hanafis are concerned, this is a wicked type of talaq. Sunni law recognises this form of talaq, albeit it is also considered immoral. Shias and Malikis, on the other hand, are unaware of this style.
“Talaq, talaq, talaq” or “I divorce thee, I divorce thee, I divorce thee” are examples of three declarations delivered in a single tuhr, either in a single sentence or in distinct sentences.
A single declaration expresses the decision to dissolve a marriage and renders it irreversible. It’s frequently said like this: “I divorce thee irrevocably.”
Partners who have been separated by triple talaq are unable to remarry without the woman marrying another man and divorcing him, a process known as Nikah Halala.
The Supreme Court of India has ruled in Shayara Bano vs Union Of India And Ors. that the practise of triple talaq is unconstitutional, as it violates the fundamental right to life guaranteed by Article 14 of the Indian Constitution.
- Ila (Vow of Continence)
Ila refers to the situation in which a husband of sound mind who has reached the age of majority swears in the name of God that he would not have sexual relations with his wife and leaves her to observe iddat.
If the husband resumes sexual intercourse within the iddat period observed by the wife, the Ila shall be cancelled. Ila is not practised in India.
- Zihar (injurious Assimilation)
To be eligible to employ this way of dissolution of marriage, a husband must be of sound mind and over the age of 18. He has the right to decline sexual relations with his wife if he compares her to his mother or any other female within restricted degrees. Such a rejection will not be accepted until he has completed the legal penance.
BY WIFE:
- Talaq-e-tafweez
This is the only option for a woman to divorce her husband; nevertheless, the power to divorce must be transferred solely by the husband. It’s a type of pre-marital or post-marital agreement that gives the wife the right to divorce her husband provided certain conditions are met, such as:
In the event that the husband marries a second time,
Any other condition that must not be contrary to public policy is that the spouse is unable to sustain her for a set amount of time.
If the husband adheres to the terms of the agreement, the woman can break her marital connections without violating the law. The fact that husband delegates the power to the wife does not dispossess him of his right pronounce talaq.
DIVORCE BY MUTURAL CONSENT:
Although divorce by mutual consent was not recognised by Muslim law, it became available to Muslim women after the passage of the Dissolution of Muslim Marriages Act in 1939.
- Khula
Khula literally means “to lay down” in front of the law. The husband places his right hand on top of his wife. It refers to an agreement made to end a sexual relationship in exchange for compensation paid by the wife to her husband out of her property, including all that can be given as dower.
Khula is a divorce by mutual consent and at the request of a wife, in which she agrees to offer her husband some consideration. It’s essentially a “redemption” of the marriage contract.
Under Shia law, husband can’t revoke divorce once accepted whereas the wife has been given the power to reclaim the consideration during the iddat period.
- Mubarat
It denotes mutual dissolution of the marital ties. The most important factor is that both couples must agree to the dissolution of the marriage.
In this divorce mode,
- Any of the parties can make an offer.
- Acceptance of the offer makes the divorce final.
- Iddat is required.
Parties can dissolve their marriage in Shia law if they are unable to sustain their marriage through mubarat.
The last method of dissolution of marriage listed in the table above is judicial separation.
DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939:
There are two ways:
- Lian
Lian might simply be defined as a husband’s false accusation of infidelity against his wife. When a husband falsely accuses his wife of infidelity, she can sue him and seek a divorce under the Act on the identical grounds by bringing a standard suit for dissolution of marriage. In the case of Zafar Husain v Ummat ur Rahman, the Allahabad High Court found that a Muslim wife has the right to initiate a divorce suit against her husband and get a decree on the grounds that she was falsely accused of adultery by him.
- Faskh
According to the Quran, husband and wife have a duty to respect each other, treat each other with respect, and obey each other’s authorised directives.
If they discover that they can no longer live as husband and wife, they can visit the qazi, who, after a thorough assessment, may decide to end their marriage.
VALID TALAQ
- In Muslim law, a talaq pronounced when inebriated is not recognised as genuine.
- Intention is not an essential elements to be a vaild talaq.
- Without any talaqnama or deed, a husband might give talaq by simply saying it.
- In Muslim law, a talaq pronounced when inebriated is not recognized as genuine.
- Intention is not an essential elements to be a vaild talaq.
- Without any talaqnama or deed, a husband might give talaq by simply saying it.
Author: Ankita Sharma,
Sharda University