Q. What are different modes of pronouncement of Talaq? discuss.

(2001)
Q. What are different modes of Talaq. (2002)
Q. Define Divorce what are different modes of dissolution of marriage. (2004)
(2005)
Q. What are different modes of "Talaq" and consequences. (2006/A)
1. Introduction:
Divorce is one of the mode of dissolution of the marriage tie of the husband and wife. it is
the right of the husband and the wife. it is the right of the husband to dissolve the marriage.
divorce is a vexed question in Islamic law. Talaq or divorce is regarded by Holy Prophet (P. B.
U. H) to be the most detestable before Allah of all the permitted things for it prevents
conjugal happiness and proper up bringing of children.
2. Meaning:
Divorce means dissuasion or rejection.
3. Definition:
I. General definition:
It is the exercise of absolute power of pronouncing unilateral divorce of the husband. when
its proceeds from the husband it is called Talaq.
4. Forms of Divorce: Under Hanfis: Under Hanfis Talaq may be either oral or written.
Under Shia: Oral pronouncement must be coupled with two male witnesses.
5. Capacity for Divorce:
A Muslim of sound mind, who has attained puberty may dissolved his marriage.
6. Who can not pronounce Divorce:
Following persons can not declare or pronounce Talaq.
(i) A minor
(ii) Unsound person.
7. Nature:
A Muslim husband has right to pronounce Talaq without any cause.
8. Divorce under compulsion:
Under Sunni law:
if Divorce is pronounced under compulsion it is valid.
Under Shia law:
The Shia law does not recognize Talaq pronounce under compulsion or intoxication.
9. Ways of Divorce:
Following are the ways of divorce.
(i) By the husband at his will without the intervention of a court.
(ii) By the mutual consent of the husband and the wife without intervention of the court.
(iii) By the court.
10. Modes of dissolution of marriage:
Following are the different modes of the dissolution of the marriage.
(i) Apostasy
(ii) Death of either party.
(iii) Divorce.
(iv) Option of repudiation or puberty.
(v) Cancellation of an irregular marriage.
11. Different kinds of Divorce:
I. Talaq-E-Ahsa:
It consist of a single pronouncement of divorce. it is irrevocable even after the expiration of

period of Iddat.
II. Talaq-E-Hasan:
It is effected when the husband repudiates his wife during a Tuhr in which he has not had
carnal connection with her, and he repeats the repudiation during the next two Tuhrs. so
makes the divorce final and irrevocable.
III. Talaq-Ul-Biddat:
It consist of
(a) Three pronouncement during a single. Tuhr either in one sentence.
(b) A single pronouncement made during a tuhr clearly indicating an intention irrevocable to
dissolve the marriage.
It becomes irrevocable immediately it is pronounced irrespective of Iddat.
IV.Ila:
If a husband, having attained puberty, Sweras by God not to have Sexual intercourse with
his wife for a period of four months or more or for unspecified period. he is to make Ila.
V. Zihra:
If husband compares his wife to his mother or any other female with in prohibited degree,
the wife has right to refuse- to him until he has performed penance. in default the wife has
to right to apply for inudicial divorce.
VI. Khula:
Khula is separation by putting an end to martrimonial bond and rights. it is that kind of
divorce in which the wife gives of agrees to give a consideration to the husband from her
release of the marriage tie.
VII. Mubara'at:
A Mubara'at is a dissolution of the marriage by the agreement. there is mutual desire for
separation of the spouses in this kinds of divorce. the offer in a mubara'at divorce may
proceeds from the husband or the wife.
VIII. Lian:
The wife is entitled for divorce if her husband has falsely charged her with adultery. if the
charge is proved to be false, the marriage will be dissolved.
Appeal:
No appeal can be filed against the decree of the court on this ground i. e. lian.
IX. Divorce in absence:
Divorce can be pronounced in the absence of the wife. it is essential that husband should
pronounce the name of wife. such divorce is valid and called divorce in absence.
X. Contingent divorce:
Divorce:
Divorce may be pronounced so as to take effect on the happening of a future event. such
divorce is called contingent.
12. Legal consequences:
Legal consequence of the divorce are as under:
(i) Sexual intercourse becomes unlawful.
(ii) Iddat becomes incumbent.
(iii) Remarriage between the same parties become impossible until the wife lawfully marry
another person and lawfully divorced by him after the consummation of the marriage.
(iv) Dower become immediately payable.
(v) Right to contract another marriage.
(vi) Mutual right of inheritance cease.
13. Conclusion:

To conclude I can say that, the divorce is the a mode of dissolution of the marriage. a
husband can divorce her wife without assigning any reason. it is an extra judicial power of
the husband to dissolve the marriage.
10. In Mullas Mahomedan Law, section 311 provides, three modes of Talak, with which we
are concerned in the present appeal, namely Talak Ahsan; Talak Hasan; and Talak-i-badai.
Talak Ahsan consists of a single pronouncement of divorce (Talak) made during a tuhr,
period between two menstrual course, followed by abstinence from sexual intercourse for
the period of Iddat. (See. Section 311(1)). Talak Hasan consists of three pronouncements
made during successive tuhrs without sexual intercourse during any of the three tuhrs. The
Talak becomes irrevocable on pronouncement of divorce during all the three tuhrs. In other
words, before the third pronouncement, Talak Hasan is revocable by conduct of the parties.
However, once the third pronouncement of divorce is made without sexual intercourse
during all the three tuhrs, the divorce becomes irrevocable and in that case after Iddat, the
former husband and wife cannot enter into a Nikah unless the wife undergoes the process of
Halala. (See. S.311(2). The third mode of Talak, namely, Talak-i-badai consists of two
modes. Firstly, it consists of three pronouncements made during a single tuhr. For instance,
three pronouncements in one go (Triple Talak) either in one sentence, e.g, I divorce you
three times or in separate sentences, e.g., Talak, Talak, Talak. (See : S. 311(3)(i)). The
second mode of Talak-i-badai consists of a single pronouncement made during a tuhr clearly
indicating an intention irrevocably to dissolve the marriage. For instance, I divorce you
irrevocably. (See: S.311(3)(ii)).
11. A Talak in the Ahsan mode becomes irrevocable and complete on the expiration of the
period of iddat. (See: S.312(1) in Mullas Mahomedan Law) Similarly, a Talak in the Hasan
mode becomes irrevocable and complete on the third pronouncement, irrespective of the
iddat, (See: S.312(2))and a Talak in the badai mode becomes irrevocable immediately it is
pronounced, irrespective of the iddat. As the Talak becomes irrevocable at once, it is called
talak-i-bain, that is, irrevocable Talak (See: S.312(3)). Thus, in case of a Talak in the Ahsan
mode and in the Hasan mode do not become absolute until a certain period has elapsed.
In case of these two modes of Talak the husband has an opportunity of reconsidering his
decision and he has the option to revoke it before the certain period is elapsed. The
essential feature of a talak-ul-bidaat or talak-i badai is its irrevocability. One of tests of
irrevocability is the repetition three times of the formula of divorce within one tuhr. But the
triple repetition is not a necessary condition of talak-ulbidaat, and the intention to render a
talak-irrevocable may be expressed even by a single declaration. Thus if a man says : I
have divorced you by a talaka-ul-bain (irrevocable divorce), the talak is talak-ul-bidaat or
talak-i-badai and it will take effect immediately it is pronounced, though it may be
pronounced but once. Here the use of the expression bain (irrevocable) manifests of itself
the intention to effect an irrevocable divorce.
3. As the Talak becomes irrevocable at once, it is called Talak-i-bain, that is, irrevocable
Talak. (See: S.312, Mullas Mahomedan Law). Thus it is clear that a Talak can be revoked by
conduct before it becomes irrevocable. The Talak is, however, complete on the expiration of
the period of iddat. Until the talak becomes irrevocable, the husband has the option to
revoke it which may be done either expressly, or implied as by resuming sexual intercourse.
Every mode of Talak, when is complete, it becomes irrevocable. The question that we have

