Distinguish between Talaq-ul-biddat and Talaq-ul-sunnat and state when 'Talaq' becomes irrevocable.

Question: Distinguish between "Talaq-ul-biddat" and "Talaq-ul-sunnat" and state when 'Talaq' becomes irrevocable. [BJS 1987]

Find the question and answer of Muslim Law only on Legal Bites. [Distinguish between "Talaq-ul-biddat" and "Talaq-ul-sunnat" and state when 'Talaq' becomes irrevocable.]

Answer

The Hanafis recognized two kinds of talaq, namely, (1) talaq-ul-sunnat, that is, talaq according to the rules laid down in the sunnat (traditions) of the Prophet: and (2) talaq-ul-bidaat or Triple talaq , that is, new or irregular talaq.

Talaq-ul-Sunnat is of two kinds, namely, (1) ahsan and (2) hasan. The arabic word ahsan means 'best' or as Wilson puts it 'very proper'. In arabic hasan means 'good' and Wilson translates it as 'proper'. In the case of talaq ahsan and talaq Hasan, the husband has an opportunity of reconsidering his decision, for the talaq in both these cases does not become absolute until a certain period has elapsed, and the husband has the option to revoke it before then.

On the other hand, the essential feature of a talaq-ul-bidaat is its irrevocability. One of the tests of irrevocability is the repetitive three times of the formula of divorce within one tuhr. But the triple repetition is not a necessary condition of talaq-ul-bidaat, and the intention to render a talaq irrevocable may be expressed even by a single declaration. Thus if a man says:

"I have divorced you by a talaq-ul-bain (irrevocable divorce), the talaq is talaq-ul-bidaat or talaq-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 itself as the intention to effect an irrevocable divorce."

When talaq becomes irrevocable

(1) A talaq in the ahsan mode becomes irrevocable and complete on the expiration of the period of iddat.

(2) A talaq in the hasan mode becomes irrevocable and complete on the third pronouncement, irrespective of the iddat.

(3) A talaq in the badai mode becomes irrevocable immediately after it is pronounced, irrespective of the iddat. As the talaq becomes irrevocable at once, it is called talaq-i-bain, that is, irrevocable talaq.

Moreover, a talaq rajai can be revoked by conduct before it becomes irrevocable. The talaq becomes irrevocable and complete on the expiration of the period of iddat. It is wrong to contend that the only manner of revocation of such a talaq is either by the resumption of sexual intercourse or by the pronouncement of specific words of revocation in the presence of two witnesses.

It is to note that until a talaq becomes irrevocable, the husband has the option to revoke it which may be done either expressly, or impliedly by resuming sexual intercourse.

Recently, the High Court of Kerala in Kunhimohammed Kutty v. Ayishakutti, LNIND 2010 Ker 203, held that

"a mere pronouncement of talaq by the husband or merely declaring his intentions or his acts of having pronounced talaq is not sufficient and does not meet the requirements of law. In every such exercise of the right to talaq the husband is required to satisfy the preconditions of arbitration for reconciliation and reasons for talaq. Conveying his intentions to divorce the wife is not adequate to meet the requirements of talaq in the eyes of law. All the stages of conveying the reasons for divorce, appointments of arbitrators, the arbitrators resorting to conciliation proceedings so as to bring reconciliation between the parties, and the failure of such proceedings or a situation where it was impossible for the marriage to continue are required to be proved as conditions precedent for the husband's right to give talaq to his wife. A mere statement made in writing before the court, in any form, or in oral depositions regarding the talaq having been pronounced sometimes in the past is not sufficient to hold that the husband has divorced his wife and such a divorce is in keeping with the dictates of Islam."

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