Talaq in Muslim Personal Law: Introduction, Modes, Essentials, And Recent Developments

Talaq in Muslim personal law is the most well-known form of dissolution of marriage, but divorce can also be affected through other means, such as Ila and Zihar- which differ from talaq only in form, but not the substance. The present article, “Talaq in Muslim Personal Law: Introduction, Modes Essentials, And Recent Developments,” will discuss the different modes of talaq and essentials for effecting a valid talaq under Shariat law. Relevant case-law will also be discussed relating to talaq. The article will also explore the recent developments as regards talaq in contemporary times, including the triple talaq judgment.

I. Introduction: Talaq in Muslim Personal Law

What is the concept of divorce in Muslim personal law?

“With Allah, the most detestable of all permitted things is divorce…“[1]

Despite this precept of the Prophet, in modern India, divorce in its uninhibited form is recognized in Muslim personal law. According to the aforementioned quotation from a hadith[2] (source from Islamic scripture), divorce as a practice, is included in the category of permissible acts, and while the divorce was considered to be the most despicable of the permissible things, it has been observed by Islamic scholars that “…yet this despicable thing has existed in abundance.”[3]

In Muslim law, divorce or dissolution of marriage takes place either on the death of either party to the marriage, or, at the instance of one of the parties, or both the parties.[4] It may be noted that in contrast to Hindu law, death dissolves a marriage under Muslim law.[5]

In Muslim law, divorce may be studied under the following three heads:[6]

1. Unilateral divorce

1. At the instance of the husband: A husband may divorce his wife by repudiating the marriage without giving any reason.[7] Pronouncement of such words which signify his intention to disown the wife is sufficient.[8] Generally, this is done by talaq. But he may also divorce by Ila, and Zihar which differ from talaq only in form, not in substance.
2. At the instance of the wife: The wife may do so by the practices of talaaq-i-tafweez and lian.

2. Divorce by mutual consent or mutual agreement

A wife cannot divorce the husband of her own accord. She can divorce the husband only when the husband has delegated such a right to her or under an agreement. Thus, dissolution of marriage by mutual agreement may be done by the practices of khula and mubarat.

3. Judicial divorce

Judicial divorce is the right of the wife to give divorce under the Dissolution of Muslim

Marriages Act, 1939 (‘DMA, 1939’). Prior to 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the husband that is, on the basis of terms under personal law.[9] However, after the passage of the DMA, 1939, several other grounds were laid down, on the basis of which a Muslim wife could obtain a divorce decree passed by the order of the court to cause dissolution of her marriage.

The first two heads are known as extra-judicial divorce, while the last head is judicial divorce. This is based on whether conventional legal or judicial means are utilised for divorce or whether personal law practices are utilised for the divorce to be affected.

The present paper will discuss the meaning, mode and essentials of talaq in Part I, and recent developments in talaq shall be discussed in Part II.

II. Talaq: Meaning, Modes And Essentials

Who does Muslim law practices such as talaq, apply to?

Before a discussion on talaq and its different aspects, it is important to understand to whom such provisions apply to. Muslim law is the lex fori of Indian, Pakistan Bangladesh Courts in all matters which fall within the scope of the Muslim Personal Law (Shariat) Application Act, 1937 (‘the Shariat Act, 1937’).[10] This is provided by Section 2 of the Shariat Act, 1937 which deals with the application of personal law to Muslims. According to this provision:[11]

“Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religion endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).” [emphasis provided by the author]

Thus, it is clear that Muslim personal law and Shariat are used interchangeably in family law and personal law contexts. Moreover, it is Shariat that is the rule of decision in the dissolution of marriage, including talaq.

What is the status of marriage in Muslim personal law?

In order to better appreciate the effect of talaq upon a husband and wife, it is relevant to touch upon the essentials of marriage or nikah in Islamic tradition. Nikah is an Arabic term used for marriage and as such, means “contract”.[12] The Quran specifically refers to marriage as “mithaqun Ghalithun” also translated as “a strong agreement”.[13]

In essence, a nikah is a legal contract between a bride and bridegroom as part of an Islamic marriage. Thus, marriage in Islamic traditions is the basis of a contract, and not a sacrament, as is the case in Hindu personal law.[14] The Karnataka High Court had upheld that Muslim marriage is a contract unlike Hindu marriage in a 2011 case while rejecting the plea of a Muslim man to not pay maintenance to his divorced wife was being heard before a single judge.[15]

What is the meaning of the term ‘talaq’?

