TALAQ, QURAN AND LAW

Marriage is marriage. There is no Hindu marriage. Paris marriage, Christian or Muslim marriage. Nevertheless, concept of marriage differs and that really marks out the difference. The concept of marriage under Christian Law is that it is (1) sacrament, (2) an indissoluble union, (3) for (one) life. Similarly under Hindu Law the concept is that marriage is 91) sacrament (2) indissoluble union and (3) for seven lives. As against this concept under Muslim Law, the marriage is sacrosanct ( Sacred contract) and it is a dissoluble union. It means, marriage is not only sacrament but also a civil contract pure and simple. The terms 'pure' and 'simple' are not the terms of edifice but of legal connotations; 'pure' means free from conditions or restrictions and 'simple' means not evidenced by seal, writing or record. Thus while under Muslim  Law. Divorce is implicit in the Marriage (contract). It is not so in other legal systems is implicit in the Marriage as contract. The other legal systems have, therefore, reformed their matrimonial laws and included in it the 'Divorce'. Some of the Western Countries have begun to believe that there is no point in finding out as to where from the bitter water of matrimonial dispute flows. It is best to arrest the flow, the moment it starts and ( some of the Western Countries) prescribe Divorce on the asking. But it goes to the credit of Muslim Law only that it invented and originated Divorce on the asking in the form of Talaq. May be that Muslim Law invented and originated the Talaq a form of divorce on the asking but that does not invest any right in Muslims to misuse and abuse it grossly and with total immunity. 

Before catching Muslim Law with thorns, the other "firsts" invented and originated by Muslim Law may be enumerated. The bridegroom or their parents can enter into a marriage contract, " Marriage Deed" Kabin-Nama or Nikah-Nama. The significance and importance of such Marriage Deed is that both the parties have the 'complete freedom of contract' on terms and conditions peculiarly suitable to them. Thus, the parties can provide for maintenance and so  also for the manner and method of giving  divorce and so on. In the 'Marriage Deed' the boy can be made to agree to delegate his power of Talaq to the girl herself and/or condition/s can be stipulated in such a way that the girl can divorce her husband. It is called as the 'Delegated Divorce'-"Talaq-E-Tafweed". The power to give divorce (Delegated Divorce) can be obtained by wife from husband if not before or at the time of marriage even thereafter. It happens only in Muslim Law and those who are aware are unable to take advantage for several and diverse reasons. One of the reasons is total ignorance of Muslims themselves of such a provision. Another reason appears to be that no one wants to start with negative marriage i.e., ( Delegated Divorce) and hope to turn a new leaf in life. Yet another reason appears to be the operation of the principle of "Husband" how a woman is expected to bargain with any equality or right of divorce given by Muslim Law to women in the form of Delegated Divorce' is almost lost. But the fact remains that the Muslim Law has left no stone unturned to give counter-balancing power to women by conferring upon her the right of giving divorce under'Delegated Divorce' and thereby controlling man's equivocal power to give Talaq at his sweet will.
The Muslim Law has also invented and originated the practice of treating the demise of one spouse as the Talaq, if so desired by the surviving party for re- marriage purpose. This provision appears to be quite insignificant in today's time. But if it is seen in the spectrum of early periods when after death of husband wife was forced to live entire life singly if into douse herself n the year of her husband the importance and significance of  the provision will be loud and clear.
Yet another "first" of the Muslim Law is that it provides for 'Divorce by consent'. The Divorce by consent also appears to be quite insignificant in today's time. But it (Consent Divorce was inserted in the Hindu Marriage and Divorce Act in 1976 in the Parsi Marriage and Divorce Act in 1988 and in Indian Divorce Act(applicable to Christians only) (as late as) in 2001. But Muslims have this provision from the inception Secondly while under Muslim Law parties have not to resort to the Court proceedings because the husband has power to give Talaq in all other cases: parties have to approach Court even though they agree for divorce.
The dissolution of marriage under Muslim Law can be broadly categorized into two:-

1. Judicial and 
2. Extra-Judicial.

As far as the judicial dissolution of marriage is concerned it must be recorded that a Muslim woman is at no disadvantage to seek divorce from Court, if her husband refuses to give divorce. She can seek divorce from Court under he Dissolution of Muslim Marriages Act 1939 on the grounds that:- (1) whereabouts of husband are not known for four years (2) the husband has neglected to provide maintenance to his wife for two years (3) the husband has failed to perform marital obligations for 3 years (4) the husband is imprisoned for 7 years or more (5) the husband suffers from insanity for 2 years or leprosy or virulent venereal diseases (6) the husband is impotent and (7) the husbands treats her with cruelty. Almost the very same grounds are available to any other wife in India for seeking divorce. Therefore  it is necessary to clear out the myth that Muslim women have no legal right to seek divorce from the Court.

On extra-judicial process, the Quranic  injunction says ( Chapter-II Verse 229) " Either retain them with humanity or dismiss them with kindness. Therefore, if marriage broke sown irreparably and reached to point of no return Islam recommended extra-judicial divorce. The judicial divorce was recommended only when the marriage had broken down and they party at fault insists that the marriage tie should continue to subsist Prophet of Islam, at the first place, did into want the matter to be taken to the Court and only as a last resort did he prescribe the judicial intervention. He warned his people to keep away from the path, which would ultimately lead them to a point of no return and breaking down of the marriage tie. But where it were to happen. unavoidably, he wanted the husband or wife ( whosoever might be aggrieve) or both to act quickly and privately.

The scheme of extra-judicial divorce, (other than (1) by demise of spouse (2) by "Delegated Divorce" (3) by mutual consent, and (4) by judicial process- the Dissolution of Muslim Marriages Act, 1939 includes Divorce by Talaq. The Muslim Law gives primary and absolute power to husband to release his wife from the bondage of marriage, if she renders the married life unhappy by her indocility or her bad character.