Draw a distinction between any one of the following:- 1. Ahsan Talak and Hasan Talak 2. Hiba and Hiba-bil-iwaz 3. Stridhan and Dower

Question: Draw a distinction between any one of the following:- [Punj JS 2007]
1. Ahsan Talak and Hasan Talak
2. Hiba and Hiba-bil-iwaz.
3. Istridhan and Dower

Find the question and answer of Muslim Law only on Legal Bites. [Draw a distinction between any one of the following:- 1. Ahsan Talak and Hasan Talak 2. Hiba and Hiba-bil-iwaz 3. Stridhan and Dower]

Talaq-e-ahsan (Ahsan Talak)

‘Talaq-e-ahsan’ is a single pronouncement of ‘talaq’ by the husband, followed by a period of abstinence. The period of abstinence is described as ‘iddat’. The duration of the ‘iddat’ is ninety days or three menstrual cycles or three lunar months.

If the couple resumes cohabitation or intimacy, within the period of ‘iddat’, the pronouncement of divorce is treated as having been revoked. Therefore, ‘talaq-e-ahsan’ is revocable. Conversely, if there is no resumption of cohabitation or intimacy, during the period of ‘iddat’, then the divorce becomes final and irrevocable, after the expiry of the ‘iddat’ period.

It is considered irrevocable because, the couple is forbidden to resume marital relationship thereafter, unless they contract a fresh ‘nikah’ (marriage), with a fresh ‘mahr’.

However, on the third pronouncement of such a ‘talaq’, the couple cannot remarry, unless the wife first marries someone else, and only after her marriage with the other person has been dissolved (either through ‘talaq’ - divorce, or death), can the couple remarry. Amongst Muslims, ‘talaq-e-ahsan’ is regarded as - ‘the most proper’ form of divorce.

Talaq-e-Hasan (Hasan Talak)

‘Talaq-e-hasan’ is pronounced in the same manner, as ‘talaq-e-ahsan’. Herein, in place of a single pronouncement, there are three successive pronouncements. After the first pronouncement of divorce, if there is the resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked.

The same procedure is mandated to be followed, after the expiry of the first month (during which marital ties have not been resumed). ‘Talaq’ is pronounced again.

After the second pronouncement of ‘talaq’, if there is the resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is significant to note, that the first and the second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, ‘talaq’ pronounced by the husband becomes ineffective, as if no ‘talaq’ had ever been expressed.

If the third ‘talaq’ is pronounced, it becomes irrevocable. Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third ‘tuhr’ (period of purity), as soon as the third declaration is made, the ‘talaq’ becomes irrevocable, and the marriage stands dissolved. The wife has to observe the required ‘iddat’ (the period after divorce, during which a woman cannot remarry. Its purpose is to ensure, that the male parent of any offspring is clearly identified).

And after the third ‘iddat’, the husband and wife cannot remarry, unless the wife first marries someone else, and only after her marriage with another person has been dissolved, can the couple remarry. The distinction between ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ is, that in the former there is a single pronouncement of ‘talaq’ followed by abstinence during the period of ‘iddat’, whereas, in the latter, there are three pronouncements of ‘talaq’, interspersed with abstinence. As against ‘talaq-e-ahsan’, which is regarded as ‘the most proper’ form of divorce, Muslims regard ‘talaq-e-hasan’ only as ‘the proper form of divorce’.

Hiba and Hiba-bil-iwaz

The Muhammadan Law defines the Hiba or gift as a transfer of a determinate (amount of) property without any exchange from one person to another and accepted by or on behalf of the latter. Thus, it is clear that under Muslim law, a gift is called Hiba. When a Muslim transfers his property through a gift, the transfer is called Hiba. The religion of the person to whom the gift is made is not relevant. If the transferor is Muslim, the gift is Hiba.

Under Muslim law, for the validity of a gift, the following formalities must have complied with that are the following:

i. Clear and unequivocal declaration by the donor

ii. Acceptance by the donee

iii. Delivery of possession.

Hiba-bil-iwaz - Hiba-bil-iwaz is a gift for consideration. It has almost all the incidents of a contract of sale. `Hiba-bil-iwaz' has as per Asaf A.A. Fyzee has two separate parts; i.e. (a) Hiba (original gift by the donor to the donee) and (b) an iwaz (return gift by the donee to the donor).

In short, the `Hiba-bil-iwaz' means a gift in return. Therefore, when both things i.e. Hiba (Gift) and Iwaz (return) is completed the transaction is called `Hiba-bil-iwaz'. For example, `A' makes a gift of a cow to `B' and later B makes a gift of a horse to `A'. If `B' says that the horse was given to him by `A' by way of return or exchange, then both are irrevocable. The law requires the completion of all the formalities of a valid Hiba in such transaction.

In the case of Rohini Bukhish v. Muhammad Hassan, (1888) 11 All. 15, it was held by the court that the fundamental conception of `Hiba-bil- Iwaz' in Mohammedan Law is that is a transaction made of two separate acts of the donation i.e. it is a transaction made up of mutual or reciprocal gift between two persons each of whom is alternatively the donor of one gift and the donee of the other. The matter was described by Bailee in these words, `The transaction which goes by the name of `Hiba-bil-iwaz' in India is therefore, in reality not a proper Hiba-bil-iwaz of either kind but a sale and has all incidents of the latter contract.