“Men are maintainers of women, because Allah has made some of them to excel others and because they spend of their wealth (on their maintenance and dower)” [16]

The above verse is often relied upon to establish the husband’s authority to pronounce the unilateral divorce. Hence, when the husband exercises his right to pronounce divorce, technically this is known as talaq.[17]

According to Legal Services India, talaq in its most ancient sense implies dismission: “setting free”, “letting loose”, or taking off any “ties or restraint”.[18] Thus, in the context of Muslim personal law, it means liberation from the bonds of marriage and not from any other bonds. In a legal, technical sense it refers to the dissolution of marriage by the husband using appropriate words as provided in relevant religious custom. Thus, talaq may be defined as the repudiation of marriage by the husband in accordance with the procedure laid down by personal law.[19]

Among the Sunni sect, talaq may be express, implied, contingent, constructive or even delegated. In contrast, the Shia sect recognizes only the express and the delegated forms of talaq.[20]

What are the essentials for a valid talaq?

1. Capacity

Every Muslim husband who possesses sound mind and has attained the age of puberty, possess the capacity to pronounce talaq upon his Muslim wife. However, if a husband is a lunatic where he is of sound mind in certain periods and in unsound minds in other periods, then talaq pronounced by him during “lucid interval” is valid.[21] The situation is different in case the Muslim husband is insane and has no guardian: then the Qazi or a judge has the right to dissolve the marriage in the interest of such a husband.

It may be noted that, it is not necessary for a Muslim husband to give any reason for his pronouncement of talaq upon his wife.[22] However, a Muslim husband who is a minor or of unsound mind cannot pronounce it. The effect of talaq by a minor or of a person of unsound mind will be void and ineffective.[23] Not even the guardian’s minor can pronounce talaq on behalf of his/her ward.

2. Free Consent

Except under Hanafi law, which is one of the four major Sunni schools of legal reasoning and positive law, the consent of the husband in pronouncing talaq must be done under free consent to be held as valid under Shariat law.[24] However, according to Hanafi law, a talaq even if pronounced by a Muslim man under compulsion, coercion, undue influence, fraud and voluntary intoxication etc., remains valid and dissolves the marriage.

3. Involuntary intoxication

As mentioned above, free consent is a point of contention as a factor of capacity in talaq practices between Hanafi and non-Hanafi schools. However, in case of the effect of talaq pronounced under forced or involuntary intoxication, there is a near-unanimous acknowledgement that such talaq is void even under the Hanafi law and other schools of Sunni law.[25] Similarly, the Shia law also states that a talaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication by a Muslim husband unto his Muslim wife is void and ineffective.[26]

4. Formalities

According to the Sunni schools of law, talaq may be delivered either in oral form or in written form. That is, talaq may be simply uttered by the husband or he may specifically write a talaaqnama. According to custom, there is no specific formula or use of any particular word is required to constitute a valid talaq. In other words, any expression which clearly indicates the husband’s desire to break the marriage is sufficient.

5. Presence of witnesses

In general, a pronouncement of talaq need not be made in the presence of the witnesses.[27]

According to Shias, talaq must be pronounced orally, except where the husband is unable to speak. Interestingly, if the husband can speak but gives it in writing, the talaq, such form of pronouncement of talaq is void under Shia law. This is because, under Shia traditions, talaq must be pronounced in the presence of two witnesses.[28]

6. Express words

As mentioned in the point on formalities, the exact words of a pronouncement of talaq is not required or important. However, the words of talaq must clearly indicate the husband’s intention to dissolve the marriage.[29] If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.

What are the different modes of talaq?

When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The express talaq, falls into two categories:

• Talaaq-i-sunnat

Talaaq-i-sunnat is considered to be in accordance with the diktats of Prophet Mohammad. Of these talaaq-i-ahasan is the most approved.

• Talaaq-i-ahasan (Most approved)

Talaq-i-ahsan is the most proper form of talaq.[30] It involves a single pronouncement made during the tuhr period.[31] If the talaq is in written form, it need not be given in the tuhr period. Abstinence from sexual intercourse during the iddat period is required, during which time the talaq is revocable. It is relevant to note that Cohabitation is ipso facto, implied revocation. After divorce, a woman cannot remarry for three months, which is known as the iddat period. After observing iddat period, the woman can marry another man, while the man can marry another woman even during the iddat period.[32]

• Talaaq-i-hasan (Less approved).

Talaaq-i-hasan is also an approved form, involving three pronouncements during successive tuhr periods. Similar to the most approved method, there must be abstinence from sexual intercourse until the third pronouncement.

• Talaaq-i-biddat

According to Dr. Diwan (2018), this form of talaq came into vogue during the second century of Islam.[33] It has two forms:

(i) the triple declaration of talaq made in a period of purity, either in one sentence or in three, (ii) the other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise. It is important to note that this type of talaq is not recognized by the Shias. In fact, this form of divorce is generally condemned and is considered heretical, because of its irrevocability. Triple talaq has also been criminalised in Indian and any such talaq affected by a Muslim husband is deemed void per the Muslim Women (Protection Of Rights On Marriage) Act, 2019.[34]

Are there other modes of judicial separation under Shariat?

Yes they include: ila, zihar, Talaq-e-tafwid, khula and mubarat. As they are not the primary subject of this article, this section will deal with them in brief:

1. Ila (Vow of Continence):

This form involves the husband taking a vow not to cohabit with the wife. If he does not cohabit with her for four months, it does not amount to divorce but creates a right for the wife to file for judicial separation. Ila is not practiced in India.

