Talaq is an Arabic word and its literal meaning is ‘to release’. Under Muslim law, Talaq means repudiation of marriage by the husband. As a mode of divorce, Talaq is peculiar because a Muslim husband has an unrestricted right to divorce his wife without giving any reason. Muslim law does not require the existence of any fault or matrimonial offence as an excuse for Talaq.
The Muslim concept of divorce is that where it is impossible for the spouses to live together, they must separate peacefully. The law gives to the husband an absolute authority to terminate the marriage by pronouncing Talaq because in a society dominated by males, the conjugal happiness primarily depends upon the efforts of the husbands. Whenever a husband finds that the marriage cannot be continued happily (either because of the misconduct of the wife or because of his own fault) he is empowered to dissolve the marriage.
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But this absolute authority of pronouncing Talaq should not be misused by the husband. In Islam “Talaq is permitted only when the wife by her conduct or her words does injury to the husband or happens to be impious.”
The Islamic policy has never been to confer an absolute authority of Talaq upon a husband to be misused by him. But unfortunately, the unrestricted right of Talaq has been misunderstood and Islamic guidelines for it have been ignored by the society and the courts of law.
The result is that there is no legal control over the unfettered right of a Muslim husband to dissolve the marriage by uttering few words. However, an indirect check upon this right is the obligation of a husband to pay the dower upon the dissolution of a marriage.
There are various modes of pronouncing Talaq. But, in every form of Talaq the following essential elements must be present.
(1) Capacity:
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Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce Talaq. It is not necessary for him to give any reason for his pronouncement. If a husband has attained the age of puberty and possesses a sound mind, he can pronounce Talaq against his wife whenever he likes. This absolute right is given to him by Muslim law itself and does not depend on any condition or cause.
A husband, who is minor or is of unsound mind, cannot pronounce Talaq. Talaq by minor or insane husband is void and ineffective. However, if the husband is lunatic the Talaq pronounced by him during ‘lucid interval’ is valid. The guardian cannot pronounce Talaq on behalf of a minor husband.
Although a guardian has right to contract minor’s marriage, but he has no such right in respect of Talaq. According to Tyabji, guardian of a husband of unsound mind may pronounce Talaq on behalf of such insane husband if such Talaq is in the interest of the husband.
When insane husband has no guardian, the Kazi or a Judge has right to dissolve the marriage in the interest of such husband.
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Regarding the capacity of the wife against whom divorce is pronounced, Ameer Ali observes:
“…. When she is of such tender age (minor) as to be unable to comprehend the legal consequences flowing from the act of repudiation, or does not possess discretion, a valid Talaq cannot be affected against her”.
In view of the opinion of this learned jurist, it may be said that a Talaq pronounced against a minor wife is void and ineffective. Similarly, as the wife’s knowledge of the proceedings of Talaq is necessary, it may be stated that Talaq pronounced against an insane wife of unsound mind is also void and ineffective.
(2) Free Consent:
Except under Hanafi law, the consent of the husband in pronouncing Talaq must be a free consent. Under Hanafi law, a Talaq pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc. is valid and dissolves the marriage. As discussed earlier, the basis of this apparently unreasonable Hanafi rule is the tradition of the Prophet where he is reported to have said thus:
“There are three things which whether done in joke or earnest, shall be considered as serious and effectual; one, marriage, the second, divorce, and the third, taking back.”
Involuntary Intoxication:
Talaq pronounced under forced or involuntary intoxication is void even under Hanafi law. Where a husband is made to drink some intoxicant (wine) by force or takes it as drug and then pronounces Talaq, the Talaq is not valid under the Hanafi law.
Shia Law:
Under the Shia law (and also under other schools of the Sunnis) a Talaq pronounced under compulsion, coercion, undue influence, fraud or voluntary intoxication is void and ineffective.
Supreme Court on Triple Talaq under Intoxication:
Recently (on 21st April, 2006) the Supreme Court held that where the husband pronounced a ‘triple talaq’ in the condition of intoxication and thereafter realizing his mistake agreed to live with wife and children; then, the religions-head (Maulvee) of the community has no right to issue a Fatwa (religions-order) for separating the couple; and issue a Fatwa (religious-order) to ex-communicate the couple. In the year 2004, Najma Bibi’s husband pronounced ‘talaq’ thrice in the condition of intoxication.
But, realizing his mistake the husband agreed to live with Najma together with his three children. However, the Maulvees (head of the community) of Bhadrak (of Orissa) have issued a Fatwa (religious order) that the couple cannot live together without observing the ritual of Halala (procedure laid down under Muslim personal law for the re-marriage of a divorced wife). Najma Bibi refused to observe the Halala. Accordingly, the couples were forced to live separately.
A bench comprising Justice Ruma Pal, Justice С. K. Thakkar and Justice Markandey Katju ordered the Orissa Government to provide ‘police protection as may be required by the couple’ so that they may peacefully live with their children. The Apex Court “strongly criticised the Мufti-driven (i.e. religious order issued by Maulvees) action” and observed that “in a secular country like India, communities should behave properly.
(3) Formalities:
(a) According to Sunni law a Talaq may be oral or in writing. Talaq may be simply uttered by the husband or he may write a Talaqnama.
(b) No specific formula or use of any particular word is required to constitute a valid Talaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient to dissolve the marriage through Talaq.
(c) A Talaq whether oral or in writing, need not be made in presence of the witnesses. Under Sunni law, Talaq without witnesses is valid.
