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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



------------------------------------


QLC
*
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
*
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.
*
Provided:* Decree to take effect after 6 months of its pronouncement.
*
2. Failure to Provide for Maintenance:* Sec.2 (i)
*
********************* 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.
*
3. Polygamy of Husband: Sec.2 (ii) a
*
******************* ********Inserted by S. 13 of MFLO, 1961
************** Taking of an additional wife in contravention of the provisions of MFLO.
*
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.
*
Provided: The Appellate Court has finally decided Case of his punishment.
*
5. Failure to Perform Marital Obligations: Sec.2 (iv)
*
****** 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.
*
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.
*
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.
*
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.
*
9. Option of Puberty: Sec.2 (vii)
*
******* 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.
*
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).
*
******* 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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Quaid-e-Azam Law College

Concept of Family in Islam ;
Marriage as the Foundation of Family Unit


Handout # 1 Muslim personal law
LLB part II


Concept of family in Islam
It emerges out of
concept of honour and Taqwa for both genders
The idea of a complete and strong society based on strong units
Idea of mutual and respectable relations between spouses
Better up bringing of children
Systematization of domestic and social life

Family Matters

Law of Marriage
Law of Dower
Law of Matrimonial relief
Law of Maintenance
Law of Parentage
Law of Guardianship

MARRIAGE
Institution of marriage is the Central idea of the branch of family law.
In Islam Marriage is a civil contract.
A contract which has in its objects the procreation and legitimation of children and preservation of human race.

Nature of Marriage

“Although a religious duty marriage is emphatically not a sacrament. There are no sacraments in Islam, nor is it coverture…Mohammedan marriage is purely contractual.”
Fitzgerald, Mohammedan law, 1931 Ed. P.37

CAPACITY
Who may enter in the contract of marriage
Muslim
Sound minded
Major
Minor and lunatics may enter in this contract by guardians
Malikies and Shafais require consent of guardian for girl even if she is major

ESSENTIALS

Proposal or Ijab by any party
Acceptance or Qubol by other party
Free consent
Witnesses; two, sound minded, professing Islam
One meeting

TYPES OF MARRIAGE

VALID
Which completes all requisites of Nikkah
VOID
It is perpetually prohibited i.e. plurality of husband
IRREGULAR
It is called Nikkah-e-Fasid and it has only temporary bars

IRREGULAR MARRIAGE

Marriage in iddat
With two sisters
Fifth marriage
Without witnesses
Difference of religion

IDDAT
It is the Period to remain in seclusion for women after the death of the husband or divorce.
On death:
4 months 10 days weather consummated or not, if women is pregnant which time is longer

Iddat On divorce:
-3 courses if marriage is consummated
- no iddat if it is not consummated.
-3 lunar months if wife is minor
-on delivery if pregnant.
(both commence from date of death or divorce)

PROHIBITION ON GROUND OF CONSANGUNITY

PROHIBITION ON GROUND OF AFFINITY (VOID)

PROHIBITION ON GROUND OF FOSTERAGE (VOID)

UNLAWFUL CONJUNCTION: MARRIAGE WITH TWO SISTERS AT A TIME

EFFECTS OF VALID MARRIAGE

Dower
Maintenance
Residence
Obedience to husband
Co-habitation becomes legal
Prohibited relations
Iddat
inheritance

EFFECTS OF VOID MARRIAGE
No civil rights
Children illegitimate

EFFECTS OF IRREGULAR MARRIAGE
Both parties can relinquish
No effects if not consummated
If consummated:
Dower proper or specified whichever is less
Iddat – three courses
Child legitimate
No inheritance

PRESUMPTION OF MARRIAGE
Prolonged and continual co-habitation
Acknowledgement by man of child
Acknowledgement of man as to wife
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quaid-e-azam law college lahore
Muslim family laws ordinance 1961
Essentials of Ordinance
Prof. Amna Bakhtiar Malik

OBJECT:
The MLFO 1961, which was enacted on the recommendation of the commission on marriage & family laws, giving rise to countrywide controversy, there can’t be any doubt that the underlying object in making this provision is to furnish a simpler, cheaper & more expedient remedy to female population.

