Question: A Muslim wife misbehaved with her husband. She was addressed thrice and the word "TALAQ" was pronounced by her husband. Thereupon she apologized for her misbehaviour. They continued cohabitation. A son was born to the woman from him. He got admitted to the school by his father as his own son and reared up as such. After the death of man, his full-brother laid exclusive claim to his estate. Decide the suit. Defences raised that divorce was revoked and that the paternity of the son...
Question: A Muslim wife misbehaved with her husband. She was addressed thrice and the word "TALAQ" was pronounced by her husband. Thereupon she apologized for her misbehaviour. They continued cohabitation. A son was born to the woman from him. He got admitted to the school by his father as his own son and reared up as such. After the death of man, his full-brother laid exclusive claim to his estate. Decide the suit. Defences raised that divorce was revoked and that the paternity of the son was acknowledged. [DJS 1980]
Find the question and answer of Muslim Law only on Legal Bites. [A Muslim wife misbehaved with her husband. She was addressed thrice and the word "TALAQ" was pronounced by her husband. Thereupon she apologized for her misbehaviour...A son was born... After the death of man, his full-brother laid exclusive claim to his estate. Decide the suit.]
Answer
Under Muslim Law, one of the forms of Talaq (Divorce) is 'Talaq-ul-biddat'. Such a form of Talaq is recognized under Sunni Law but is considered to be an irregular form of Talaq. Under Shia law `Talaq-ul-biddat' is not recognized. In order to be in this form of Talaq following requirements are required:
(a) Three consecutive pronouncements of Talaq made during single period of purity (Tuhr) in one sentence.
(b) A single pronouncement of Talaq made during `tuhr' indicating an intention to dissolve the marriage.
Talaq in the form of `Talaq-ul-biddat' becomes irrevocable immediately when it is pronounced irrespective of the fact that the period of iddat has been undergone or not. Under the Talaq-ul-biddat, once a complete and definite divorce has taken place parties to the marriage cannot be remarried without the formality of the woman marrying another man and being divorced from him.
In the present case at hand, the Muslim wife was granted a divorce in the form of a "Talaq-ul-biddat" by her husband, who repeated the word "Talaq" three times to her. As stated above, such divorce becomes irrevocable immediately on the pronouncement of Talaq three times in one sentence. The husband cannot revoke such a Talaq even after his wife apologizes for her inappropriate behaviour. Therefore, the husband and wife's marriage was dissolved by divorce in the case at hand.
Parties can only get remarried if the wife has already gone through the Iddat period, married to another man, and been divorced by both of them. However, in this instance, the parties failed to complete this formality, and as a result, their marriage was declared null and void by the husband's Talaq.
However, the facts of the case show that after the Muslim wife apologized for her inappropriate behaviour, the parties continued to live as husband and wife and cohabitated, and a son was born to the woman from him. Muslim husband, who had raised the son as his own, demonstrated his paternity to gain admission for the son to the school.
When a Muslim husband passed away and his brother sued, claiming sole ownership of his estate, it called into question the son's legitimacy. As was already mentioned, there had been an irrevocable Talaq between Muslim husband and wife; as a result, even if the parties to the Talaq cohabit and a son is born, the son will not be considered a legitimate son in the eyes of the law. Because the Muslim law governing paternity recognition does not permit legitimation recognition. It does not permit the legitimization of an illegitimate child; it only allows for the declaration of legitimacy. Therefore, if a son is an illegitimate son, the fact that his Muslim husband raised him as his father and had him admitted to school does not give him legitimacy.
Therefore action brought by the brother of the deceased Muslim husband will succeed. The facts of the present case are similar to the case Rashid Ahmad v. Anisa Khatoon, AIR 1932 PC 25, wherein their lordships observed:
"According to Hanafi law of Sunnis `Husband' could not marry with his wife after the pronouncement of Talaq unless another marriage of such wife had intervened. It was therefore held that the fact of subsequent treatment of divorced wife as wife and birth of a child during the subsequent period cannot undo the divorce and make the child legitimate. Thus, a child born after the triple divorce was held to be illegitimate."
