Muslim

Divorce
 Pre Islamic Background

▪ Among the pre-Islamic Arabs, the power of divorce possessed

by the husband was unlimited
▪ They could divorce their wives at any point of time, for any
reason or without any reason
▪ They could also revoke their divorce, and divorce again as
many times as they preferred
 Talaq ul Sunnat

▪ Restrictions on Talaq
– Relating to number of pronouncements
– Relating to the time, that is, purity or otherwise of the wife

▪ Talaq ul sunnat is of three kind

– Bain or absolute
– Rajai or revocable
– Talaq ul idat or talaq of the iddat (one of the recognized form)
▪ If a man pronounces talaq once in each successive tuhrs and recalls the wife
each time and has connubial intercourse with talaq would become absolute
 Talaq ul Sunnat

▪ Talaq ahasan
– The husband must make a single pronouncement
– There must be abstinence from sexual intercourse during period
of talaq.
– The talaq continues to be suspended during the is revocable
– The pronouncement must (in case of consummated marriage)
during thur
– There must have been no sexual intercourse during tuhr
 Talaq ul Sunnat

▪ Talaq hasan
– There must be three pronouncements
– Every pronouncement must be made separately one during each
successive tuhr in case of menstruating wife otherwise at
intervals of 30 days
– There must be abstinence from sexual intercourse during all the
three tuhrs
– Where the husbands writes in a letter on 15th Sept 2018 and the
period of third divorce would expire on 15th Nov 2018
– The talaq would be talaq hasan.
– There is no talaq till there are two more pronouncements
 Talaq ul bidaat

▪ The main difference between talaq ul sunat and

talaq – ul biddat is that while former is revocable
for some time the letter becomes irrevocable
immediately.
▪ Tha main feature of talaq ul biddat is therefore
irrevocability
▪ This talq may be pronounced even during
menstruation or even if the husband had sexual
intercourse with her since the last menstruation
 Talaq how pronounced

▪ May be effected by words express or in writing or by signs

▪ An oral talq becomes effective
– If the words used are express or clearly show an intention to divorce
– Where the words used are not express, if it is proved that there was an intention
to effect a divorce

▪ A talq in writing becomes effective

– If writing is in customary form, showing the name of the writer and the
addressee
– If it is proved that there was an intention to effect a divorce

▪ it is not necessary that a talaq should be pronounced in the presence

of the wife
▪ A talaq may be pronounced conditionally or so as to take effect
immediately or at a future time or on the happening of any contingency
Who can pronounce talaq

▪ Himself
▪ Through an agent
▪ Through any person empowered to pronounces
talaq
When Talaq becomes
irrevocable

▪ In the case of an unconsummated marriage talaq

becomes irrevocable as soon as it is pronounced
▪ In case of consummated marriage
– Talaq ahsan - on the expiration of iddat
– Talaq hasan – as soon as the third pronouncement is made
– Talaq ul biddat – as soon as it is pronounced
 Revocation of talaq

▪ By words or impliedly
▪ By any conduct of husband
▪ Revocation by agent
▪ A conditional or contingent revocation of a talaq or
revocation which is subject to cancellation is
invalid
Conditions necessary for valid exercises
of the right of divorce by the husband

▪ Majority and puberty

▪ He can effect divorce whenever he desires
▪ Even if he divorces his wife in compulsion, or in jest
or in anger that is considered as a perfectly valid.
▪ The presence of wife is not required
▪ The presence of witnesses is not required
▪ It will be effective from the date she got to know
about the same
 Zihar

▪ If a husband who compares his wife to some prohibited

females relation of his, the act is knows as zihar
▪ In such cases the wife
– May refuses herself to him till he performance penance by way of
fasting for two months or feeding sixty persons
– May apply to the court

▪ If husband neither performs the penance, nor pronounces a

talaq, the court may grant a divorce
 Ila

▪ When a person who is of sound mind and has attained

puberty takes a vow oath by God to abstain from sexual
intercourse for a period of not less than four months or for
an unspecified period, he is said to make ila.
▪ Ila may be revoked before expiry of the period of four
months
– By resumption of conjugal intercourse
– If the intercourse is impossible for causes beyond the control of the
husband then by express words
 Khula

▪ A divorce may be made with consent and at the

instance of the wife if she gives or agrees to give a
consideration to the husband for her release from
the marriage tie.
▪ The husband and wife are both of sound mind and
above puberty
▪ The husband may make a conditional or
contingent proposal of khula
 Mubarraat

▪ Divorce by mutual consent

▪ Difference between khula and mubarraat
 Talaq I tafweez

▪ Husband who has attained age of puberty and is of

sound mind may by an agreement made at the
marriage or subsequently delegate his power to
give effect to her wife or to any other person
▪ Such power may be exercised subject to any
condition or contingency which is not opposed to
any law or to the public policy