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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