There are two conditions for a valid `Hiba-bil-iwaz':

(1) Actual payment of consideration (Iwaz) on the part of donee; and

(2) A bona fide intention on the part of the donor to divest himself in present of the property and to confer it upon donee.

A and B, two Muslim brothers are tenants-in-common. A died leaving B and his widow W. After A's death B executed a deed whereby he granted two of the villages to W, and W executed a writing whereby in consideration of the grant to her. She gave up her claim to her husband's estate in favour of B. The transaction was hiba-bil-iwaz and was valid though possession was not delivered. (Muhammad Faiz Ahamad Khan v. Gulam Ahamad Khan, 3 All 494).

Therefore, the absence of consideration is not necessary for such Hiba but the amount, whatever it is, must be actually and bonafide paid.

3. Stridhan and Dower

Under Muslim Law, Mehr (dower) means money or property which the wife is entitled to receive from the husband in consideration of the marriage but this consideration is not the same as that of the civil contract. Dower is an obligation imposed upon the husband as a mark of respect for the wife. The major object of the dower is to provide a wife with her subsistence after the dissolution of her marriage so that she may not become helpless after the death of the husband or termination of a marriage by divorce.

On the other hand, the word Stridhan literally means women’s property. ‘Stri’ means women and ‘dhan’ means property together constitute the word Stridhan. It includes all types of movable and immovable property such as ornaments, cash, deposits, etc. Stridhan implied absolute ownership of property for women. She had full rights over property when she is a maiden or a widow.

Stridhan is classified into 2 types:

1. Gifts received from parents and in-laws out of love and affection.

2. All other gifts from strangers (husband has the power to use this stridhan equally). On her death, it passes to her heirs.

But there are certain restrictions made on women on the disposal of such property obtained as stridhan. After marriage, the stridhan was classified into two heads Saudayaka and Non – Saudayaka. Saudakia means a gift made through love and affection to a woman at, before, or after her marriage by her parents and their relations or by her husband and his relations and over which she has the complete right of alienation. Non – Saudayaka means gifts to a woman from strangers and property acquired by mechanical arts etc. It refers to those gifts over which the woman has no rights of alienation without the consent of her husband.

In the case of Kailash Vati v. Ayodhya Prakash, 1971 CLJ 109 (P & H), Chief Justice Sandhawalia, while recognizing the distinction between Stridhan and Dowry, used both the words interchangeably as if one meant the other. He opined as follows:

“The Dowry Prohibition Act 1961 does not bar traditional giving of presents at or about the time of the wedding. Thus such presents or dowry given by the parents is therefore not at all within the definition of the statute”.

He further went on to state that:

“Law, as it stands today, visualizes complete and full ownership of her individual property by a Hindu wife and in this context, the factum of marriage is of little or no relevance and she can own and possess property in the same manner as a Hindu male …Once it is held that a Hindu wife can own property in her own right, then it is purely a question of fact whether the dowry or traditional presents given to her, were to be individually owned by her or had been gifted to the husband alone…..Once it is found that as a fact that these articles of dowry were so given to her individually and in her own right, then I am unable to see how the mere factum of marriage would alter any such property right and divest her of ownership either totally or partially”.

Here the presumption is that whatever property the bride receives as “gifts” stays under her control in the matrimonial home and that she can share it with her husband or the rest of the family by exercising her discretion. This is contrary to what happens in a reality where the bride does not have any control over her belongings or her essentials.

It was only in the case of Pratibha Rani v. Suraj Kumar, AIR 1985 S.C 628, the Supreme Court tried to arrive at a definition of “Stridhan” by enlisting the following exchanges as constituting stridhan

1. gifts made before the nuptial fire

2. gifts made at the bridal procession, i.e. while the bride is being led from her residence of her parents to that of her husband.

3. Gifts made in token of love, that is, those made by her father-in-law and mother-in-law and those made at the time of the bride making obeisance at the feet of elders.

4. Gifts made by the father of the bride

5. Gifts made by the mother of the bride

6. Gifts made by the brother of the bride.

This judgment further clarified that “The Hindu married woman is the absolute owner of her Stridhan property and can deal with it in any manner she likes. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress but he is morally bound to restore it or its value when he is able to do so” where Fazl Ali J. further observed that

“I am amazed to find that so deeply drowned and inherently are some of the High Courts concepts of matrimonial home qua Stridhan property of married woman that they refuse to believe that such properties which were meant for the exclusive use of the wife, could also be legally entrusted to the Husband and his relations. He specifically stated that the concept that the “Stridhan” of the woman becomes the Joint property of the two houses as soon as she enters her matrimonial house is in direct Contravention of Hindu law.”

The differentiation of the two terms is towards ensuring that in case of the future breakdown of marriage, the woman can at least retrieve gifts received as Stridhan. Thus even if at the time of marriage or during the marriage “gifts” should be given under the cover of “Stridhan” so that she will at least have a right to claim them back.

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