Originally Posted by Sana Tariq Khan

QUAID-E-AZAM LAW COLLEGE LAHORE


LLB PART-II Muslim Personal Law


Divorce (Talaq)

Relevant Question on this Topic:-

Define Talaq? What are the different modes of pronunciation of Talaq?
What is Talaq and what are the essentials of Talaq?
What is Divorce please compare Divorce with Khula?

INTRODUCTION

Ø Divorce in legal sense means the dissolution of marriage tie of husband and wife.
Ø Talaq in its original sense means rejection but under Islamic Law it is released from marriage tie either immediately or eventually.

DEFINITION OF TALAQ

i) According to Prophet (S.E.W)
“Talaq is the exercise of absolute power of pronouncing unilateral divorce on his wife by the husband.”
ii) According to Jamal J.Nasir
“The dissolution of a valid marriage contract forth with or a latter date by the husband, his agent or his wife duly authorized to do so using the word ‘Talaq’ a derivative or a synonymy three of “


CAPACITY FOR TALAQ

FORMALITIES OF TALAQ

iii) Oral Talaq
iv) Written Talaq
v) Talaq By Signatures
vi) Oral Talaq by express words and proof of intention
In Shia law, Talaq should be pronounced in Arabic

Case Law: Rashid Ahmad Vs. Anisa Khatoon AIR (1932)

Held that Talaq may be pronounced by clear words denoting Talaq and in this case intention be immaterial.
vii) Presence of Witness
viii) Presence of Wife not required
ix) Communication of Talaq
x) Acknowledgement of Talaq

FORMS OF TALAQ


Talaq-al-Sunnah Talaq-al-Bidda



Talaq Ahsan Talaq Hasan Talaq Single irrevocable TalaqTripple irrevocable

A) TALAQ-AL-SUNNAH
Ø Talaq according to sunnat i.e, the tradition of holy Prophet (s.a.w)
Ø In this type of pronouncement of Talaq is revokeable.
i) Talaq Ahsan
This mode of Talaq consist of a single pronouncement of divorce made during the period of purity and then is waiting time (iddat).
When the ‘iddah’ is passing husband has two alternatives either to reconcile with her honorably before the end of the iddah or to free her and part with her in kindness by the end of iddah.
Requirements of Talaq Ahsan
Consummated Marriage
Single pronunciation
Pronouncement must be made during Tuhr
Pronouncement only in oral divorce
No consummation during iddat.
Talaq Hasan
‘Hasan’ means good or proper. This mode of Talaq is consisted of three pronouncements during three consecutive periods of purity

Requirements of Talaq Hasan
a) Consummated Marriage
b) Three pronouncements of Talaq

REVOCATION OF AHSAN & HASAN TALAQ

In case of Ahsan Talaq
If husband expresses to his wife that he wants to retains her before the expiration of the period of iddat.

In case of Hasan Talaq
It can be revoked by not making the third pronouncement of Talaq.

B) Talaq-ul-Bida
Biddat means sinful.
Reference Case: Ahmed Giri Vs. Mst. Bigha AIR (1955)
It was held that this is the form of Talaq in which the pronouncement of Talaq is irrevocable under Islamic Law. This type of Talaq is not good but valid U/Muhammadan Law.

Single Irrevokable Talaq
If the husband say to his wife “ I divorce you irrevocably” It is enough and irrevocable Talaq.
Tripple Irrevokable Talaq
If husband says to his wife I divorce you, I divorce you, I divorce you or says only that “ I divorce you thrice” is sufficient & irrevocable.
C) OTHER FORMS OF TALAQ
i) Implied Talaq
Where no clear words of divorce are used but intention to divorce is proved.
ii) Illa or Conditional Talaq
Where husband who has attained the age of majority, sound mind says that he divorce his wife
Zihar
If the husband compares his wife to any other female within prohibited degree the wife has right to refuse to continue with him until he has performed penance.
Penance for Zihar
Freeing of Slaves
Fasting for 2 months
Feeding 60 poor persons

Lian

Where a husband charging his wife adultery & the charges is false & the wife is entitled to sue for it & obtain divorce.

DIFFERENCE BETWEEN KHULA & TALAQ

xi) Desire of separation
xii) Consideration
xiii) Acceptance/Consent
xiv) Right of wife


7. CONCLUSION



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QLC
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MUSLIM PERSINAL LAW
PART II
Dissolution of A MUSLIM Marriage

Introduction:
According to Ameer Ali
A valid Mohammedan marriage can be dissolved chiefly through:
Apostasy of either of the spouses; or
By the death of either husband or wife; or
Through divorce initiated by either wife or husband; or
By the exercise of option of puberty.
Condition precedent for Dissolution of Marriage according to Shariah:

There must be valid contract of marriage
*
GROUNDS FOR DECREE FOR DISSOLUTION OF MARRIAGE:
*QURAN: 2:229

“If you fear that the two of you may not be able to keeps the limits ordered by Allah, there is no blame on either if they redeem themselves from marriage tie”.