to consider is whether in case of every irrevocable talak, irrespective of its mode, for
remarriage with the same husband the wife requires to observe the Halala.
Section 17 : In a revocable Talaq the husband can take back the wife during Iddat without
her consent and without a remarriage; but after the expiry of Iddat she will become
irrevocable divorced and can be lawfully taken back only by a fresh marriage.
Section 18 : Revocable may be either by conduct e.g., if the husband had had coitus,
kissing and caresses with the wife or by spoken words, e.g. If the husband says that he
has taken back his wife and informs her of the same. Revocation by words is preferable in
the presence of witnesses (two men or a man and two women).
Section 19: An irrevocable Talaq, whether express or implied, (words of complication are
explained hereinafter) is of two kinds; bainunat-e-khafifah (minor separation) and bainunate-ghalizah (major separation). Less than three Talaqs effect bainunat-e-khafifah, otherwise
there will be bainunat-e-ghalizah.
Section 20 : In bainunat-e-khafifah though the wife goes out of the marital bond but the
parties may by mutual consent remarry during or after the Iddat. In bainunat-e-ghalizah
remarriage is possible only where after the expiry of
From perusal of these sections, it is clear that once Talak becomes irrevocable, the wife can
be lawfully taken back only by a fresh marriage. Revocation during iddat may be either by
conduct or by spoken words. An irrevocable Talak is of two kinds: Bainunat-e-khafifah
(minor separation); and Bainunat-eghalizah (major separation). Less then three Talaks
effect minor separation, otherwise there will be major separation. If it is minor separation
(Bainunat-e-khafifah) the parties may by mutual consent remarry during or after the iddat.
However, in case of major separation (Bainunat-e-ghalizah) they cannot remarry unless
Halal formality is complied with by the wife.
18. Thus, in our opinion, where Talak becomes irrevocable through any mode between the
parties, for re-marriage between them, it is not necessary that the Halala must be
observed. In other words, merely because a talak has become irrevocable, does not mean
that in case of every irrevocable Talak, irrespective of its mode, for re-marriage between the
same couple, it is necessary that the Halala formality must be complied with by the wife.
19. Where the husband has repudiated his wife by three pronouncements (Triple Talak), as
provided for in the Hasan mode of Talak (See: S.311(2)) and in Talak-i-badai by three
pronouncements (See: S.311(3)(i)), it is not lawful for him to marry her again until she
remarries another man and the later divorced her or he dies after actual consummation of
the marriage. In other words, in case of a Talak in the Hasan mode and a Talak in Talak-ibadai by the three pronouncements mode, remarriage is possible only if Halala is observed
by the wife. A Talak in the Ahsan mode and a Talak in the Talak-i-badai by a single
pronouncement mode, Halala need not be observed. Where the husband has repudiated his
wife by three pronouncements, even if re-marriage between them is proved, the marriage is
not valid unless it is established that the bar to remarriage by observing Halala was
removed. The mere fact that the parties have remarried does not raise any presumption as

to the fulfillment of Halala formality. (See: Akhtaroonnissa Vs Shariutoollah Chowdhry,

(1867) 7 WR 268).
20. That takes us to consider Khula. In Moonshee Buzu Ul-Rahem Vs Luttee Fatoonisa
(1961) 8 MIA 399, Khula is defined as a divorce by khula is a divorce with the consent, and
at the instance of the wife, in which she gives or agrees to give a consideration to the
husband for her release from the marriage tie. It signifies an arrangement entered into for
the purpose of dissolving a connubial connection in lieu of compensation paid by the wife to
her husband out of her property.
21. Section 319, Chapter XVI in Mulla Mahomedan Law deals with Khula and Mubaraat. In
this section, it is stated that a marriage may be dissolved not only by talak, which is the
arbitrary act of the husband, but also by agreement between the husband and wife. A
dissolution of marriage by agreement may take the form of Khula or Mubaraat. A divorce by
Khula is a divorce with the consent, and at the instance of the wife, in which she gives or
agrees to give a consideration to the husband for her release from the marriage tie. In such
a case, the terms of the bargain are matters of arrangement between the husband and wife,
and the wife may, as the consideration, release her dower and other rights, or make any
other agreement for the benefit of the husband. A Khula divorce is effected by an offer from
the wife to compensate the husband if he releases her from her marital rights, and
acceptance by the husband of the offer. Once the offer is accepted, it operates as a single
irrevocable divorce (talak-i-bain, that is, Irrevocable divorce) (Ss.311(3), 312), and its
operation is not postponed until execution of the Khulanama (Deed of Khula).
22. Mubaraat means mutual release. A Mubaraat divorce like Khula, is a dissolution of
marriage by agreement, but there is a difference between the origin of the two. When the
aversion is on the side of the wife, and she desires a separation, the transaction is called
Khula. When the aversion is mutual, and both the sides desire a separation, the transaction
is called Mubaraat. The offer in a Mubaraat divorce may proceed from the wife, or it may
proceed from the husband, but once it is accepted, the dissolution is complete, and it
operates as a Talaki- bain as in the case of Khula. As a talak, so in khula and mubaraat, the
wife is bound to observe the iddat.
23. Khula is a form of divorce recognised by the Muslim Law. It is virtually a right of divorce
purchased by the wife from her husband. It is complete from the moment when the
husband repudiates the wife. There is no period during which such a divorce can be revoked
at the instance of the husband. Thus, a divorce by Khula is complete if the following
conditions are satisfied : (i) if it is at the instance of the wife or there must be an offer from
the wife; (ii) she gives or agrees to give a consideration to the husband for her release; and
(iii) acceptance by the husband of the offer. Over and above this, under Sunni law, the
husband must be adult and of sound mind. A proposal by Khula made by the wife may be
retracted by her at any time before the acceptance by the husband and the proposal stands
revoked if the wife rises from the meeting where the proposal is made. Abu Hanifa has
provided three days of options for wife to accept or revoke Khula but does not allow this
option to husband but his disciples are of the opinion that the option is for the both sides.
(See: Principles of Muslim Law by Yawer Qazalbash, page 135) Under Hanafi law, no form is

necessary but only intention must be proved besides the proposal, acceptance and
consideration. In case of a divorce by Mubaraat, offer may be either from the side of wife or
from the side of husband. When an offer for mubaraat is accepted it becomes irrevocable
divorce. (Talak-Ul-bain). No particular form is required under Sunni law but mutual
agreement must be made at the same time and the word Mubaraat must be clearly
expressed in the proposal and if ambiguous expressions are used intention must be proved.
Under Sunni law, when the parties enter into a mubaraat all mutual rights or obligations
came to an end. Thus, Khula is redemption of the contract of marriage while Mubaraat is a
mutual release from the marriage tie. In Khula the offer is made by the wife and its
acceptance is made by the husband, whereas in Mubaraat any of the two may make an
offer and other accepts it. In Khula, a consideration passes from wife to husband, whereas
in Mubaraat the question of consideration does not arise.

24. In Asaf A.A.Fyzee, Outlines of Muhammadan Law, Fifth Edition in Chapter IV dealing
with divorce by consent after defining Khula and Mubaraat so also after narrating the
distinguishing factors between the two, the learned author has concluded the discussion
stating that Khula and Mubaraat operates as a single irrevocable divorce. Therefore,
marital life cannot be resumed by mere reconciliation; a formal remarriage is necessary. In
either case iddat is incumbent on the wife and, in the absence of agreement to the contrary,
the wife and her children do not lose the rights of maintenance during the period. The
learned author has not made any reference to Halala formality in case of remarriage of the
couple. In either case, iddat only is incumbent on the wife.
26. Thus, a Khula divorce is effected by an offer from the wife to compensate the husband if
he releases her from her marital rights, and acceptance by the husband of the offer. Once
the offer is accepted, it operates as a single irrevocable divorce (Talak-i-bain, that is,
irrevocable divorce), and its operation is not postponed until execution of Khulanama. In our
opinion, merely because Khula becomes irrevocable (talak-i-bain) on complying with all the
three conditions, (that is, i. it should be at the instance of the wife or there must be an offer
from the wife; ii. the wife gives or agrees to give a consideration to the husband for her
release; and iii. acceptance by husband of the offer) does not mean that the rigors of
irrevocable divorce by Triple pronouncements are applicable and Halala is mandatory. There
is a clear distinction between Triple Talak and talak by single pronouncement and,
therefore, the Talak by single pronouncement cannot be treated as a talak by triple
pronouncement, only because at some stage it becomes irrevocable (talak-i-bain). If a talak
is the talak by single pronouncement, in our opinion, Halala need not be observed.

24. In Asaf A.A.Fyzee, Outlines of Muhammadan Law, Fifth Edition in Chapter IV dealing
with divorce by consent after defining Khula and Mubaraat so also after narrating the
distinguishing factors between the two, the learned author has concluded the discussion
stating that Khula and Mubaraat operates as a single irrevocable divorce. Therefore,
marital life cannot be resumed by mere reconciliation; a formal remarriage is necessary. In
either case iddat is incumbent on the wife and, in the absence of agreement to the contrary,
the wife and her children do not lose the rights of maintenance during the period. The
learned author has not made any reference to Halala formality in case of remarriage of the

couple. In either case, iddat only is incumbent on the wife.

