Talaq & Halala under Muslim Law : Bombay High Court explains
Justice D.B. Bhosale - Bombay High Court
The Bench comprising Justice D.B. Bhosale and R.Y. Ganoo of the Bombay High Court in Sabah Adnan Sami Khan v. Adnan Sami Khan have explained the concept of 'triple talak' under Muslim Law.
The High Court examined the above concepts in the following terms;
7. The Holy Quran is the primary source of Mohammedan Law and represents the God’s Will communicated to the Prophet through the Angel Gabriel. (See: Masroor Ahmed Vs State (NCT of Delhi) and Anr, and the Full Bench Judgment of this Court in Dagdu Pathan Vs Rahimbi Dagdu Pathan, 2003 (1) HLR 689). Section 34, Chapter IV in Mulla’s Principles of Mahomedan Law by Hidayatullah, Nineteenth Edition, (for short, “Mulla’s Mahomedan Law”) deals with Interpretation of the Quran. It states that the Courts, in administering Mahomedan law, should not, as a rule, attempt to put their own construction on the Quran in opposition to the express ruling of Mahomedan commentators of great antiquity and high authority.
8. The Holy Quran recites on the issue of Halala, with which we are concerned in the present appeal, as under : Sura 230 (i e. Verse 230).
“And if he hath divorced her (the third time), then she is not lawful unto him thereafter until she hath wedded another husband. Then if he (the other husband) divorces her, it is no sin for both of them that they come together again if they consider that they are able to observe the limits of Allah. These are the limits of Allah. He manifesteth them for people who have knowledge”.
What it means is that if the Talak was “the third time”, such a Talak was pronounced, then they cannot re-marry unless the wife were to have, in the intervening period, married someone else and her marriage had been dissolved either through divorce or death of that person and the iddat of divorce or death has expired. This is considered as “Halala”.
9. Marriage, according to Muslim Law, is a civil contract, the object of which is to legalize sexual intercourse and the procreation of children. (See: Smt Joygun Nessa Bibi Vs Muhammad Ali Biswas, AIR 1938 Calcutta 71). Divorce is another name of dissolution of marriage under three distinct modes in which a Muslim marriage can be dissolved and the relationship of the husband and the wife terminated.The existence of conjugal relations in the case of Mahomedans has to be determined by reference to the provisions of the Mahomedan Law and not by considerations of equity and good conscience as understood in any other system of law (See: Zohara Khatoon Vs Mohd Ibrahim, AIR 1981 SC 1243).
10. In Mullas Mahomedan Law, section 311 provides, three modes of Talak, with which we are concerned in the present appeal, namely Talak Ahsan; Talak Hasan; and Talak-i-badai. Talak “Ahsan” consists of a single pronouncement of divorce (Talak) made during a tuhr, period between two menstrual course, followed by abstinence from sexual intercourse for the period of Iddat. (See. Section 311(1)). Talak “Hasan” consists of three pronouncements made during successive tuhrs without sexual intercourse during any of the three tuhrs. The Talak becomes irrevocable on pronouncement of divorce during all the three tuhrs. In other words, before the third pronouncement, Talak Hasan is revocable by conduct of the parties. However, once the third pronouncement of divorce is made without sexual intercourse during all the three tuhrs, the divorce becomes irrevocable and in that case after Iddat, the former husband and wife cannot enter into a Nikah unless the wife undergoes the process of Halala. (See. S.311(2). The third mode of Talak, namely, “Talak-i-badai” consists of two modes. Firstly, it consists of three pronouncements made during a single tuhr. For instance, three pronouncements in one go (Triple Talak) either in one sentence, e.g, “I divorce you three times or in separate sentences, e.g., Talak, Talak, Talak. (See : S. 311(3)(i)). The second mode of Talak-i-badai consists of a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage. For instance, “I divorce you irrevocably”. (See: S.311(3)(ii)).
11. A Talak in the “Ahsan” mode becomes irrevocable and complete on the expiration of the period of iddat. (See: S.312(1) in Mulla’s Mahomedan Law) Similarly, a Talak in the “Hasan” mode becomes irrevocable and complete on the third pronouncement, irrespective of the iddat, (See: S.312(2))and a Talak in the “badai” mode becomes irrevocable immediately it is pronounced, irrespective of the iddat. As the Talak becomes irrevocable at once, it is called talak-i-bain, that is, irrevocable Talak (See: S.312(3)). Thus, in case of a Talak in the Ahsan mode and in the “Hasan” mode do not become absolute until a certain period has elapsed. In case of these two modes of Talak the husband has an opportunity of reconsidering his decision and he has the option to revoke it before the certain period is elapsed. The essential feature of a talak-ul-bidaat or talak-i badai is its irrevocability. One of tests of irrevocability is the repetition three times of the formula of divorce within one tuhr. But the triple repetition is not a necessary condition of talak-ulbidaat, and the intention to render a talak-irrevocable may be expressed even by a single declaration. Thus if a man says : “I have divorced you by a talaka-ul-bain (irrevocable divorce)”, the talak is talak-ul-bidaat or talak-i-badai and it will take effect immediately it is pronounced, though it may be pronounced but once. Here the use of the expression “bain” (irrevocable) manifests of itself the intention to effect an irrevocable divorce.