Shia Law:
(a) According to Shia law, the Talaq must be pronounced orally, except where the husband is unable to speak. If the husband has capacity to utter the words but gives it in writing, the Talaq is void and ineffective under Shia law.
(b) Shia law provides that Talaq must be pronounced in the presence of two competent witnesses. Every male Muslim of sound mind, who has attained the age of puberty, is comment to act as witness. However, in place of one male, two adult female Muslims of sound mind may be substituted to act as witnesses. A Talaq without witnesses or in presence of incompetent witnesses is void under Shia law.
(c) Shia law requires the use of specific Arabic words in the specific formulae in the pronouncement of Talaq.
(4) Express Words:
The words of Talaq must clearly indicate the husband’s intention to dissolve the marriage. Therefore, the pronouncement must be express. If Talaq is in express terms, proof regarding the husband’s motive or intention is not necessary.
Where the husband clearly uses the word Talaq he cannot say that he did not mean divorce. But, if the pronouncement is not express and is ambiguous and confusing then it is necessary to prove that husband actually intends to dissolve the marriage.
For example, where a husband addresses his wife as “You are my cousin, the daughter of my uncle, if you go” or, “I give up all relations and would have no connection of any sort,” it is then necessary to prove that husband intended to divorce the wife because these expressions are not clear in their meaning. If the words of Talaq are not express, it is duty of the court to lay emphasis upon the intention of the husband rather than to rely upon the apparent words.
In a case from Peshawar High Court, there was a quarrel between two brothers over a bottle of honey. One of them declared in an agitated mood that “if he could not take back the honey from the other, his wives would be considered divorced”. It was held by the court that the declaration by that brother cannot be treated as words of Talaq because the intention was to emphasise the efforts of taking back the honey and not to divorce the wives.
Presence of Wife:
Presence of wife at the time of pronouncement of Talaq is not necessary. A Talaq pronounced in the absence of the wife is lawful and effective. But the wife must be specifically referred in the pronouncement. Where a husband has more than one wife, he must specify and name the wife against whom he is pronouncing Talaq.
Notice of Talaq:
For the validity of Talaq, its notice to wife is not necessary. It is not necessary for the husband to communicate to wife the pronouncement immediately. The Talaq becomes effective from the moment of its pronouncement and not from the date on which the wife comes to know about it. Under Muslim law, even if the Talaq has not been communicated to the wife, the Talaq is valid and effective. However, knowledge of Talaq is required for the claim of dower and for claim of maintenance from former husband.
Conditional and Contingent Talaq:
A Talaq may either be absolute (i.e. unconditional) or subject to a condition or contingency. An uncertain future event is called contingency. Where the Talaq is without any condition it takes effect immediately. A conditional or contingent Talaq becomes effective only upon the fulfilment of the condition or happening of the future event. Conditional and contingent Talaq is recognised only under Sunni law; Shia law does not recognise conditional or contingent Talaq.
Under Sunni law a conditional or contingent Talaq is valid. But the conditions must not be un-Islamic. If a condition is against the principles of Islam, the condition is void and a Talaq cannot take place. For example, if the condition is that whenever the wife would demand her Prompt Dower there would be Talaq by husband, the condition is void and Talaq does not take place.
Where the condition is valid, a lawful Talaq is effected only upon the fulfillment of the condition or happening of the specified event. In a conditional or contingent Talaq the marriage dissolves as soon as the condition is fulfilled or the event takes place; further pronouncement is not necessary.
For example, in Bachchoo v. Bismillah, the husband promised, in writing, to pay a maintenance allowance to the wife for certain period. On failure of the husband to do so, the writing was to operate as Talaqnama. It was held by the Allahabad High Court that it was a conditional Talaq. The condition was nonpayment of maintenance allowance to the wife during the agreed period. On default of the husband to pay maintenance allowance to wife, the condition was fulfilled. Thus the Talaq became effective without any further pronouncement.
Contingent Talaq:
Mirjan Ali v. Maimuna Bibi, is an interesting case on contingent-Talaq. The facts of the case were as under: “There was an agreement between husband and wife under which if the wife lived with her parents for a period of 90 days, or more, and the husband failed to take her back within the said period of 90 days, it would result in the husband’s irrevocable Talaq and the wife would be free to remarry. The husband visited the place of the wife’s parents within the stipulated period of 90 days and asked his wife to accompany him.
The wife refused to go with him on the ground that now she had divorced the husband under the authority given to her by the husband. It was argued by the wife that the agreement was a delegated Talaq and under this delegated authority she had divorced her husband. It was held by the Assam High Court that the agreement written by the husband was not a delegated Talaq and she had no authority to divorce the husband.
The Court further observed that the abovementioned agreement was that of- a contingent Talaq and the contingency was ‘failure of the husband to take her back within 90 days’. As the contingency did not happen and husband went to take her back within the said period, the Talaq by husband could not take place. As such, the wife was bound to accompany the husband.
In Bilqees Begam v. Manzoor Ahmed, the husband used to object his wife’s frequent visits to her female-friends. Once, there was a quarrel between husband and wife on this matter and in anger, husband declared that if she went again to her female-friend’s house there would be Talaq by him.
From that date, the wife never went there. The Karachi High Court (Pakistan) held that husband’s declaration was a conditional Talaq. But, since the condition was not fulfilled after the declaration, therefore, Talaq has not taken place.
Shia law:
Under Shia law, conditional or contingent Talaq is void and ineffective. Even if the condition or contingency is lawful, ‘the Talaq is not valid. In other words, under Shia law a Talaq must be unconditional.