26. Thus, a Khula divorce is effected by an offer from the wife to compensate the husband if
he releases her from her marital rights, and acceptance by the husband of the offer. Once
the offer is accepted, it operates as a single irrevocable divorce (Talak-i-bain, that is,
irrevocable divorce), and its operation is not postponed until execution of Khulanama. In our
opinion, merely because Khula becomes irrevocable (talak-i-bain) on complying with all the
three conditions, (that is, i. it should be at the instance of the wife or there must be an offer
from the wife; ii. the wife gives or agrees to give a consideration to the husband for her
release; and iii. acceptance by husband of the offer) does not mean that the rigors of
irrevocable divorce by Triple pronouncements are applicable and Halala is mandatory. There
is a clear distinction between Triple Talak and talak by single pronouncement and,
therefore, the Talak by single pronouncement cannot be treated as a talak by triple
pronouncement, only because at some stage it becomes irrevocable (talak-i-bain). If a talak
is the talak by single pronouncement, in our opinion, Halala need not be observed.

1. Introduction:
Khula is a form of divorce which is based on mutual consent of the parties. prior to Islam to
Islam the wife had no right to seek dissolution of marriage. in Khula the wife gives or agrees
to give a consideration to the husband for her release from the marriage tie.
2. Meaning of Khula:
Khula means put off.
3. Definition:
I. General:
Khula is separation by putting and end to matrimonial bond and rights..
4. Divorce:
Divorce is dissolution of the marriage tie of the husband and wife.
5. Difference between Khula and Divorce:
I. As to right:
The right of divorce is exercised by the husband.
The right of khula is exercised by the wife.
II. As to dower:
The wife is entitled for dower in case of divorce.
The wife is not entitled for the payment of downer in case of khula.
III. As to reason:
The husband can divorce without any reason.
IV. As to offer:
There is no offer to wife by the husband.
There is an offer by the wife to husband for some consideration.
V. As to procedure:
For pronouncement of divorce, the husband has not to follow any procedure.
For khula, the wife has to file a suit in the court.
VI. As to scope:
The scope of the divorce is unlimited.
The scope of khula is limited.

VII. As to return of remuneration:

In divorce husband has not to give back benefits which he has received by his wife.
6. Delegation of divorce:
A husband can delegate his right of pronouncing divorce.
(a) any other person.
(b) his own wife.
7. Effect of delegation:
Delegation of right of divorce does not divorce does not deprive the husband of his own
right to give divorce.
8. Conditions:
(a) Husband should be sound minded.
(b) He should have attained puberty.
9. When delegation can be made:
Delegation of right of pronouncing divorce can be made.
(i) at the time of marriage.
(ii) It can be made after the marriage.
10. Forms of delegation:
It may be
(a) absolute
(b) conditional
11. Nature of delegation:
The delegation of right to pronounce divorce to the wife is irrevocable but to any other
person is revocable.
12. Distinction between Sunni and Shia law of divorce:
(i) As to form:
(i) Under Sunni law Talaq Biddat and Sunnah are acceptable.
(ii) Under Shia law Talaq Biddat has no existance.
(ii) As to Witnesses:
Under Sunni laws at the time of divorce the presence of witnesses are not essential.
Under Shia law presence of two witnesses are essential.
(iii) As to intention:
Under Sunni law mere the words of divorce are enough to effect the divorce.
Under Shia law there must be intention for divorce.
(iv) As to time:
Under Sunni law divorce can be pronounced at once.
Under Shai law until husband is not capable to pronounce divorce, the documentary divorce
shall not acceptable.
(v) As to compulsion:
Under Sunni law divorce under compulsion is valid.
Under Shia law divorce under compulsion is in valid.
(vi) As to intoxiction:
Under Sunni law divorce under intoxication is valid.
Under Shai law divorce and intoxication is in valid.
13. Conclusion:
To conclude I can say that, the divorce is dissolution of marriage tie of the husband and

wife. the Khula is the recognized form of divorce affected by the act of the parties. the
power of pronouncing divorce can be delegated by the husband.

Define and discuss khula, describe the effects of divorce in detail.

1. Introduction:
Khula is a form of divorce which is based on mutual consent of the parties. prior to
Islam to Islam the wife had no right to seek dissolution of marriage. in Khula the wife
gives or agrees to give a consideration to the husband for her release from the
marriage tie.
2. Meaning of Khula:
Khula means put off.
3. Definition:
I. General:
Khula is separation by putting and end to matrimonial bond and rights.
4. Capacity of Khula:
The parties of Khula must be.
(i) Sound mind.
(ii) Have attained puberty.
5. How Khula is granted:
Khula is granted in two ways.
(a) By mutual agreement.
(b) By order of the court.
6. Essentials of Khula:
(i) Consent of wife:
The wife must show her consent for separation.
(ii) Consideration:
The wife must give or agree to give some consideration in lieu of separation.
(iii) Consent of husband:
The husband also must give his consent as acceptance of the proposal of his wife.
7. Khula under compulsion:
Under Sunni law:
Under Sunni law Khula under compulsion is valid.
Under Shia law:
Under Shai law Khula under compulsion is not valid.
8. Conditional Khula:
Under Sunni law:
Khula may be conditional or unconditional.
Under Shia law:
Conditional Khula is not allowed.
9. Revocation of Khula by wife:
An offer for khula made by the wife may be retracted by her at any time before the
acceptance by the husband.
10. Time of payment of consideration:
Consideration by the wife is payable immediately after khula has been entered.
11. What may be given as consideration:
Everything which may be given as dower may be given as consideration.

12. An increase in the consideration:

An increase in the consideration:
An increase in the consideration when khula has been entered is not valid.
13. Does appeal lie against decree off khula:
Decree for dissolution of marriage on the ground of khula is not appealable.
14. Effects of divorce:
Following are the legal effects of divorce.
I. Right to contract another marriage:
The wife may marry another person.
II. Period of iddat:
The wife has to observe the period of iddat in the rules of divorce.
Remarriage with the same person:
There is no iddat for marriage with the person with whom marriage has been
dissolved by Talaq.
III. Unlawfulness of cohabitation:
The sexual intercourse between the divorced couple is unlawful after the divorce has
been irrevocable.
IV. Payment of dower:
If the marriage was consummated:
If the marriage was consummated the wife is entitled to immediate payment of the
whole unpaid dower both prompt and deferred.
If the marriage was not consummated:
If the marriage was not consummated the wife entitled to half of the specified dower.
V. Cessation of mutual rights of inheritance:
If the divorce has become irrevocable the mutual rights of inheritance are ceased.
VI. Remarriage of divorced couple:
Where the husband has repudiated his wife by three pronouncement, it is unlawful
for him to remarry again until she has married another man and the latter has
divorced has after actual consummation of the marriage.
15.Duty of the court:
Duty of the court while deciding the case of dissolution of marriage on basis of Khula
is to find out as to whether on complaint made by wife against husband that due to
unlawful acts unlawfully committed by her husband she has been constrained to
develop deep harted against him and them remained no possibility to narrow the gulf
of harted such marriage could be required to be dissolved on basis of Khula.
16. Conclusion:
To conclude I can say that under Islamic law the wife has right to obtain dissolution
of marriage on the ground of Khula. it is lawful only when there is a dislike on the
part of wife. thedissolution of marriage on the basis of khula is an independent right
to woman.
The Concept of Divorce under Muslim Law

1.

Firm union of the husband and wife is a necessary condition for a happy family life.
Islam therefore, insists upon the subsistence of a marriage and prescribes that
breach of marriage contract should be avoided. Initially no marriage is contracted to
be dissolved but in unfortunate circumstances the matrimonial contract is broken.

