DIFFERENT MODES OF TALAQ ( DIVORCE)

A talaq may be effected  in any of the following modes:

1. Talaq-ul-Sunnat, and 
2. Talaq-ul-Biddat.

1. Talaq-ul-Sunnat - It is a a talaq which is effected in accordance with the traditions of Prophet. It has been further sub-divided into:

1. Ahsan, and 
2. Hasan.

(i) Ahsan- This Arabic wordk'ahsan' means 'best' or as Wilson puts it 'very proper'. This signifies that the talaq pronounced in the Ahsan form is the best kind of talaq. To be in Ahsan form the proceedings of divorce must satisfy certain conditions. When the marriage has not been consummated a talaq in the Ahsan form may be pronounced even if the wife is in her menstruation. Where the spouses are away from each other for along period or where the wife is beyond the age of menstruation, the condition of tuhr (purity) is not applicalbe.

A pronouncement made in the ahsan form is revocable during iddat. After the expiration of  the iddat the divorce becomes irrevocable:-

1. Marriage must be consummated
2. A single pronouncement of Talaq such as " I have divorced thee" must be made
3. Such pronouncement must be made during tuhr i.e., the period of purity between menstruation.
4. The requirement that pronouncement of Talaq should be made during tuhr applies to an oral divorce, but it does not apply to a written Talaq.
5. The requirement that pronouncement of Talaq should be made during tuhr does not apply to a wife who has crossed the age of menstruation or the parties have been away from each other for a long time, or when marriage has not been consummated.
6. There must be no sexual intercourse during tuhr.
7. There must be no sexual intercourse during the period of Iddat in case of a pregnant woman, there must be no sexual intercourse till the birth of the child.

It could be revoked if husband makes a Ruju ( sexual intercourse) towards wife during the period of Iddat by conduct or even by express words. This is a common position among all schools. But once the period of Iddat expires Talaq becomes irrevocable. In case of an old lady, beyond the age of menstruation ( Yaisa) would not arise as a condition to pronounce this form of Talaq. When the marriage was not consummated a Talaq in Ahsan form may be pronounced even if the wife is in her menstruation.  This form of Talaq applies to oral Talaq and not a divorce in writing though a memorandum of oral pronouncement could be prepared for proof ( having signature of witnesses which are not necessary under Hanafi Law). There is no other condition for pronouncement of Talaq in this form such as reconciliation. Hence, it was held that reconciliation is not a condition precedent. though in the same case Court had observe that Court should make an attempt  for reconciliation and it is essential according to injunctions of Quran. 

Shia Law-

The only difference being that shia Law requires two Additional witnesses at the time of pronouncement of Talaq. If a man had sexual intercourse during her Pak ( pure) period and wishes to divorce his wife he should wait till she enters in menstruation and then again becomes Pak only then she could be divorced. In case a husband had sexual intercourse during Pak period and separated from wife like, if he proceeded on journey and wishes to divorce, then he should wait for at least one month.

(ii) Hasan Talaq- Hasan Talaq is the approved form 'Hasan' means good.#

Following are the requirements of a Hasan Talaq:-

1. Marriage must be consummated.
2. Three pronouncements of Talaq ( such as 'I have divorce thee' for three times) must be made. Such pronouncements must be made three times ( one during each tuh) during there successive tuhrs.
3. The requirement that the pronouncement of Talaq should be made during tuhrs does not apply to a wife who has crossed the age of menstruation. In such a case, the pronouncement of talaq may be made after the interval of 30 days  between the successive pronouncements. For example if first pronouncement is made on 1st January, 1993 the period for the will expire on 1st April, 1993.
4. There must be no sexual intercourse during all the three successive tuhrs before making any pronouncement. In case of pregnant woman, there mus be nos sexual intercourse till the birth of the child.
5. In case of an unconsummated marriage, a single pronouncement of Talaq even made during a period of menstruation results into in irrevocable Talaq. 

Such divorce becomes irrevocable on the third pronouncement. Fyzee has illustrated an example - The husband pronounces a Talaq for the first time during a period of purity. This is first pronouncement of Talaq. If husband resumes cohabitation or revokes this firs Talaq in this period of purity and thereafter in the following period of purity at a time when no intercourse has taken place husband pronounces second Talaq. This Talaq is again revoked by express words or conduct and the third period of purity entered into. In this period no intercourse has taken place,  the husband for the third time pronounces Talaq. This third pronouncement operates in law as a final and irrevocable dissolution of marriage.

(2) Talaq-ul- Biddat-  Talaq-ul-Biddat is also known as talaq-ul-baio or bidda or bidai. Biddat means sinful. It is recognized only under Sunni Law. In this type of Talaq the pronouncement of Talaq is irrevocable. The historical background of this type of Talaq depicted by Ameer Ali as:

"The Talaq-ul-Biddat, as its name signifies, is the heretical or irregular mode of divorce which was introduced in the second century at the Mohammedan era. ( The Omayyid monarchs finding that the checks imposed by the Prophet on the facility of repudiation interfered with the indulgence of their caprice, endeavored to find an escape from the strictness of law and found a loophole to effect their purpose) As a matter of fact the capricious and irregular the power of the divorce which was in the beginning left to the husband was  strongly disapproved by the Prophet (peace and blessings be upon him). It is reported that when once news was brought to him that one of his disciples had divorced his wife, pronouncing the three talaqs at one and the same time the Prophet (peace be upon him) stood up in anger on his carpet and declared that the man was making the  play thing of the words of God and made him to take back his wife.