HISTORICAL BACKGROUNG:
The all Pakistan women’s association, a body which claimed to represented the women point of view was in the forefront in claiming legislation to protect their rights & had in fact started litigation,
“To resolve the issue, the then Govt, Constituted a commission to consider the various aspects of the demands & make recommendations in relation to the family system” PLD 2000 FSC 1
the MFLO 1961, was enforced with effect from the 15th July 1961,(establishment of separate family courts) in furtherance of the enforcement of ordinance 1961, west Pakistan family courts Act 1964, establishing separate family courts w.e from 18th July 1964.
Aim: Expeditious settlements & disposal of disputed relating to marriage & family affairs & for meters connected therewith
Injunction of Islam to prevail: “in case of clash b/w existing law & the injunction on Islam with regard to the validity of marriage , injunction of Islam shall prevail for the purpose of MFLO 1961”
1999 PCrLJ 1655
3. SALIENT FEATURES:
a. Succession/inheritance S. 4
b. Registration of marriage S.5
c. Polygamy S.6
d. Talaq S.7
e. Dissolution of marriage otherwise than by talaq S.8
f. Maintenance S.9
g. Dower S.10

EXPLANATION:
c. Succession:
i. Interpretation of the term
Succession:
“An act or right of legally or officially faking over a predecessor’s office, rank & duties”
Inheritance:
“property received from an ancestor under the law of intestacy”
ii. Relevant Provision
S. 4 MFLO 1961
iii. Essentials of S.4
1. Death of any son or daughter
2. before the opeing of succession
3. the children of such predeceased child, if any
4. living with time the succession opens,
5. shall (mandatory) per stripes (shares according to the stocks & roots of family as against per capita which meant share per head)
6. receive a share
7. equal to the share which such son or daughter would have received
8. If alive
9. duty of court: “court in the cases which involves inheritance inter se among legal heirs should make efforts to ensure that no legal heir is denied his legal share in the estate of deceased on a technical grounds” (2004 YLR 340)
iv. Scope
Sec 4 has been enacted to cater the needs of orphan grand children to remove their sufferings but it can’t be in no way interpreted so as to decrease the shared of other descendent
Application of S. 2 W.P Muslim personal law(shariat) application act 1962 & bothe the statures can stand together
PLD 1990 S.C 1051
Extent of share to be receive children of the predeceased
This section allows inheritance to children of predeceased son or daughter the extent that the son on daughter could have of federal Shari at court’s judgment cited as the judgment of the SC reported as PLD 2000 FSC 1 , is pending decision by the SC of Pakistan & in the light of proviso to clause(2) of Article 203-D of the constitution of Pakistan, 1973 is not to take effect before disposal of appeal preferred to SC against the decision. As such provisions of S.4 remain operator until appeal is disposed of by the honorable SC.
(200 SCLC 1240, PLD 2003 S.C 475)
b. Registration of Marriage
Marriage has been defined as a civil contract which has for its object, the procreation & the legalizing of children
Registration under Islamic Law: for the validity of marriage under Islamic law its registration is not necessary
As held in Arif Husain V state [PLD 1982 FSC 42] non registration of nikah under MFLO 1961, the nikah of an adult girl is not invalid in the absence of any permission from the wali.
Effect of Registration: is not necessarily the proof of nikah, as in Muslim law nikah can be performed by offer & acceptance presence of witnesses.

I. Essentials of Sec.5
· Application of Ordinance:
Provision of this ordinance is applicable only when a marriage has been solemnized according to Muslim rituals

Nikah Registrar:
The union council shall grant license one or more persons who are called, nikah registrar under Muslim Personal law Ordinance 1961, is a public servant within the meaning of S.2 [PLD 1969 SC 435]
Remuneration:
Fees to be received from the parties
Functions of Nikah Registrar:
There are given licence for the registration of marriage held under Muslim law
No of Nikah Registrars:
There shall be only one nikah registrar for ward
V. Report to Nikah Registrar:
S 5(3) envisages that if nikah has been solemnized by a person other than the nikah registrar, that person is under obligation to inform the nikah registrar of the ward where the parties to the marriage are resident
Maintenance of Record:
It is the duty of nikah registrar to maintain the record Govt shall prescribe rule for the procedure of maintenance of such record, which is as follows
Form of nikah nama
fees of registration
registrar of nikah
Union council preserves all the records & manner in which marriage shall be registered
Supply of copies of nikahnama, on paying fee copy of nikahnama shall be supplied to the parties
Inspection of Record:
S. 5(6) enumerates that any person (other than parties) may offer paying a pay prescribed fee