One of the ways of suchdissolution is by way of divorce . Under Muslim law the
divorce may take place by the act of the parties themselves or by a decree of the
court of law. However in whatever manner the divorce is effected it has not been
regarded as a rule of life. In Islam, divorce is considered as an exception to the
status of marriage. The Prophet declared that among the things which have been
permitted by law, divorce is the worst. Divorce being an evil, it must be avoided as
far as possible. But in some occasions this evil becomes a necessity, because when it
is impossible for the parties to the marriage to carry on their union with mutual
affection and love then it is better to allow them to get separated than compel them
to live together in an atmosphere of hatred and disaffection. The basis of divorce in
Islamic law is the inability of the spouses to live together rather than any specific
cause (or guilt of a party) on account of which the parties cannot live together. A
divorce may be either by the act of the husband or by the act of the wife. There are
several modes of divorce under the Muslim law, which will be discussed hereafter.
Modes of Divorce:A husband may divorce his wife by repudiating the marriage
without giving any reason. Pronouncement of such words which signify his intention
to disown the wife is sufficient. Generally this done by talaaq. But he may also
divorce by Ila, and Zihar which differ from talaaq only in form, not in substance. A
wife cannot divorce her husband of her own accord. She can divorce the husband
only when the husband has delegated such a right to her or under an agreement.
Under an agreement the wife may divorce her husband either by Khula or Mubarat.
Before 1939, a Muslim wife had no right to seek divorce except on the ground of
false charges of adultery, insanity or impotency of the husband. But the Dissolution
of Muslim Marriages Act 1939 lays down several other grounds on the basis of which
a Muslim wife may get her divorce decree passed by the order of the court.
There are two categories of divorce under the Muslim law:
1.) Extra judicial divorce, and
2.) Judicial divorce
The category of extra judicial divorce can be further subdivided into three types,
namely,
By husband- talaaq, ila, and zihar.
By wife- talaaq-i-tafweez, lian.
By mutual agreement- khula and mubarat.
The second category is the right of the wife to give divorce under the Dissolution of
Muslim Marriages Act 1939.
Talaaq:Talaaq in its primitive sense means dismission. In its literal meaning, it
means setting free, letting loose, or taking off any ties or restraint. In Muslim
Law it means freedom from the bondage of marriage and not from any other
bondage. In legal sense it means dissolution of marriage by husband using
appropriate words. In other words talaaq is repudiation of marriage by the husband
in accordance with the procedure laid down by the law. The following verse is in
support of the husbands authority to pronounce unilateral divorce is often cited:
Men are maintainers of women, because Allah has made some of them to excel
others and because they spend out of their property (on their maintenance and
dower) . When the husband exercises his right to pronounce divorce, technically this
is known as talaaq. The most remarkable feature of Muslim law of talaaq is that all
the schools of the Sunnis and the Shias recognize it differing only in some details. In
Muslim world, so widespread has been the talaaq that even the Imams practiced it .
The absolute power of a Muslim husband of divorcing his wife unilaterally, without
assigning any reason, literally at his whim, even in a jest or in a state of intoxication,
and without recourse to the court, and even in the absence of the wife, is recognized
in modern India. All that is necessary is that the husband should pronounce talaaq;
how he does it, when he does it, or in what he does it is not very essential. In

Hannefa v. Pathummal, Khalid, J., termed this as monstrosity . Among the Sunnis,
talaaq may be express, implied, contingent constructive or even delegated. The
Shias recognize only the express and the delegated forms of talaaq.
Conditions for a valid talaaq:
1.) Capacity:Every Muslim husband of sound mind, who has attained the age of
puberty, is competent to pronounce talaaq. It is not necessary for him to give any
reason for his pronouncement. A husband who is minor or of unsound mind cannot
pronounce it. Talaaq by a minor or of a person of unsound mind is void and
ineffective. However, if a husband is lunatic then talaaq pronounced by him during
lucid interval is valid. The guardian cannot pronounce talaaq on behalf of a minor
husband. When insane husband has no guardian, the Qazi or a judge has the right to
dissolve the marriage in the interest of such a husband.
2.) Free Consent:Except under Hanafi law, the consent of the husband in
pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced
under compulsion, coercion, undue influence, fraud and voluntary intoxication etc., is
valid and dissolves the marriage.
Involuntary intoxication:Talaaq pronounced under forced or involuntary
intoxication is void even under the Hanafi law.
Shia law: Under the Shia law (and also under other schools of Sunnis) a talaaq
pronounced under compulsion, coercion, undue influence, fraud, or voluntary
intoxication is void and ineffective.
3.) Formalities:According to Sunni law, a talaaq, may be oral or in writing. It may
be simply uttered by the husband or he may write a Talaaqnama. No specific formula
or use of any particular word is required to constitute a valid talaaq. Any expression
which clearly indicates the husbands desire to break the marriage is sufficient. It
need not be made in the presence of the witnesses.
According to Shias, talaaq, must be pronounced orally, except where the husband is
unable to speak. If the husband can speak but gives it in writing, the talaaq, is void
under Shia law. Here talaaq must be pronounced in the presence of two witnesses.
4.) Express words:The words of talaaq must clearly indicate the husbands
intention to dissolve the marriage. If the pronouncement is not express and is
ambiguous then it is absolutely necessary to prove that the husband clearly intends
to dissolve the marriage.
Express Talaaq (by husband):
When clear and unequivocal words, such as I have divorced thee are uttered, the
divorce is express. The express talaaq, falls into two categories:
Talaaq-i-sunnat,
Talaaq-i-biddat.
Talaaq-i-sunnat has two forms:
Talaaq-i-ahasan (Most approved)
Talaaq-i-hasan (Less approved).
Talaaq-i-sunnat is considered to be in accordance with the dictats of
Prophet Mohammad.
The ahasan talaaq:consists of a single pronouncement of divorce made in the
period of tuhr (purity, between two menstruations), or at any time, if the wife is free
from menstruation, followed by abstinence from sexual intercourse during the period
if iddat. The requirement that the pronouncement be made during a period of tuhr
applies only to oral divorce and does not apply to talaaq in writing. Similarly, this
requirement is not applicable when the wife has passed the age of menstruation or
the parties have been away from each other for a long time, or when the marriage
has not been consummated. The advantage of this form is that divorce can revoked
at any time before the completion of the period of iddat, thus hasty, thoughtless
divorce can be prevented. The revocation may effected expressly or impliedly. Thus,

if before the completion of iddat, the husband resumes cohabitation with his wife or
says I have retained thee the divorce is revoked. Resumption of sexual intercourse
before the completion of period of iddat also results in the revocation of divorce. The
Raad-ul-Muhtar puts it thus: It is proper and right to observe this form, for human
nature is apt to be mislead and to lead astray the mind far to perceive faults which
may not exist and to commit mistakes of which one is certain to feel ashamed
afterwards
The hasan talaaq:In this the husband is required to pronounce the formula of
talaaq three time during three successive tuhrs. If the wife has crossed the age of
menstruation, the pronouncement of it may be made after the interval of a month or
thirty days between the successive pronouncements. When the last pronouncement
is made, the talaaq, becomes final and irrevocable. It is necessary that each of the
three pronouncements should be made at a time when no intercourse has taken
place during the period of tuhr. Example: W, a wife, is having her period of purity and
no sexual intercourse has taken place. At this time, her husband, H, pronounces
talaaq, on her. This is the first pronouncement by express words. Then again, when
she enters the next period of purity, and before he indulges in sexual intercourse, he
makes the second pronouncement. He again revokes it. Again when the wife enters
her third period of purity and before any intercourse takes place H pronounces the
third pronouncement. The moment H makes this third pronouncement, the marriage
stands dissolved irrevocably, irrespective of iddat.
Talaaq-i-Biddat:It came into vogue during the second century of Islam. It has two
forms: (i) the triple declaration of talaaq made in a period of purity, either in one
sentence or in three, (ii) the other form constitutes a single irrevocable
pronouncement of divorce made in a period of tuhr or even otherwise. This type of
talaaq is not recognized by the Shias. This form of divorce is condemned. It is
considered heretical, because of its irrevocability.
Ila:Besides talaaq, a Muslim husband can repudiate his marriage by two other
modes, that are, Ila and Zihar. They are called constructive divorce. In Ila, the
husband takes an oath not to have sexual intercourse with his wife. Followed by this
oath, there is no consummation for a period of four months. After the expiry of the
fourth month, the marriage dissolves irrevocably. But if the husband resumes
cohabitation within four months, Ila is cancelled and the marriage does not dissolve.
Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of
the court of law. After the expiry of the fourth month, the wife is simply entitled for a
judicial divorce. If there is no cohabitation, even after expiry of four months, the wife
may file a suit for restitution of conjugal rights against the husband.
Zihar:In this mode the husband compares his wife with a woman within his
prohibited relationship e.g., mother or sister etc. The husband would say that from
today the wife is like his mother or sister. After such a comparison the husband does
not cohabit with his wife for a period of four months. Upon the expiry of the said
period Zihar is complete. After the expiry of fourth month the wife has following
rights:
(i) She may go to the court to get a decree of judicial divorce
(ii) She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said
period, the wife cannot seek judicial divorce. It can be revoked if:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty people, or,
(iii) He frees a slave.
According to Shia law Zihar must be performed in the presence of two witnesses.
Divorce by mutual agreement:
Khula and Mubarat:They are two forms of divorce by mutual consent but in either