Talaq-ul-biddat is a recognized form of divorce among the Hanafis. Triple repetition is not a necessary condition for irreconcilability of effect. Sunni Law recognises talaq-ul-biddat though they think it to be sinful. Shias and Malikis do not recognise this form of divorce. In order to be included in this form of divorce the following requirements are necessary.

• Thee pronouncements made during a single tuhr either in one sentence e.g., "I divorce thee" or in separate sentences e.g., "I divorce thee irrevocable, I divorce thee, I divorce thee"
• A single pronouncement made during a tuhr clearly indicating a n intention irrevocably to dissolve the marriage e.g., "I divorce thee irrevocable"

Talaq-ul-biddat is irrevocable immediately and cannot revoked under any circumstances, from the very beginning it is a talaq-i-bain. If there is clear intention indicating an irrevocable talaq, it would be effected even if such intention is expressed in a single pronouncement and not in simple form.

Talaq-e-Biddat could be pronounced by two methods:

(i)  In the first three pronouncements are made in single Tuhr, either in one sentence, I divorce thee thrice, or in separate sentences e.g., 'I divorce  thee, I divorce thee.

(ii)  The other system is to pronounce Talaq in a single pronouncement, made during Tuhr and with a clear intention to irrevocable dissolving the marriage. Husband has to say, " I divorce thee irrevocably".

Talaq-ul-Bain ( triple Talaq) is a recognised form of talaq among Hanafis. Triple repetition is not a necessary condition for irrevocable effect. Though theologically it is considered bad among Hanafi Law but it is perfectly valid under the law. This consists of three pronouncements made during a single Tuhr either in one sentence or a single pronouncement made during a Tuhr clearly indicating an intention irrevocably to dissolve the marriage. For this kind of Talaq it was observed: "A Talaq is valid even though it is uttered in sport or jest or inadvertently or by mere slip of tongue or even by mistake or carelessness.

A talaq-ul-barin ( irrevocable divorce) is a recognised form of divorce among Hanafis.

When they become irrevocable ?

1.  Talaq-ul-sunnat.

• Talq ahsan-becomes irrevocable on expiry of the period of iddat.
• Talaq hasan-becomes irrevocable on the thir pronouncement irrespective jof the iddat.

2. Talaq-ul-iddat.- It becomes irrevocable immediately whenit is pronounced irrespective of iddat. This talaq is known as talaq-ul-bain. When talaq is in writing it becomes irrevocable immediately. 

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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. 

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DIVORCE (TALAQ)

Matrimony under the Muslim Law being a civil contract, may like any other contract, be terminated by mutual consent. Each sex has certain rights against  the other but for physiological and social reasons there are differences in the position of a man and a woman, as regards their rights during the married state and in respect of divorce. Divorce among the ancient Arabs was easy and frequent occurrence. In fact, this tendency has even persisted to some extent in Islamic Law inspite of the fact that Prophet showed his dislike to it. It was regarded by the Prophet to be the most hateful before the Almighty God of all permitted things; for it prevented conjugal happiness and interfered with the proper bringing up of children. 

When the wife or the husband fails to perform her or his duties to each other after marriage, the following matrimonial reliefs are available to them.

1. Dissolution of Marriage.
2. Repudiation of Marriage.
3. Declaratory Suits.
4. Stipulation in Agreements, enforceable.
5. Restitution of Conjugal Rights.

The Act of 1939 9 Dissolution of Muslim Marriage Act, 1939) in most of its provisions conforms with Islamic Law, therefore, it was rightly held that the Act is complete and is not subject to any principles of Islamic Law. According to Shariat  if the husband of a Christian couple embraces Islam it is possible for him to pronounce divorce because he is subject to Islamic Law, the statutory law makes it unlawful. A husband moves an application that he had divorced his wife about two years ago and this fact was strongly contested by wife. Though no evidence is said to have been produced by the husband but he filed a declaration of divorce. It was held that. "such a bard declaration by the maker himself, which was neither contemporaneous with the alleged divorce nor could hardly be deemed to be a proof of the factum of the alleged divorce.

Talaq amongst Mohammedans  may be oral or in writing. no evidence is required to prove Talaq as the divorce by the husband is complete just by utterance of words "Talaq, Talaq, Talaq" thrice and the presence of a third person is not necessary. There is no option to the wife to challenge Talaq. If  a civil marriage is contracted in England between a Mohammedan of Indian domicile with a Christian whom of British domicile, the marriage cannot be dissolved by mere Talaq because their marriage is not performed according to Mohammedan Law. (Rex v. Hammersmith 1 KB 634) 

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