inspect the record preserved under subsection 5
at the office of the union council
may obtain a copy of such entry in the nikah registrar Direction of Union Council
Penalty for Non Registration:
Non Registration of nikah is supporting circumstance that the marriage has not been solemnized sit is non registration would only attract penalty under section 5(4)
[PLD 2000 FSC 63]
§ Imprisonment: Up to 3 month ,or
§ Fine: extend up to Rs. 1000/=
§ Both
Penal Liability:
Person other than the nikah registrar if he fails to report the same with the concerned nikah registrar of the relevant union council
Effect of Non Registration:
Non registration of nikah although a serious irregularity but same would not derogate from the validity of nikah family court while entertaining the suit of non registered marriage, was the report the matter to the relevant union council. [2006 YLR 349]
Mandatory Provision:
S. 5 has mandatory nature
c. Polygamy:
“Marry women of your choice two or three or four but if you fear that you shall not be able to deal justly (with them) than marry only one”
(Sura Nisa- verse 3)
Scope of sec 6:
It stipulates that no man can contract a second marriage during the subsistence of existing marriage except with the previous permission in writing of the Arbitration council.
Existing Marriage:
This expression covers the marriage of a Pakistan Muslim Male with Muslim non citizen or even a non Muslim lady
Previous Permission
Non Registration of Subsequent Marriage
Application for Permission to the Chairman
i. Application written form
ii. Prescribed fee (Rs.100)
iii. Reasons for the proposed marriage
iv. Consent of the exist of wife (s)
v. Signature of Application etc.
Procedure On Receipt of Application Sec 6(3)
vi. Constitution of Arbitration Council S. 2(a)(b)
vii. Satisfaction of the Arbitration Council
The Arbitration Council may without prejudice to its general powers to grant permission for subsequent marriage has to consider the following grounds of West Pakistan Rules
a. Sterility
b. Physical infirmity
c. Physical unfitness for the conjugal relation
d. Willful avoidance of a decree for restitution of conjugal rights
e. Mental infirmity etc. (Rule 14)
f. Grant of permission
The Ac shall record its reasons for granting such permission there
Revision Against the Order:
Any party feeling aggrieved of the above said order may be entitled to file a revision application within prescribed time period
Payment of prescribed fee
Revision Application has to be made to the collector concerned
Finality of the Order of Collector
Order passed by the Collector on that revision petition shall stand final
It won’t be called in question in any court
Effect of contracting subsequent marriage without permission: S. 6(5)
a. Payment of Dower
i. Entire amount of dower
ii. Whether prompt or deferred
iii. To the existing wife (s)
iv. If not a paid
v. Shall be recoverable as arrears of land revenue
b. Punishment Upon Conviction:
i. Punishment up to 1 year, or
ii. Fine up to 5000 or
iii. Both
Bar On Polygamy
S.6 has not expressly declared the subsequent marriage illegal & has merely prescribed a procedure to be followed for the subsequent marriage & punishment for its non observance
Object of S. 6
Spirit of S.6 is reformative only as in fact same is prescribed a corrective measure for measure of injustice to the existing wife
[PLD 2000 FSC 1]
Section 27 Contract Act 1872
d. TALAQ:
Requirements for S. 7(1)
i. Pronouncement of talaq in according with Muslim Law
ii. Service of Notice on the chairman
iii. Service of copy of the notice on the wife
Penalty S. 7(2)
If any person contravenes the provisions of S.7 (1) shall be punishable as
Up to 1 year of simple imprisonment or
Up to rupees 5000/=
Both
Talaq to be Effective S. 7(3)
§ Talaq unless revoked earlier
§ It shall not be effective
§ Until expiration of 90 days
§ From the day on which notice is delivered to the chairmen
Constitution of Arbitration Council:
§ Within 30 days of the receipt of notice to the chairmen
Purpose of Arbitration Council:
§ Reconciliation between the parties
§ Arbitration shall take all steps necessary to bring about such reconciliation
Service of Notice under section 7(1) delivered to the chairmen
Effectiveness Talaq incase of pregnancy: if the pregnancy lasts later than the 90 days from the date of its remarrying the same husband
o S.7(6): it does not debar a wife whose marriage has been termination by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective,
1. [PLD 1963 SC 51]
Three Steps to pronounce Talaq:
Verbal pronouncement:
It has to be verbal pronouncement as mandated by sharia
Form of pronouncement :
Talaq may be pronounced in any form whatsoever, which would mean that in any prevailed made i.e. one own language or in Arabic as same sects prescribe in his behalf
Notice to Chairman:
Verbal pronouncement of Talaq has to be reduced into writing has to be conveyed to the chairman alter with a copy to the wife
Failure to compile with the Provision of S. 7:
Failure to strictly comply with said procedure would not invalidate talaq necessary requirement or ingredient of talaq is a conscious & willful pronouncement of talaq with intention to release wife from marriage land
[2004 YLR 619]
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Originally Posted by Sana Tariq Khan View Post
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