of them, the wife has to part with her dower or a part of some other property. A
verse in the Holy Quran runs as: And it not lawful for you that ye take from women
out of that which ye have given them: except (in the case) when both fear that they
may not be able to keep within the limits (imposed by Allah), in that case it is no sin
for either of them if the woman ransom herself. The word khula, in its original sense
means to draw or dig up or to take off such as taking off ones clothes or
garments. It is said that the spouses are like clothes to each other and when they
take khula each takes off his or her clothes, i.e., they get rid of each other. In law it
is said is said to signify an agreement between the spouses for dissolving a connubial
union in lieu of compensation paid by the wife to her husband out of her property.
Although consideration for Khula is essential, the actual release of the dower or
delivery of property constituting the consideration is not a condition precedent for
the validity of the khula. Once the husband gives his consent, it results in an
irrevocable divorce. The husband has no power of cancelling the khul on the ground
that the consideration has not been paid. The consideration can be anything, usually
it is mahr, the whole or part of it. But it may be any property though not illusory. In
mubarat, the outstanding feature is that both the parties desire divorce. Thus, the
proposal may emanate from either side. In mubarat both, the husband and the wife,
are happy to get rid of each other . Among the Sunnis when the parties to marriage
enter into a mubarat all mutual rights and obligations come to an end . The Shia law
is stringent though. It requires that both the parties must bona fide find the marital
relationship to be irksome and cumbersome. Among the Sunnis no specific form is
laid down, but the Shias insist on a proper form. The Shias insist that the word
mubarat should be followed by the word talaaq, otherwise no divorce would result.
They also insist that the pronouncement must be in Arabic unless the parties are
incapable of pronouncing the Arabic words. Intention to dissolve the marriage should
be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other
requirements are the same as in khula and the wife must undergo the period of iddat
and in both the divorce is essentially an act of the parties, and no intervention by the
court is required.
Divorce by wife:
The divorce by wife can be categorized under three categories:
(i) Talaaq-i-tafweez
(ii) Lian
(iii) By Dissolution of Muslim Marriages Act 1939.
Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the
Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to
his wife or any other person. He may delegate the power absolutely or conditionally,
temporarily or permanently . A permanent delegation of power is revocable but a
temporary delegation of power is not. This delegation must be made distinctly in
favour of the person to whom the power is delegated, and the purpose of delegation
must be clearly stated. The power of talaaq may be delegated to his wife and as
Faizee observes, this form of delegated divorce is perhaps the most potent weapon
in the hands of a Muslim wife to obtain freedom without the intervention of any court
and is now beginning to be fairly common in India. This form of delegated divorce is
usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai , under a
prenuptial agreement, a husband, who was a Khana Damad, undertook to pay
certain amount of marriage expenses incurred by the father-in-law in the event of his
leaving the house and conferred a power to pronounce divorce on his wife. The
husband left his father-in-laws house without paying the amount. The wife exercised
the right and divorced herself. It was held that it was a valid divorce in the exercise
of the power delegated to her. Delegation of power may be made even in the post
marriage agreements. Thus where under an agreement it is stipulated that in the

event of the husband failing to pay her maintenance or taking a second wife, the will
have a right of pronouncing divorce on herself, such an agreement is valid, and such
conditions are reasonable and not against public policy . It should be noted that even
in the event of contingency, whether or not the power is to be exercised, depend
upon the wife she may choose to exercise it or she may not. The happening of the
event of contingency does not result in automatic divorce.
Lian:If the husband levels false charges of unchastity or adultery against his wife
then this amounts to character assassination and the wife has got the right to ask for
divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a
voluntary and aggressive charge of adultery made by the husband which, if false,
would entitle the wife to get the wife to get the decree of divorce on the ground of
Lian. Where a wife hurts the feelings of her husband with her behaviour and the
husband hits back an allegation of infidelity against her, then what the husband says
in response to the bad behaviour of the wife, cannot be used by the wife as a false
charge of adultery and no divorce is to be granted under Lian. This was held in the
case of Nurjahan v. Kazim Ali by the Calcutta High Court.
Dissolution of Muslim Marriages Act 1939:
Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the
issue on 17th April 1936. It however became law on 17th March 1939 and thus stood
the Dissolution of Muslim Marriages Act 1939.
Section 2 of the Act runs thereunder:
A woman married under Muslim law shall be entitled to obtain a decree for
divorce for the dissolution of her marriage on any one or more of the
following grounds, namely: That the whereabouts of the husband have not been known for a period of four
years: if the husband is missing for a period of four years the wife may file a petition
for the dissolution of her marriage. The husband is deemed to be missing if the wife
or any such person, who is expected to have knowledge of the husband, is unable to
locate the husband. Section 3 provides that where a wife files petition for divorce
under this ground, she is required to give the names and addresses of all such
persons who would have been the legal heirs of the husband upon his death. The
court issues notices to all such persons appear before it and to state if they have any
knowledge about the missing husband. If nobody knows then the court passes a
decree to this effect which becomes effective only after the expiry of six months. If
before the expiry, the husband reappears, the court shall set aside the decree and
the marriage is not dissolved.
That the husband has neglected or has failed to provide for her maintenance for a
period of two years: it is a legal obligation of every husband to maintain his wife, and
if he fails to do so, the wife may seek divorce on this ground. A husband may not
maintain his wife either because he neglects her or because he has no means to
provide her maintenance. In both the cases the result would be the same. The
husbands obligation to maintain his wife is subject to wifes own performance of
matrimonial obligations. Therefore, if the wife lives separately without any
reasonable excuse, she is not entitled to get a judicial divorce on the ground of
husbands failure to maintain her because her own conduct disentitles her from
maintenance under Muslim law.
That the husband has been sentenced to imprisonment for a period of seven years
or upwards: the wifes right of judicial divorce on this ground begins from the date on
which the sentence becomes final. Therefore, the decree can be passed in her favour
only after the expiry of the date for appeal by the husband or after the appeal by the
husband has been dismissed by the final court.
That the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years: the Act does define marital obligations of the

husband. There are several marital obligations of the husband under Muslim law. But
for the purpose of this clause husbands failure to perform only those conjugal
obligations may be taken into account which are not included in any of the clauses of
Section 2 of this Act.
That the husband was impotent at the time of the marriage and continues to be so:
for getting a decree of divorce on this ground, the wife has to prove that the
husband was impotent at the time of the marriage and continues to be impotent till
the filing of the suit. Before passing a decree of divorce of divorce on this ground,
the court is bound to give to the husband one year to improve his potency provided
he makes an application for it. If the husband does not give such application, the
court shall pass the decree without delay. In Gul Mohd. Khan v. Hasina the wife filed
a suit for dissolution of marriage on the ground of impotency. The husband made an
application before the court seeking an order for proving his potency. The court
allowed him to prove his potency.
If the husband has been insane for a period of two years or is suffering from
leprosy or a virulent veneral disease: the husbands insanity must be for two or more
years immediately preceding the presentation of the suit. But this act does not
specify that the unsoundness of mind must be curable or incurable. Leprosy may be
white or black or cause the skin to wither away. It may be curable or incurable.
Veneral disease is a disease of the sex organs. The Act provides that this disease
must be of incurable nature. It may be of any duration. Moreover even if this disease
has been infected to the husband by the wife herself, she is entitled to get divorce on
this ground.
That she, having been given in marriage by her father or other guardian before she
attained the age of fifteen years, repudiated the marriage before attaining the age of
eighteen years, provided that the marriage has not been consummated;
That the husband treats her with cruelty, that is to say,(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if
such conduct does not amount to physical illtreatment, or
(b) Associates with women of ill-repute or leads an infamous life, or
(c) Attempts to force her to lead an immoral life, or
(d) Disposes of her property or prevents her exercising her legal rights over it, or
(e) Obstructs her in the observance of her religious profession or practice, or
(f) If he has more than one wives, does not treat her equitably in accordance with
the injunctions of the Holy Quran.
Irretrievable Breakdown:Divorce on the basis of irretrievable breakdown of
marriage has come into existence in Muslim Law through the judicial interpretation of
certain provisions of Muslim law. In 1945 in Umar Bibi v. Md. Din, it was argued that
the wife hated her husband so much that she could not possibly live with him and
there was total incompatibility of temperaments. On these grounds the court refused
to grant a decree of divorce. But twenty five years later in Neorbibi v. Pir Bux , again
an attempt was made to grant divorce on the ground of irretrievable breakdown of
marriage. This time the court granted the divorce. Thus in Muslim law of modern
India, there are two breakdown grounds for divorce: (a) non-payment of
maintenancy by the husband even if the failure has resulted due to the conduct of
the wife, (b) where there is total irreconcilability between the spouses.
Conclusion:
In contrast to the Western world where divorce was relatively uncommon until
modern times, and in contrast to the low rates of divorce in the modern Middle East,
divorce was a common occurrence in the pre-modern Muslim world. In the medieval
Islamic world and the Ottoman Empire, the rate of divorce was higher than it is
today in the modern Middle East. In 15th century Egypt, Al-Sakhawi recorded the
marital history of 500 women, the largest sample on marriage in the Middle Ages,

