Talaq and its Various Forms

Introduction

When a couple wants to put a formal end to their marriage that legal process is called Divorce/ talaq. According to Aqil Ahmad Islam is perhaps the first religion in the world to recognise divorce, even though the Prophet condemned it. It was regarded by the Prophet to be the most hateful of all things that were permitted because it prevented conjugal happiness. Still, divorce among the Arabs was easy and not uncommon.

The Arabic word talaq means "freeing or undoing the knot". The Quran outlines a three-tiered divorce process that takes place over three months, with each pronouncement made in front of witnesses. Originally, a waiting period was required between each pronouncement to allow the couple to attempt reconciliation. However, it later became common to make all three pronouncements in one sitting

Are 'Talaq’ and ‘Divorce’ any different?

In day-to-day life ‘Talaq’ and ‘Divorce’ are used as synonyms. But under Muslim Personal Law, Talaq is a term specifically used for repudiation of marriage by the ‘husband’.

Under Muslim Law there are various modes of dissolution of marriage, some are available only to the husband, whereas others are available only to the wife. A husband can dissolve a marriage by Talaq, Ila, Zihar and a wife can dissolve a marriage by Talaq-e- Tafweez. A husband may either end his marriage or delegate this power to his wife or a third party, this delegation of power is called ‘Tafweez’.  A wife can also dissolve a marriage by making a proposal of ‘Khula’ to the husband.

When it is the mutual decision of both husband and wife to end a marriage that is called ‘Mubarat’. When marriage among Muslims is ended through a Judicial decree under the Dissolution of Muslim Marriage Act, 1939 that will be called a ‘Divorce’ and not a ‘Talaq’.Thus, Divorce is the judicial process of ending a marriage, while Talaq is unique to Muslim Personal law, where the repudiation of marriage is from the husband’s side.

The Various forms of Talaq

1)    Talaq-ul-Sunnat

2)    Talaq-ul-Biddat

3)    Ila

4)    Zihar

1. Talaq-ul-Sunnat

According to Aqil Ahmad “What was said or done or upheld in silence by the Prophet is technically known as ‘Sunnat’ ‘Sunna’ means the model behaviour of the Prophet. The Sunnat is one of the primary sources of Muslim law. Thus, when Talaq is affected according to the traditions of the Prophet, it is Talaq-ul-Sunnat. It is further sub-divided into

i)               Ahsan

ii)             Hasan

Ahsan is an Arabic word which means best. Ahsan is the most approved mode of Talaq.

Essentials of Ahsan

i) The husband must pronounce the divorce in a single sentence.

ii) The divorce must be pronounced in the period of tuhr i.e. when a woman is free from menstruation.

iii) The husband must abstain from intercourse during the iddat period.

Hasan is an Arabic word that means good. It is lesser in worth than Ahasan but is still considered a good form of Talaq.

Essentials of Hasan

i) The husband must make three successive pronouncements of the formula of divorce.

ii)  All these pronouncements must be made during three successive tuhr periods.

iii) Sexual intercourse should be abstained from during these three successive periods of tuhr. 

2. Talaq-ul-Biddat is a disapproved mode of Talaq.

i)   If three pronouncements are made by the husband during a single tuhr either in one sentence or in separate sentences.

ii)  or if a single pronouncement is made during a single tuhr indicating a very clear intention of the husband to divorce irrevocably, It is Talaq-ul-Biddat. This is the famous ‘Triple Talaq’ done away with by the Supreme Court in Shayara Bano v. Union of India (2017)[1]

3. Ila

If the husband is major and of sound mind and he takes an oath that he will not engage with his wife for at least four months and fulfils that oath, the marriage is thereby dissolved and it is Illa.

4. Zihar

If an adult and sane husband compares his wife to his mother or any other female within a prohibited degree such as a sister, the wife then has a right to refuse access to him until he performs penance. If the husband refuses to perform any penance the wife has a right to apply for a decree of divorce. 

Distinction between Sunni and Shia laws of Talaq

1) In Sunnis Talaq is valid both in writing and orally. In Shias Talaq must be oral unless the husband is incapable of pronouncing it.

2) In Sunni law, no witnesses are needed for pronouncing a Talaq. While under Shia law witnesses are necessary. 

Case Laws

Juveria Abdul v. Atif Iqbal[2]

The Supreme Court held that even a divorced Muslim Woman is entitled to relief under the Protection of Women from Domestic Violence Act, 2005.

 
Conclusion

Divorce is the judicial process through which a marriage comes to an end. Talaq is the repudiation of marriage from a Muslim husband’s side. There are various modes of Talaq, out of which Talaq-ul-Biddat (Triple Talaq), was declared unconstitutional by the Supreme Court.

References

[1] Shayara Bano vs Union of India, AIR 2017 SUPREME COURT 4609 

[2] Juveria Abdul v. Atif Iqbal (Criminal Appeal No. 2069 of 2014)

[3] Mohammedan Law by Aqil Ahmad revised by Prof. Iqbal Ali Khan, Central Law Agency, 27th Edition

[4] Principles of Mahomedan Law by Mulla, Lexis Nexis, 23rd Edition