12. “Iddat” has been described in Mulla’s Mahomedan Law, as the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death to remain in seclusion, and to abstain from marrying another husband. The abstinence is imposed to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. When the marriage is dissolved by divorce, the duration of the iddat, if woman is subject to menstruation, is three course; if she is not so subject, it is three Lunar months. If the woman is pregnant at the time, the period terminates upon delivery. When the marriage is dissolved by death, the duration of the iddat is four months and ten days. If the woman is pregnant at the time, the iddat lasts for four months and ten days or until delivery, whichever period is longer (See: Section 257, Chapter XIV in Mulla’s Mahomedan Law). The period of iddat prescribed by Muslim Law is 90 days.
13. As the Talak becomes irrevocable at once, it is called Talak-i-bain, that is, irrevocable Talak. (See: S.312, Mulla’s Mahomedan Law). Thus it is clear that a Talak can be revoked by conduct before it becomes irrevocable. The Talak is, however, complete on the expiration of the period of iddat. Until the talak becomes irrevocable, the husband has the option to revoke it which may be done either expressly, or implied as by resuming sexual intercourse. Every mode of Talak, when is complete, it becomes irrevocable. The question that we have to consider is whether in case of every irrevocable talak, irrespective of its mode, for remarriage with the same husband the wife requires to observe the “Halala”.
14. The Delhi High Court in Masroor Ahmed’s case, after considering different forms of Talak, so also the provisions of Sections 311 and 312 in Mulla’s Mohamedan Law, in paragraphs 26 and 27 of the judgment held thus:
“26. ... .... ... There are views even amongst the sunni schools that the triple talaq pronounced in one go would not be regarded as three talaqs but only as one. Judicial notice can be taken of the fact that the harsh abruptness of triple talaq has brought about extreme misery to the divorced women and even to the men who are left with no chance to undo the wrong or any scope to bring about a reconciliation. It is an innovation which may have served a purpose at a particular point of time in history but, if it is rooted out such a move would not be contrary to any basic tenet of Islam or the Quran or any ruling of the Prophet Muhammad.
27. In this background, I would hold that a triple talaq (talaq-e-bidaat), even for sunni muslims be regarded as one revocable talaq. This would enable the husband to have time to think and to have ample opportunity to revoke the same during the iddat period. All this while, family members of the spouses could make sincere efforts at bringing about a reconciliation. Moreover, even if the iddat period expires and the talaq can no longer be revoked as a consequence of it, the estranged couple still has an opportunity to re-enter matrimony by contracting a fresh nikah on fresh terms of mahr etc.”
15. The Full Bench in Dagdu Versus Rahimbi Dagdu Pathan (supra) had an occasion to consider the provisions in Chapter II and III of Part-I of a Compendium of Islamic Laws published by the All India Muslim Personal Law Board, dealing with the conditions of effectiveness of Talak so also Chapter XVI in Mulla’s Mahomedan Law dealing with the subject Divorce. The Full Bench, after considering section 310, Chapter XVI in Mulla’s Mahomedan Law in respect of Talak in writing, made the following observations:
“Talak in writing is a written mode of Talak reduced in a Talaknama which may only be the record of the fact of an oral Talak or it may be the deed by which the divorce is effected. The deed may be effected in the presence of a Qazi or the wife’s father or of two witnesses. In the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce (Talak-i-bain) and takes effect immediately on its execution. Talak by a delegation is permissible and it is called as a Talak by Tafweez.
Written Talaq may have several forms and some of them are (a) Kitabat-e-mustabinath (legible writing). It is of two kinds – Mustabinah Marsumah (formal legible writing and Mustabinah Ghair Marsumah (informal legible writing) Kitabat-emustabinath Marsumah which is a formal divorcedeed or letter which is written with a title and the addressee’s name.”
