Beruflich Dokumente
Kultur Dokumente
Talaq:
The word Talaq originally meant "repudiation" or "rejection". In Muslim law, it means release
from a marriage tie, immediately or eventually. In a restricted sense it means separation
effected by the use of certain appropriate words by the husband and in a wide sense it means all
separations for causes originating from the husband. It is also generic name for all kinds of
divorce but it is particularly applied to the repudiation by or on behalf of husband.
In Moonshee Buzloor Rahim vs Lateefutoon Nissa, it was said that Talaq is a mere arbitrary
act of a muslim husband, by which he may repudiate his wife at his own pleasure with or
without cause.
As per Islamic law, only the husband has a right to pronounce Talaq. Under Talaq-e-tafweez, a
husband may delegate the authority to the wife to pronounce talk on his behalf. The husband
must posses the following qualifications to be able to pronounce a valid Talaq –
Shia - He must be of sound mind and attained the age of puberty. It must be pronounced orally
in the presence of two witnesses unless he is unable to speak. Further, Talaq must not be
pronounced under duress or compulsion otherwise Talaq is void. It must be spoken in Arabic
terms and strictly in accordance to sunnat.
Sunni - Only two requirements - Sound mind, attained majority. A Talaq pronounced under
compulsion or intoxication is effective.
It is not necessary that Talaq must be pronounced in the presence of wife. In Fulchand vs
Navab Ali Chaudhary 1909, it was laid that Talaq should be deemed to have come into effect
on the date on which the wife came to know of it.
Intention is not necessary for a Talaq to take effect. If unambiguous words denoting irrevocable
Talaq are pronounced even by mistake or in anger, it is a valid Talaq.
Talaq can be effected orally or in writing (Talaqnama). If the words are express and well
understood as implying divorce (e.g. "I have divorced thee"), no proof of the intention is
required. If the words are ambiguous (e.g. "Thou art my cousin, the daughter of my uncle, if
you goest"), then intention of the user must be proved.
After the passing of Muslim Marriage Dissolution Act 1949, a muslim wife can also get a
divorce on certain grounds. (Explained below)
The following diagram shows various types of divorces - (Note that technically, Talaq is not
same as divorce, but in the exam when these morons ask about types of Talaq, they actually
mean types of divorce)
By Judicial Decree
Lian - False charge of adultery - When
the husband charges the wife with
adultery and the charge is false, the wife
is entitled to sue for and obtain divorce.
In Zafar Hussain vs Ummat ur
Rahman 1919, the Allahabad HC
accepted the doctrine of Lian. The
Features of Lian -
1. Absence of husband - 4 yrs. Decree passed on this ground will take affect only after 6
months of passing and if the husband shows up during the 6 months he can request the
court to set the decree aside.
2. Failure to maintain - for 2 yrs. Cause is immaterial. Poverty, incapacity is no excuse.
There is no agreement among HCs regarding the conduct of wife. In Fazal Mahmood vs
Ummatur Rahman AIR 1949, Peshawar HC held that if a wife is not faithful or
obedient, the husband is under no obligation to maintain her and her suit for divorce was
dismissed. However, in Mst Nur Bibi vs Pir Bux AIR 1950, Sind HC held that a wife is
entitled to divorce if the husband has failed to maintain her for two years preceding the
suit even though she may not be entitled to maintenance owing to her bad conduct.
3. Imprisonment of husband - for 7 yrs or more.
4. Failure to perform marital obligations - for 3 yrs
5. Impotency of husband - If the husband was impotent at the time of marriage and
continues to be so.
6. Insanity, leprosy, or venereal disease - For insanity, 2 yrs are required. For disease, no
time period is required.
7. Repudiation of marriage - If the wife was married before she was 15, she can repudiate
the marriage before she turns 18.
8. Cruelty of husband - cruelty involves - habitual assault, associates with women of bad
repute, attempts to force her to lead immoral life, disposes off her property, obstructs her
practice of religion, and does not treat all his wives equally.
9. Grounds allowed by muslim law - This covers all the grounds such as Ila, Zihar, Khula,
and Mubarat, which are provided by muslim law.
Section 4 of this act removes apostasy as a ground for granting divorce automatically.
However, if a woman reconverts back to her original faith, the marriage will stand dissolved.
1.Talaq e tafweez
2. Khula
1. Marriage - Parties are entitled to contract another marriage. If the marriage was
consummated the wife has to wait until the period of iddat is over, otherwise, she may
remarry immediately. If the marriage was consummated and if the husband had four
wives at the time of divorce, he can take another wife after the period of iddat.