and found that at least a third of all women in the Mamluk Sultanate of Egypt and
Syria married more than once, with many marrying three or more times. According
to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in
divorce. In the early 20th century, some villages in western Java and the Malay
peninsula had divorce rates as high as 70%.In practice in most of the Muslim world
today divorce can be quite involved as there may be separate secular procedures to
follow as well. Usually, assuming her husband demands a divorce, the divorced wife
keeps her mahr, both the original gift and any supplementary property specified in
the marriage contract. She is also given child support until the age of weaning, at
which point the child's custody will be settled by the couple or by the courts.
Women's right to divorce is often extremely limited compared with that of men in the
Middle East. While men can divorce their spouses easily, women face a lot of legal
and financial obstacles. For example, in Yemen, women usually can ask for divorce
only when husband's inability to support her life is admitted while men can divorce at
will. However, this contentious area of religious practice and tradition is being
increasingly challenged by those promoting more liberal interpretations of Islam.
**********************
Divorce/ traditions / Sunnah
Dissolution of Marriage
"Generally speaking married couples make their best efforts to continue their marital
relations in cordiality and happiness."(1) There are those occasions where it becomes
impossible for a couple to maintain a viable relationship (i.e. neglect, abuse, etc.). In
these cases "the Shari'ah takes a very reasonable view of such an intolerable
situation and instead of forcing the couple to stay together...."(2) it permits a
divorce.
There are three kinds of divorce in Islam:
The first is Talaq (by the husband) and the second is Talaq Al-Bida'h (Divorce of
Innovation) and Khul' (by the wife).
Talaq
Talaq has two forms:
1. Talaq ar-Raji': (revocable divorce) which has two types:

Talaq Ahsan: (the most approved divorce). It is meant as a means to heal the
breach between a couple and allow for the soothing of frayed nerves. It has
three conditions. The husband must only pronounce one Talaq. The Talaq must
be only pronounced when the wife is in a state of purity. The husband must
abstain from sexual contact with his wife for the 'iddah (the waiting period)
which is three months.
Talaq Hasan: (approved). In this form divorce is pronounced in three
successive periods. After the first two the husband has the right to take his wife
back if they so desire to reunite but if he pronounces divorce a third time it
becomes irrevocable. The wife must marry another at this time.

2.
2. Talaq al-Bain: (irrevocable divorce). This is a divorce that with three
pronouncements in successive sittings or at the same sitting or before the
consummation of the marriage. There is no return allowed under these
circumstances unless the woman has an intervening marriage.

"Talaq is a right available mainly to the husband, but not to the wife. Even though
Islam allows divorce, the Prophet (pbuh) says: 'Of all things that Islam has
permitted, divorce is the most hated by Allah.' Hasty and wanton use of the right of
divorce is regarded as most condemnable in Islam." (3)
Surah Al-Baqarah 229: "A divorce is only permissible twice. After that the
parties should either hold together on equitable terms or separate with
kindness."
This could be likened to the "three strikes and you're out" policy.
Talaq Al-Bida'h (Divorce of Innovation)
This was a type of divorce that made its appearance after the death of the Prophet
(pbuh). It is where the man pronounces Talaq three times at one sitting or sends it in
writing to his wife. This is a sin against the precepts of the Shari'ah and was
severely denounced by the Prophet and Khalif `Umar would whip a husband who did
such a thing.
Khul'
This a divorce that is instigated by the wife. It is where she applies to a Qadi for
divorce.
Surah An-Nisa' 128 : If a wife fears cruelty or desertion on husband's part, there is
no blame on them if they arrange an amicable settlement between themselves; and
such settlement is best; even though men's souls are swayed by greed. But if you
practice self-restraint, Allah is well-acquainted with all that you do.
In the case of Khul', the wife must return all or part of themahr (the dower). A case
in point, where the woman would be allowed to keep the mahr, is what Imam Malik
said and that was if a wife was forced by her husband to enter Khul', she would be
entitled to get the mahr back.
The issue of divorce is covered in more detail in the book "Woman in Shari'ah
(Islamic Law)" by 'Abdur Rahman I. Doi.
1. IntroductionDivorce is called in Arabic as Talaq ( ). In its primitive sense the
word
The holy Prophet (PBUH) is reported to have said:
With Allah, the most detestable of all things permitted is Divorce.
A.A. Fyzee:
The reforms of Prophet Muhammad (PBUH) marked a new department in the history
of Eastern legislation. He restrained the power of divorce possessed by the
husbands; he gave to the women the right of obtaining a separation on reasonable
grounds; and towards the end of his life he went so far as practically to forbid its
exercise by the men without the intervention of arbiters or a judge.
Case Law Definition (divorce):
AIR 1932 Oudh 34
It is the freedom from the bondage of the marriage.
2. Classification:a By the death of spouse:
The death of the husband or the wife operates in law asdissolution of marriage.
When the wife dies, the husband may remarry immediately, but the widow has to
wait for a certain period before she can remarry. This period is called idda.

b Talaq:
The word talaq is usually rendered as repudiation. It comes from a root (tallaqa)
which means to release (an animal) from a tether. In law, it signifies the absolute
power that the husband possesses of divorcing his wife at all times.
The divorce operates from the time of pronouncement of talaq. The presence of the
wife is not necessary; nor need notice be given to her. In Hanafi law, no special form
is necessary whereas Ithna Ashari law insist on a strict formula being used.
In Ithna Ashari law, the pronouncement of talaq, in the Arabic tongue, must be
uttered orally in the presence and hearing of two male witnesses who are Muslims of
approved probity.
3. Types of TalaqThere are two types of Talaq:
i. Talaqu s-Sunna (Approved Form)
o Ahsan FormThe ahsan form consists of one single pronouncement in a period of
tuhr, followed by abstinence from sexual intercourse during idda.
Where the parties have been away from each other for a long time, or where wife is
old and beyond the age of menstruation, the condition of tuhr, is unnecessary.
A pronouncement of made in the ahsan form is revocable during idda. This period is
three months from the date of the declaration or, if the woman is pregnant, until
delivery. The husband may revoke the divorce at any time during the idda. Such
revocation may be by express words or by conduct. The divorce is revoked under
Hanafi as well as Ithna Ashari law.
After the expiration of the idda the divorce becomes irrevocable. A Muslim wife, after
divorce, is entitled to maintenance during the idda and so also her child, in certain
circumstances.
o Hasan FormThe hasan is also an approved form, but less approved than the first
ahsan. It consists of three successive pronouncements during three consecutive
periods of purity (tuhr). Each of these pronouncements should have been made at a
time when no intercourse has taken place during that particular period of purity.
The husband pronounce talaq on his wife for the first time during a period when wife
is free from her menstrual courses. The husband and wife had not come together
during this period of purity. This is the first talaq.
He resumes cohabitation or revokes this first talaq in this period of purity. Thereafter,
in the following period of purity, at a time when no intercourse has taken place,
husband pronounces the second talaq.
This talaq is again revoked by express words or by conduct, and the third period of
purity is entered into. In this period, no intercourse having taken place, husband for
the third time pronounces the formula of divorce.
The third pronouncement operates in law as a final and irrevocable dissolution of the
marital tie. The marriage is dissolved; sexual intercourse becomes unlawful; idda
becomes incumbent; remarriage between the parties becomes impossible unless wife
lawfully marries another husband, and that other husband lawfully divorces here
after the marriage has been actually consummated.
The Ithna Ashari and the Fatimid schools, however, do not recognize the remaining
two forms and thus preserve the ancient conventions of the times of the Lawgiver.
The second is a form in which the Holy Prophet (PBUH) tried to put an end to a