16. A Talak may be effected orally (by spoken words) or by a written document called a Talaknama. A Talaknama may only be the record of the fact of an oral Talak; or it may be the deed by which the divorce is effected. Section 313 in Mulla’s Mahomedan Law provides that in the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce that is, talak-i-bain, and takes effect immediately on its execution. Deed of Divorce in writing constitutes a valid divorce (Rasul Bakhst Vs Bholon and others, AIR 1932 (Lah.498). Under Hanafi Law, divorce of wife by a written document is irrevocable (Hayat Khatun Vs Abdullah Khan, AIR 1937 Lah.270). As most Sunni’s are Hanafis the presumption is that a Sunni is governed by Hanafi Law. It is thus clear Talaknama may be only the record of the fact of an oral Talak or it may be the deed by which the divorce is effected. (See: S.310(2)).
17. At this stage, it is also necessary to refer to the rules of revocable and irrevocable Talak and they are in sections 17,18,19 and 20 in Chapter III of Part-I of a Compendium of Islamic Laws, published by the All India Muslim Personal Law Board, dealing with the conditions of effectiveness of Talak, (See: Dagdu Vs Rahimbi Dagdu Pathan) which read thus :
“Section 17 : In a revocable Talaq the husband can take back the wife during “Iddat” without her consent and without a remarriage; but after the expiry of “Iddat” she will become irrevocable divorced and can be lawfully taken back only by a fresh marriage.
Section 18 : Revocable may be either by conduct – e.g., if the husband had had coitus, kissing and caresses with the wife – or by spoken words, e.g. If the husband says that he has taken back his wife and informs her of the same. Revocation by words is preferable in the presence of witnesses (two men or a man and two women).
Section 19: An irrevocable Talaq, whether express or implied, (words of complication are explained hereinafter) is of two kinds; bainunat-e-khafifah (minor separation) and bainunat-e-ghalizah (major separation). Less than three Talaqs effect bainunat-e-khafifah, otherwise there will be bainunat-e-ghalizah.
Section 20 : In bainunat-e-khafifah though the wife goes out of the marital bond but the parties may by mutual consent remarry during or after the “Iddat”. In bainunat-e-ghalizah remarriage is possible only where after the expiry of “Iddat” the woman has married another man who has either died or divorced her and the “Iddat” of death or divorce has expired.”
From perusal of these sections, it is clear that once Talak becomes irrevocable, the wife can be lawfully taken back only by a fresh marriage. Revocation during iddat may be either by conduct or by spoken words. An irrevocable Talak is of two kinds: Bainunat-e-khafifah (minor separation); and Bainunat-eghalizah (major separation). Less then three Talaks effect minor separation, otherwise there will be major separation. If it is minor separation (Bainunat-e-khafifah) the parties may by mutual consent remarry during or after the iddat. However, in case of major separation (Bainunat-e-ghalizah) they cannot remarry unless Halal formality is complied with by the wife.
18. Thus, in our opinion, where Talak becomes irrevocable through any mode between the parties, for re-marriage between them, it is not necessary that the Halala must be observed. In other words, merely because a talak has become irrevocable, does not mean that in case of every irrevocable Talak, irrespective of its mode, for re-marriage between the same couple, it is necessary that the Halala formality must be complied with by the wife.
19. Where the husband has repudiated his wife by three pronouncements (Triple Talak), as provided for in the Hasan mode of Talak (See: S.311(2)) and in Talak-i-badai by three pronouncements (See: S.311(3)(i)), it is not lawful for him to marry her again until she remarries another man and the later divorced her or he dies after actual consummation of the marriage. In other words, in case of a Talak in the Hasan mode and a Talak in Talak-i-badai by the three pronouncements mode, remarriage is possible only if Halala is observed by the wife. A Talak in the Ahsan mode and a Talak in the Talak-i-badai by a single pronouncement mode, Halala need not be observed. Where the husband has repudiated his wife by three pronouncements, even if re-marriage between them is proved, the marriage is not valid unless it is established that the bar to remarriage by observing Halala was removed. The mere fact that the parties have remarried does not raise any presumption as to the fulfillment of Halala formality. (See: Akhtaroon–nissa Vs Shariutoollah Chowdhry, (1867) 7 WR 268).
20. That takes us to consider “Khula”. In Moonshee Buzu – Ul-Rahem Vs Luttee Fatoonisa (1961) 8 MIA 399, Khula is defined as “a divorce by khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. It signifies an arrangement entered into for the purpose of dissolving a connubial connection in lieu of compensation paid by the wife to her husband out of her property.
