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    Saturday, 31 December 2016

    Different Modes of Talak and Divorce

    A Muslim of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause.
    A talak may be effected in any the following ways

    i. Talak Ahsan

    This consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat.

    A talak is the ahsan mode becomes irrevocable and complete on the expiration of the period of iddat.

    ii. Talak Hasan

    This consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs.

    A talak in the kasan mode becomes irrevocable and complete on the third pronouncement, irrespective of the iddat.

    iii. Talak-ul-Bidaat or Talak-i-Badai

    This consists of
    a)  three pronouncement made during a single tuhr either in one sentence, e.g “I divorce three thrice” or on separate sentence, e.g., “I divorce there, I divorce there, I divorce there”; or
    b). A single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage e.g, “I divorce three irrevocably”.

    A talak is the baddai mode becomes irrevocable immediately it is pronounced, irrespective of iddat.
    Although the power to give divorce belongs primarily to the husband, he may delegate the power to the wife or a third person, either absolutely or conditionally, and either for a particular period or permanently. The person to whom the power is thus delegated may then pronounce the divorce accordingly. A temporary delegation of the power is irrevocable, but a permanent delegation may be revoked.

    Various Kinds of divorce

    The various kinds of divorce are as under

    i. Ila

    Divorce by ila is a kind of constructive divorce. If a husband, having attained puberty, swears by God not to have sexual intercourse with his wife for period of four months or more or for unspecified period, he is said to make ila.

    If the husband having made ila, abstains from intercourse during the period comprised in the ila, the marriage is dissolved with the period comprised in the ila, the marriage is dissolved with the same leal results as if there had been one irrevocable pronouncement of law made by the husband.

    ii. Zihar

    Zihar is a form of inchoate divorce. If the husband compares his wife to his mother or any other female within prohibited degree, the wife has a right to refuse herself to him until he has performed penance. In default of expiration by penance, the wife has the right to apply for a judicial divorce.

    iii. Khula

    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. Failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce, though the husband may sue the wife for it.

    iv. Mubara’at

    A mubara’at divorce, like khula, is 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 desire a separation, the transaction is called khula. When the aversion is mutual and both the sides desire a separation, the transaction is called mubara’at. The offer in a mubara’at at 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 talak-i-bain as in the case of khula.

    v. Lian

    The wife is entitled to sue for a decree on the ground that her husband has falsely charged her with adultery. If the charge is proved to be false, she is entitled to a decree of dissolution of the marriage.

    Divorce under Shia Law

    IN the case of Maryam Bano vs Hussain Ali, it was held that Talak according to Shia Law must be orally pronounced by husband in presence of two witnesses and wife in a set from of Arabic words. Written divorce not recognized except in certain circumstances not existing in the present case. Shia Muslim, unable to pronounce talak in presence of wife in prescribed manner, same can be pronounced in presence of two male witnesses and communicated to her in writing. Nothing or record to show that husband was incapable of pronouncing of Talak in prescribed from before his wife or that talak was at all pronounced in prescribed from before witnesses. It was held that the talak was not valid. 
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