barbarous pre-Islamic practice. This practice was to divorce a wife and take her back
several times in order to ill-treat her.
ii. Talaqul - Bida (Disapproved Forms)
Following are the disapproved forms of Talaq.
o The triple declation:In this form three pronouncements are made in a single
tuhr, either in one sentence, e.g. I divorce thee triply or thrice; or in three
sentences, I drivorce thee, I drivorce thee. Such a talaq is lawful, although sinful, in
Hanafi law; but in Ithna Ashari and the Fatimid laws it is not permissible. This called
at-talaqul-bain, irrevocable divorce.
o The Single, irrevocable declaration:Another form of the disapproved divorce is
a single, irrevocable pronouncement made either during the period of tuhr or even
otherwise. This form is also called at-talaqu bain and may be given in writing. Such a
bill of divorcement comes into operation immediately and serves the marital tie. This
form is not recognized by the Ithna Ashari or the Fatimid school.
o Option of PubertyIf a Muslim minor has been married during minority by a
guardian, the minor has the right on attaining majority to repudiate such marriage.
This is called khiyar al-bulugh, the option of puberty. Such a minor may be given in
marriage either by the father or grandfather or by any other guardian.
In case of a girl married during minority, she is entitled to dissolution of her marriage
if she proves the following facts. According to Dissolution of Muslim Marriages Act of
1939, section 2(vii):
Firstly, that she was given in marriage by her father or other guardian.
Secondly, that the marriage took place before she attained the age of 15.
Thirdly, that she repudiates the marriage before she attained the age of 18.
Fourthly, that the marriage has not been consummated. Consummation of marriage
before the age of puberty does not deprive the wife of her option.
The right of repudiation is lost first, on consummation. It has been held, however,
that a wifes right is not determined by mere consummation if she was ignorant of
her right according to Tyabji.
Secondly, the right is also lost in the case of a female if on attaining puberty and on
being informed of the right, she does not repudiate the marriage within a reasonable
time. By the statute, the wife must exercise the option before she attains the age of
18.
o Talaq under compulsion or under the influence of intoxicationBy a peculiar
rule of Hanafi law, as distinguished from the Fatimid, Ithna Ashari or ShafeI law, a
divorce pronounced under compulsion or under the influence of intoxication is valid
and effective.
According to A.A. Fyzee:
The rule appears to be unjust, and should be abolished.
o IlaIn Ila the husband swears not to have intercourse with the wife and abstains
for four months or more. The husband may revoke the oath by resumption of marital
life. After the expiry of the period of four months, in Hanafi law the marriage is
dissolved without legal process, but in Itha Ashari and ShafiI law, legal proceedings
are necessary.
o ZiharIn Zihar, the husband swears that to him the wife is like the back of his
mother. If he intends to revoke this declaration, he has to pay money by way of

expiation, or fast for a certain period. After the oath has been taken, the wife has the
right to go to the court and obtain divorce or restitution of conjugal right on
expiation.
o Khul and MubaraaThe Fatawa Alamgiri lays down:
The woman can release herself form the tie by giving up some property in return in
consideration of which the husband is to give her a khula, and when they have done
this a talak ul-bain would take place.
The word khul means leterally to take off clothes and thence, to lay down ones
authority over a wife; and the word mubara denotes the act of freeing one another
mutually.
One of the earliest instances raising a case of khul is Moonshee Buzul-ul-Reheem v.
Luteefut-oon-Nissa, where their Lordships of the Privy Council says:
It appears that by the Muhammad Law divorce may be made in either of thow
forms: Talak or khula.
Form
In Hanafi law, the husband proposes dissolution, and the wife accepts it at the same
meeting. The proposal and acceptance need not be in any particular form. The
contract itself dissolves the marriage and operates as a single talaq-i-bain, and its
operation is not postponed until the execution of the khu-nama. In Ithna Ashari law,
as is to be expected, certain forms are to be strictly followed and witnesses are
required.
In khul the wife makes some compensation to the husband or gives up a portion of
her mahr; but this is not absolutely necessary. The Egyptian code of Hanafi Law, Art.
275, based upon the classical authorities, lays down: A khul repudiation can validly
take place before or after consummation by the wife.
Abu Hanifa holds that, in the absence of agreement, mahr is deemed to be
relinquished by the wife both by khul and by mubaraa.
Imam Abu Yusuf lay down that mahr is deemed to relinquish by mubaraa, but not by
khul.
Imam Muhammad holds that mahr is deemed to be relinquished neither by khul nor
by mubaraa.
Khul and mubaraa operate as a single, irrevocable divorce. Therefore, marital life
cannot be resumed by mere reconciliation; a formal remarriage is necessary.
In either case, idda is incumbent on the wife, and in the absence of agreement.
4. Dissolution by judicial processi Lian (Mutual Imprecation)
Divorce by mutual imprecation is mentioned in the Quran and is supported by the
traditions of the Holy Prophet (PBUH). It is reported that a man from the Ansar
accused his wife of adultery. The Holy Prophet (PBUH) thereupon asked them both to
take an oath; then he ordered them to be separated from each other.
The procedure of Lian may be described briefly as follows:
A husband accuses his wife of adultery, but is unable to prove the allegation. The
wife in such cases is entitled to file a suit for dissolution of marriage.
At the hearing of the suit, the husband has two alternatives:
a He may formally retract the charge.
b The husband may, however, not retract and, if he persists in his attitude, he is

called upon to make certain oaths. This is followed by oaths of innocence made by
the wife. After these mutual imprecations, the judge pronounces that the marriage is
dissolved.
c No appeal can be filed against the decree of the court on this ground i.e. lian.
5. Judicial Rescissiona Faskh
The word Faskh means annulment or abrogation. Hence it refers to the power of the
Muslim Qazi to annul a marriage on the application of the wife. The law of faskh is
founded upon the Quranic injunction.
Abdullah Yusuf:
The act, applies to every Muslim, to whatever school of law he belongs.
b The Dissolution of Muslim Marriages Act 1939:Section 2 lays down that even
a single ground mentioned in the
i. Missing HusbandThe wife is entitled to obtain in a decree for the dissolution of
her marriage if the whereabouts of the husbands have not been known for a period
of four years; but a decree passed on this ground will not take effect for a period of
six months form the date of such decree, and if the husband appears either in person
or through an authorized agent within that period and satisfies the Court that he is
prepared to perform his conjugal duties, the court must set aside the decree.
ii. Failure of maintainIf the husband has neglected or has failed to provide for the
wifes maintenance for a period of two years, Section 2(ii) has been the cause of a
difference of judicial opinion.
In Fazal Mahmud v. Ummatur Rahim, a Peshawar case, it was held that the section
does not abrogate the general principles of Islamic law; therefore, before a husband
can be said to have neglected or failed to provide maintenance, it must be shown
that the husband was under as legal duty to provide such maintenance.
Where the wife refuses to reside with her husband or fails to discharge her marital
obligations, without any reasonable cause, she can not claim maintenance, and
therefore she is not entitled to divorce.
The Singh High Court has taken a different view. In Nur Bibi v. Pir Bux (AIR 1950)
Sindh 8., it was laid down that where a husband has failed to provide maintenance
for his wife for a period of two years immediately preceding the suits, the wife would
be entitled to a dissolution of her marriage under section 2(ii) of the Act, in spite of
the fact that on account of her conduct in refusing to live with her husband, she
would not have been entitled to enforce any claim for maintenance against the
husband in respect of the period during which the husband has failed to maintain her.
The true rule appears to be:
o that the failure to maintain under the statute need not be willful; mere inability due
to, for instance, to poverty or even other causes, is sufficient.
o That the wife, willfully refusing to stay with the husband, would be out of court if
she proceeded under the section.
In Shafii law, apart from inability to maintain, as such, neglect or failure to
maintain is a good ground for the wife to dissolve her marriage.
iii. Imprisonment of husband
If the husband is sentenced to imprisonment for a period of seven years or more, no
decree can be passed until the sentence has become final.