21. Section 319, Chapter XVI in Mulla Mahomedan Law deals with “Khula and Mubara’at”. In this section, it is stated that a marriage may be dissolved not only by talak, which is the arbitrary act of the husband, but also by agreement between the husband and wife. A dissolution of marriage by agreement may take the form of Khula or Mubara’at. A divorce by Khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case, the terms of the bargain are matters of arrangement between the husband and wife, and the wife may, as the consideration, release her dower and other rights, or make any other agreement for the benefit of the husband. A Khula divorce is effected by an offer from the wife to compensate the husband if he releases her from her marital rights, and acceptance by the husband of the offer. Once the offer is accepted, it operates as a single irrevocable divorce (talak-i-bain, that is, Irrevocable divorce) (Ss.311(3), 312), and its operation is not postponed until execution of the Khulanama (Deed of Khula).
22. Mubara’at means mutual release. A Mubara’at divorce like Khula, is a dissolution of marriage by agreement, but there is a difference between the origin of the two. When the aversion is on the side of the wife, and she desires a separation, the transaction is called Khula. When the aversion is mutual, and both the sides desire a separation, the transaction is called Mubara’at. The offer in a Mubara’at divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted, the dissolution is complete, and it operates as a Talaki- bain as in the case of Khula. As a talak, so in khula and mubara’at, the wife is bound to observe the iddat.
23. Khula is a form of divorce recognised by the Muslim Law. It is virtually a right of divorce purchased by the wife from her husband. It is complete from the moment when the husband repudiates the wife. There is no period during which such a divorce can be revoked at the instance of the husband. Thus, a divorce by Khula is complete if the following conditions are satisfied : (i) if it is at the instance of the wife or there must be an offer from the wife; (ii) she gives or agrees to give a consideration to the husband for her release; and (iii) acceptance by the husband of the offer. Over and above this, under Sunni law, the husband must be adult and of sound mind. A proposal by Khula made by the wife may be retracted by her at any time before the acceptance by the husband and the proposal stands revoked if the wife rises from the meeting where the proposal is made. Abu Hanifa has provided three days of options for wife to accept or revoke Khula but does not allow this option to husband but his disciples are of the opinion that the option is for the both sides. (See: Principles of Muslim Law by Yawer Qazalbash, page 135) Under Hanafi law, no form is necessary but only intention must be proved besides the proposal, acceptance and consideration. In case of a divorce by Mubara’at, offer may be either from the side of wife or from the side of husband. When an offer for mubara’at is accepted it becomes irrevocable divorce. (Talak-Ul-bain). No particular form is required under Sunni law but mutual agreement must be made at the same time and the word Mubara’at must be clearly expressed in the proposal and if ambiguous expressions are used intention must be proved. Under Sunni law, when the parties enter into a mubara’at all mutual rights or obligations came to an end. Thus, Khula is redemption of the contract of marriage while Mubara’at is a mutual release from the marriage tie. In Khula the offer is made by the wife and its acceptance is made by the husband, whereas in Mubara’at any of the two may make an offer and other accepts it. In Khula, a consideration passes from wife to husband, whereas in Mubara’at the question of consideration does not arise.
24. In Asaf A.A.Fyzee, Outlines of Muhammadan Law, Fifth Edition in Chapter IV dealing with divorce by consent after defining Khula and Mubara’at so also after narrating the distinguishing factors between the two, the learned author has concluded the discussion stating that “Khula and Mubara’at operates as a single irrevocable divorce. Therefore, marital life cannot be resumed by mere reconciliation; a formal remarriage is necessary. In either case iddat is incumbent on the wife and, in the absence of agreement to the contrary, the wife and her children do not lose the rights of maintenance during the period”. The learned author has not made any reference to Halala formality in case of remarriage of the couple. In either case, iddat only is incumbent on the wife.
26. Thus, a Khula divorce is effected by an offer from the wife to compensate the husband if he releases her from her marital rights, and acceptance by the husband of the offer. Once the offer is accepted, it operates as a single irrevocable divorce (Talak-i-bain, that is, irrevocable divorce), and its operation is not postponed until execution of Khulanama. In our opinion, merely because Khula becomes irrevocable (talak-i-bain) on complying with all the three conditions, (that is, i. it should be at the instance of the wife or there must be an offer from the wife; ii. the wife gives or agrees to give a consideration to the husband for her release; and iii. acceptance by husband of the offer) does not mean that the rigors of irrevocable divorce by Triple pronouncements are applicable and Halala is mandatory. There is a clear distinction between “Triple Talak” and “talak by single pronouncement” and, therefore, the Talak by single pronouncement cannot be treated as a talak by triple pronouncement, only because at some stage it becomes irrevocable (talak-i-bain). If a talak is the talak by single pronouncement, in our opinion, Halala need not be observed.