3. JUDICIAL DIVORCE:
a)**** BY WIFE: SEC 2 DMMA 1939
*
*
1.**** Absence of Husband
2.**** Failure to Provide for Maintenance
3.**** Polygamy of Husband
4.**** Imprisonment of Husband
5.**** Failure to Perform Marital Obligations
6.**** Impotency of Husband
7.**** Insanity of Husband
8.**** Leprosy or a Virulent Disease
9.**** Option of Puberty
10. Li aan
11. Cruelty
12. Husband is Temperamentally Incompatible
13. Separated for over a year
14. Apostasy
15. Any Other Ground
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1. Absence of Husband: Sec.2 (i)
*
************************** If whereabouts of husband is not known for 3 years or more, the wife can apply for divorce through Court.
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Provided:* Decree to take effect after 6 months of its pronouncement.
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2. Failure to Provide for Maintenance:* Sec.2 (i)
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********************* If the husband neglected to provide maintenance to his wife without any reasonable cause for the period of 2 years she has the right to go to Court to apply for divorce.
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3. Polygamy of Husband: Sec.2 (ii) a
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******************* ********Inserted by S. 13 of MFLO, 1961
************** Taking of an additional wife in contravention of the provisions of MFLO.
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4. Imprisonment of Husband: Sec.2 (iii)
************* If the husband is imprisoned for a term of 3 years or upward the wife has the option to apply for divorce in the court.
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Provided: The Appellate Court has finally decided Case of his punishment.
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5. Failure to Perform Marital Obligations: Sec.2 (iv)
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****** If the husband fails to perform his marital obligations for a period of 3 years without reasonable cause the wife can go to court for divorce.
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6. Impotency of Husband: Sec.2 (v)
**********
********** He is impotent at the time of marriage & still it persists.
Burden of Proof: If he says that impotency does not persists the onus to proof lies on him in a year.
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7. Insanity of Husband: Sec.2 (v)
*
******************* If the husband has gone insane the wife has the right to demand divorce.
The period of lunacy has to be for the last 2 years, with or without lucid intervals.
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8. Leprosy or a Virulent Disease: Sec.2 (vi)
*
******* If the husband is suffering from some dangerous, contagious i.e., transferring, transmitting venereal disease for a period of last 2 years.
Example: Testicular or Cervical Cancer: The reason could be because both diseases affect intimacy & result in decreased sexual activity. The virus that caused cervical cancer could often be transmitted by sexual contact & could raise suspicions of infidelity.
Sick spouse is seen as socially unacceptable or because an expected death would obviate the need for a divorce/Khulla.
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9. Option of Puberty: Sec.2 (vii)
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******* It can be exercised on the ground that:
i)****** Her father or other guardian gave her in marriage.
ii)**** Before she has attained the age of 16 years.* (MFLO)
iii)** The marriage had not been consummated.
iv)*** She had repudiated the marriage before she attained the age of majority.
Minor has the right either to ratify the marriage or repudiate after attaining majority.
*
10. Lia an: Sec.2 (vii-a)
*
(Inserted by the Protection of Woman (Criminal Laws Amendments) Act 2006. 2nd Dec 2006)
Meaning of Lia an: Accusation of Zina by husband to his wife & refusal by wife to accept as true.
*
Marriage is brought to an end by fourth oath.
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11. Cruelty: Sec.2 (Viii)
Treats wife with cruelty:
a) i) Habitually Assaults i.e. Beats her physically. Or
********* ii) Makes her life miserable even if such conduct does not amount to physical ill treatment.
b)**** i) Association with women of low repute. Or
ii) Leads a notorious life.
c)***** Tries to compel her to lead an immoral life.
d)**** Dispossessing wife of her property or not letting her uses it.
e)**** Hinder her to perform her religious duties.
f)******* Unable to treat equally if he has more than one wives. (Injunctions of Islam).
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******* 12. Husband Temperamentally Incompatible: Sec. 2 (ix)

The wife can get divorce on this ground. If the wife is unable to get along due conflicting, clashing and opposing nature of her husband.

13. separated for over a year: Sec. 2 (x)

They are not living for a period over a year. Reconciliation efforts have failed, marriage can come to end on this ground too.

14. Apostasy: Sec 4

A wife is entitled to get her marriage dissolved on the conversion of husband to some other religion.
Conversion by wife is not a ground for dissolution of marriage; she can obtain decree for the dissolution of her marriage on any of the grounds mentioned in Sec. 2.

15. Any other Ground: Sec 2 ix

Which is recognized as valid for the dissolution of marriage under Muslim Law.

4.Right to Dower not to be affected:
This Act in no way affect the right of wife to her dower under Muslim Law on the dissolution of her marriage.

Conclusion:
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