iv. Failure to perform marital obligation

If the husband fails to perform without reasonable cause, his marital obligations for a
period of three years.
v. Impotence
It must be proved that the husband was important at the time of marriage, and that
he continues to be so; but before passing a decree on this ground, the court is
bound, on application by the husband, but not otherwise, to make an order requiring
the husband to satisfy the court within a period of one year from the date of such
order that he has ceased to be impotent. If the husband satisfied the court, within a
year, that he is no longer impotent, no decree can be passed.
A.A. Fyzee:
After this probationary year, if the incapacity of the husband continued, the
marriage would be dissolved.
The two chief differences are:
Firstly, that the ignorance of the wife regarding the impotency of her husband needs
not to be proved. She can obtain a divorce even if she knew of it.
Secondly, that the adjournment of the case for one year is not essential. It is only on
the application of the husband that an adjournment may be obtained. If no such
application is made, the decree dissolving the marriage can be passed without delay.
Thirdly, under the statute, the onus is thrown on the husband to prove that he is free
from the physical defect of impotence.
vi. Insanity, leprosy, venereal disease
If the husband (i) has been insane for a period of two years, or (ii) is suffering from
leprosy or (iii) a virulent venereal disease.
vii. Cruelty
If the husband treats the wife with cruelty, which means that he:
o habitually assaults her or makes her life miserable by cruelty or bad conduct even
if such conduct does not amount to physical ill treatment.
o Or associates with women of evil repute or leads an infamous life
o Or attempts to force her to lead an immoral life
o Or disposes of her property or prevents her from exercising her practice legal
rights over it
o Or obstructs her in the observance of her religious profession or practice
o Of if he, having more wives than one, does not treat her equitably in accordance
with the Quranic injunctions.
These rules may be found in Abdul Rahmans (Institutes of Mussalman Law) and
another book on Fiqh, Ruddul-Muhtar.
Incompatibility of temperaments, dislike or ill will, are not sufficient grounds under
the Muhammadan law for obtaining dissolution. In a learned and exhaustive
judgment Sayeeda Khanam v, Muhammad Sami (PLD 1959 (WP) Lahore 113, F.B),
Cornelius C.J. discussed this question authoritatively and dealt with the nature of
incompatibility; divorce and khul; meaning of shiqaq, citing iv. 34,35.
In Balqis Fatima v. Najm-ul-Ikram Qureshi (PLD 1959 (WP) Lahore 566) in which the
facts were strongly in favour of the wife, the Maliki view that in a fit case the
arbitrator (hakams) had the power to dissolve the marriage was adopted and the law
molded more in consonance with the spirit of the Quran, as interpreted in modern

times.
The wife is entitled to dissolution of marriage on restoration of what she received in
consideration of marriage if the judge apprehends that parties will not observe the
limits of God.
viii. Apostasy, Conversion
A Muslim may renounce Islam, and this is known as apostasy (ridda); or a nonMuslim may embrace Islam and this is called conversion. According to the general
principles of Islamic law, a person who embraces Islam is immediately governed by
Islamic law. But a man who renounces Islam suffers greatly under civil as well as
criminal law.
If a Muslim husband who renounces Islam is an apostate and as such his marriage
with his Muslim wife is dissolved ipso facto (by the fact).
According to Syed Ameer Ali, when a Muslim married couple abandon Islam and
adopt another faith, their marriage is not dissolved but remains intact.
ix. Wife renounces Islam
o the mere renunciation of Islam by a Muslim wife does not by itself dissolve her
marriage.
o The above rule does not apply to a woman converted to Islam from some other
faith who re-embraces her former faith.
o The act of 1939 gives a remedy, the statute provides that apostasy by itself does
not dissolve the marriage, unless it is that a woman re-embraces her former faith.
x. Wife embraces Islam
o The conversion of a non-Muslim wife to Islam does not ipso facto dissolve her
marriage with her husband, and the ancient procedure of offering Islam to the
husband and on his refusal obtaining a dissolution of marriage as laid down in the
text.
o It was held inter alia (among other things) that, immediately upon the conversion
of Madad Bibi to Islam, her marriage with her hindu husband was dissolved and her
marriage to Baqar Shah was lawful; wherefore her children by him were legitimate
(Faiz Ali Shah v. Ghulam Akbar Shah, PLD 1952, Azad Jammu and Kashmir, 32).
6. Effects of Dissolutioni. Matrimonial intercourse
After the dissolution is effective, matrimonial intercourse between the parties
becomes unlawful. Nevertheless, the parties may, in certain circumstances, lawfully
remarry.
ii. Remarriage, reconciliation.
A divorced couple can not always remarry.
iii. Fresh marriage
where the marriage was consummated, the wife has to wait till the expiration of her
idda in order to be able to remarry. The husband if he has four wives, must wait
until the completion of the divorced wifes idda.
Where the marriage was not consummated, the parties can remarry immediately,
without waiting for the expiry of the idda.
iv. Dower
If the marriage was consummated, the whole dower is immediately due; if not, half
the dower is payable.

v. Maintenance
The husband has to provide maintenance to the wife during idda.
vi. Inheritance
So long as the divorce is revocable one spouse can inherit from the other; but when
the divorce becomes irrevocable, the rights of inheritance terminate inter se.
7. Procedure of Talaq (Divorce)a. Notice
The husband will send notice:
i. to the Chairman
ii. to the wife
b. Form of Notice
Notice shall be in writing.
c. Purpose of Notice
The purpose of notice is to inform about the dissolution of marriage.
d. Time for granting Notice
Notice shall be given at the time when the husband has pronounced divorce.
e. Reconciliation between the parties
The chairman is required to bring about reconciliation between the parties for this
purpose he is to give notice to the parties to nominate their representatives.
However, he can not compel any person to appear before him.
f. Effectiveness of Divorce
Divorce would not become effective unless and until period of ninety days has
elapsed with effect from the date of receipt of notice of divorce by the chairman of
the union council and by the wife. The expiry of 90 days is an essential.
g. Divorce to pregnant woman
Divorce to pregnant woman shall be affected by the delivery of the child.
h. Remarriage of the same parties
Nothing shall debar a wife whose marriage has been terminated by Talaq effective
from remarriage the same husband, without an intervening marriage with a third
person, unless such termination is for the time so effective.
i. Revocation of Divorce
The husband can revoke the divorce before the expiry of ninety days.
j. Punishment
Whoever contravenes the provisions shall be punishable with simple imprisonment
for a term which may extend to one year or with fine which may extend to five
thousand rupees or with both.
k. Commencement of Iddat
Iddat means waiting period. The most approved definition of iddat is the term by the
completion of which a new marriage is rendered lawful. The observance of iddat is
necessary where cohabitation has taken place.
Prof. N.J. Coulson:
Idda is a period of waiting imposed upon a wife after the termination of her
marriage.
i. In case of divorce
o If consummation of marriage has taken place and the marriage is dissolved by

divorce, the duration of iddat is three courses, or if the woman is pregnant, till
delivery.
o Woman has not to observe the period of iddat if marriage was not consummated.
In such case, she can marry immediately after the divorce.
ii. In case of death of husband
o The period of iddat commences from the date of death of her husband. She is
bound to observe the period of iddat for four months and ten days or if the woman is
pregnant, till delivery.
o If the marriage was not consummated, iddat has to be observed in the case of
death of husband, but not in the case of divorce.
iii. In case of termination of Muta
On the expiry of the period, where there has been cohabitation, a short idda of two
courses is prescribed; however, if there has been no consummation, no idda is
necessary.
Divorce is of three kinds: the Ahsan, or most laudable, the Hasan, or laudable, and
the Bid'a or irregular.
Talaq Ahsan or the most laudable[1] divorce is where the husband repudiates his
wife by making one pronouncement within the term of Tahr (purity. when the woman
is not passing through the period of menses) during which he has not had sexual
intercourse with her, and she is left to observe her 'Idda.
Talaq Hasan or laudable divorce is where a husband repudiates[2] an enjoyed wife by
three sentences of divorce, in three Tuhrs
Talaq Bid'a or irregular divorce is where a husband repudiates his wife by three
divorces at once. According to the majority of the jurists, the Talaq holds good, but it
is against the spirit of the Shari'ah, and, therefore, the man who follows this course
in divorce is an offender in the eye of Islamic Law.
[1] deserving or worthy of praise; admirable; commendable
[2] Refuse to accept
3.

Faskh (Judicial Separation)

Nature and Description of Faskh
Faskh literally means annulment. It differs from talaq and other forms of dissolution of
marriage in legal structure and its effects.
Faskh occurs in different forms. Some forms need decree of the court and some other do
not need it. For example if the husband fails to provide maintenance to the wife, she may
petition for judicial separation. On the other hand, if it is established that spouses are within
prohibited degree to marry each other, then it will not need decree of the court. They will

instead be automatically separated upon knowing the fact of prohibition.

Faskh requires ruling by the court in the following instances:
Failure of the husband to provide maintenance
Harm of wife
Desertion by the husband or his imprisonment
Separation due to Khula if husband does not agree to her request
Disease or defect in the husband or his impotency
Option of puberty
Mutual imprecation

Faskh does not require decree by the court in the following instances:
Invalidity of contract
Existence of in-law relationship between the spouses
Separation due to ila
Apostasy of wife or husband

The annulment of marriage in these cases takes place by the operation of law. It does not
need pronouncement of repudiation by the husband or the order of the court.