------------------------------------


QLC
*
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
*
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.
*
Provided:* Decree to take effect after 6 months of its pronouncement.
*
2. Failure to Provide for Maintenance:* Sec.2 (i)
*
********************* 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.
*
3. Polygamy of Husband: Sec.2 (ii) a
*
******************* ********Inserted by S. 13 of MFLO, 1961
************** Taking of an additional wife in contravention of the provisions of MFLO.
*
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.
*
Provided: The Appellate Court has finally decided Case of his punishment.
*
5. Failure to Perform Marital Obligations: Sec.2 (iv)
*
****** 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.
*
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.
*
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.
*
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.
*
9. Option of Puberty: Sec.2 (vii)
*
******* 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.
*
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).
*
******* 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:
--------------------------------------
in 2007 they have asked "is there any difference between divorce and dissolution of marriage"......from these notes it seems both are same...please correct me if i am wrong
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in 2007 they have asked "is there any difference between divorce and dissolution of marriage"......from these notes it seems both are same...please correct me if i am wrong
mean difference between divorve and dissolution of marraige
is that divorce is the right of husband .it is excersized by the husband to seek separation from his wife. whereas the dissolution can be excersized by the both parties: husband and wife.
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Originally Posted by Qurban Ali Qureshi View Post
mean difference between divorve and dissolution of marraige
is that divorce is the right of husband .it is excersized by the husband to seek separation from his wife. whereas the dissolution can be excersized by the both parties: husband and wife.
please visit my page
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Can you please explain, what is obligatory bequest?
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Can you please explain, what is obligatory bequest?
Islamic inheritance law excludes orphaned grandchildren from inheriting a share of their grandparent's estate in the event of surviving uncles and aunts under the rule that the nearer in degree excludes the more remote. For centuries, this prohibition has prevented orphaned grandchildren from inheriting a share of their grandparent's estate. Mediaeval Islamic juridical treatises claimed that inheritance law's provisions are the final dictate of God and their authority cannot be questioned. States have tried to resolve the conflict between the provisions of Islamic law and social needs by adopting various devices of reform such as ijtihad, taqlid, takhayyur, and talfiq.

In 1946, Egypt through the device of takhayyur established the principle of obligatory bequest [wasiyyah wagiba] in the Bequest Law, which enabled orphaned grandchildren the right to receive up to one-third of their grandparent's estate. This invited considerable attention of other Islamic states. In spite of some differences in detail, various Islamic countries agreed, in principle, with the position of Egypt. Syria in 1953, Tunisia in 1956, and Iraq in 1959 issued inheritance laws allotting a share of the grandparent's estate to orphaned grandchildren.

In 1961, Pakistan took a proactive stance by stipulating a provision in Section 4 of Muslim Family Laws Ordinance, 1961. The text of this provision is as under

Succession

In the event of death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes, receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.


This provision is distinct from Muslim majority states by adopting the device of Ijtihad to establish the principle of full-representation for orphaned grandchildren.

(Note: This provision was challenged as against Islamic Law and still considered invalid by many Muslim scholars because Islamic inheritance law excludes orphaned grandchildren from inheriting a share of their grandparent's estate in the event of surviving uncles and aunts under the rule that the nearer in degree excludes the more remote)

For more detail read the commentary of Section 4 of Muslim Family Laws Ordinance, 1961.
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it is said Imam abu hanifa was strongly opposed to waqf.then it was recognized and institutionalized.why?discuss it.how waqf can be used in better way?give your suggestions.

please help me with this question. anyone kindly.
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