2. Dower - Dower becomes payable immediately if the marriage was consummated,
otherwise, the wife is entitled to half of the amount specified in dower. If no amount is
specified, she is entitled to 3 articles of dress. Where the marriage is dissolved due to
apostasy of the wife, she is entitled to whole of the dower if the marriage has been
consummated.
3. Inheritance - Mutual rights of inheritance cease after the divorce becomes irrevocable.
4. Cohabitation - Cohabitation becomes unlawful after the divorce has become irrevocable
and children from such intercourse are illegitimate and cannot be legitimated by
acknowledgment as held in In Saiyyad Rashid Ahmad vs Anisa Khatoon 1932.
5. Remarriage - Remarriage between the divorced couple is not possible until
1. the wife observes iddat
2. after iddat she lawfully marries another man
3. this intervening marriage is consummated
4. the new husband pronounces divorce or dies
5. the wife again observes iddat
A marriage done without the fulfilment of the above is irregular, not void. But mere
cohabitation after an irrevocable divorce is void.
6. Maintenance - The wife becomes entitled to maintenance during the period of iddat.
Shayara Bano, a Muslim woman has petitioned the Supreme Court to declare the practice of
triple talaq (talaq-e-bidat) to be unconstitutional as it violates her fundamental rights. The court
will decide whether these practices are violations of her fundamental rights or otherwise
protected by the right to religion.
Background
Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her through
instantaneous triple talaq (talaq -e bidat). She filed a Writ Petition in the Supreme Court
©2017 @ Dr. Shaiwal Satyarthi Page 11 of 13
challenging the constitutional validity of three practices – talaq-e-bidat, polygamy, nikah-halala
– for violating Articles 14, 15, 21, 25 of the Constitution.
Talaq-e- bidat is a practise which gives a man the right to divorce to his wife by uttering ‘talaq’
three times in one sitting without his wife’s consent. Nikah Halala is a practise where a
divorced woman who wants to remarry her husband would have to marry, and obtain divorce,
from a second husband before she can go back to her first husband. And polygamy is a practice
which allows Muslim men to have more than one wife.
The court in its Feb 16th order asked Shayara Bano, the aggrieved petitioner, the Union of
India, women’ rights bodies and the All India Muslim Personal Law Board (AIMPLB) to give
written submissions on the issue of talaq-e- bidat, nikah-halala and polygamy. The Union of
India and the women rights organizations like Bebaak Collective and Bhartiya Muslim Mahila
Andolan(BMMA) have supported the petitioner’s plea that these practices are unconstitutional
albeit on different grounds. The AIMPLB has argued that uncodified Muslim personal law is
not subject to constitutional judicial review and that these are essential practices of the Islamic
religion and protected under Article 25 of the Constitution.
After accepting the Shayara Bano’s petition, the Apex Court formed a 5 judge constitutional
bench on 30th March, 2017. On 22.08.2017, the 5 Judge Bench of the Supreme Court of CJI
J.S. Khehar, Abdul Nazeer J., Rohinton Nariman J., U.U. Lalit J., and Kurien Joseph J.
pronounced its decision in the Triple Talaq Case, declaring that the practice was
unconstitutional by a 3:2 majority.
Triple Talaq or Talaq-e-Biddat, a practice that allowed for a Muslim man to instantaneously
and irrevocable divorce his wife by saying the word ‘talaq’ three times successively was
challenged before Supreme Court as being violative of Muslim women’s Right to equality
among other constitutional freedoms. The the five judge Constitutional Bench of the Supreme
Court heard the matter on 11.05.2017 and after having six days of arguments from both sides,
reserved the case for judgement.
The decision dated 22.08.2017 though by a narrow majority has struck down the practice as
unconstitutional, further directing the Parliament to take legislative measures to the said effect,
the said verdict has been reached with a clear divergence of opinions, that of Rohinton Nariman
and U.U. Lalit JJ. holding that Talaq-e-Biddat is regulated by the Muslim Personal Law
(Shariat) Application Act, 1937, as contrasted with the decision furthered by Kurien Joseph J.
While the former two judges have held the practice to be unconstitutional owing to its
manifestly arbitrary nature that permits a muslim man to bring into effect a unilateral
termination of marriage rather capriciously and whimsically with no scope for reconciliation,
thus violating Article 14 of the Constitution, Kurien Joseph J. on the other hand, in his
concurring but separate opinion records that the reason the practice lacks legal sanction is
because it is against the tenets of the Quran. To quote ” What is held to be bad in the Holy
Quran cannot be good in Shariat and, what is bad in theology is bad in law as well”