2. Zihar (injurious Assimilation):

It is a form of inchoate divorce.[35] If the husband compares his wife to any of his female relations within prohibited degrees (sister, mother, etc), the wife has a right to deny him sexual intercourse until:

1. The husband observes fast for a period of two months, or,
2. He provides food to at least sixty people, or,
3. He frees a slave.

If he does not perform penance, she has the right to a divorce.

Muta marriage (practiced among Shias) admits no other sort of divorce may be dissolved by zihar.

3. Talaq-e-tafwid

This is also known as delegated divorce. A husband can delegate his right to pronounce talaq to his wife or a third person absolutely or conditionally, temporarily or permanently. A temporary delegation is irrevocable, a permanent delegation is revocable.[36] While ordinarily, only the husband may pronounce talaq under Muslim law, an agreement before or during the marriage that the wife may also divorce, is valid provided it is reasonable.[37]

Mohommad Khan v. Shahmali (AIR 1972 J&K): there was a pre-nuptial agreement according to which the defendant agreed to live in the plaintiff’s parental house and if he would leave that house, he would pay a certified sum to the plaintiff. Breach of this condition will operate as divorce. The condition was not unconscionable and opposed to public policy, violation of such term would operate as the divorce between the husband and wife.

4. Khula and Mubara’at (mubarat)

By this form, the wife offers consideration in exchange for release from marriage. Acceptance of the consideration dissolves the marriage, even if the consideration is not paid (though the husband has the right to sue for breach). It is irrevocable. When both agree to separate, it is mubarat. The wife is bound to observe iddat after khula. Mubara’at. This is separation by mutual consent, without the intervention of the court.

Khula and Mubarat operate as a single, irrevocable divorce. Therefore, marital life cannot be resumed by mere reconciliation; a formal marriage is necessary.

Case-Law and Recent Developments

It is important to note that judicial Precedents are not easily applied to Muslim personal law because the court system is hesitant to interpret the Shariat or the doctrines of the Quran as they are based on Muslim personal law customs and traditions. In Furzund Hussein v. Janu Bibee^[38], the plea was for relief of restitution of conjugal rights to which the wife’s defence was that of divorce. Finally, it was held that “the decree should simply declare that the plaintiff is entitled to the restitution of conjugal rights and that the defendant …be directed to go to her husband’s house.”[39]

In the court’s observations, it was stated that the presence of the wife is not necessary for talaq, but the husband must name his wife and communicate his intention to divorce her expressly (saheeh) and not ambiguously (kinayat). Thus, the circumstances surrounding talaq have been contentious even in the 19^th century and judicial interpretation reflects that.

In Mohammad Khan v. Shah Mali,[40] The wife did not want to live with her husband’s parents but rather, with her own parents. They agreed that if the husband stopped staying with the wife’s parents, they would divorce. This was held to be against public policy.

More recently in Amma Khatoon v. Kashim Ansari[41], the Jharkhand High Court held that an “irretrievable breakdown of marriage” was recognized as a valid ground for divorce under Muslim law.

Recent Developments

The most recent and striking development of the judicial intervention in the interpretation of Muslim personal law was in the case of Shayara Bano v. Union of India and Ors,[42] popularly known as the Triple Talaq case. Herein, a five-judge bench of the Supreme Court declared the practice of triple talaq (also known as talaaq-i-biddat) as unconstitutional, being violative of Article 14 of the Constitution with regard to Muslim wives.[43]

In this case, the petitioner filed a writ petition against a divorce affected against her by her Muslim husband using the method of triple talaq. The petitioner also pleaded for the practice of triple talaq (talaq-e-biddat) polygamy, and nikah-halala to be held as unconstitutional as they were violative of the fundamental rights of Muslim women as enshrined in Part III of the Constitution, namely Articles 14, 15, 21, and 25.

The All-India Muslim Personal Law Board (AIMPLB) were consulted on these issues by the Supreme Court and invited them to present written submissions on the issues of talaq-e-biddat, nikah-halala, and polygamy.

The AIMPLB contended that uncodified Shariat law could not be subject to constitutional judicial review, and that these were essential Islamic practices constitutionally protected under Article 25. However, it is important to note that Section 2 of the Shariat Act, 1937 does refer to and enumerates certain practices include ‘dissolution of marriage’ and ‘talaq’ and hence technically the contention that the triple talaq is not codified in some form in the Shariat Act, 1937 and is not subject to any judicial scrutiny, is fully acceptable.

“All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”[44]

Article 13(1) [in italics above] states above the practice would be implicated due to the 1937 Act being considered a law in force as mentioned under Article 13(1) of the Constitution. Therefore the practice of triple talaq or talaaq-i-biddat was liable to be struck down in case of any inconsistency with Part III of the Constriction. Therefore the court declared the practice void and unconstitutional.[45]

Thereafter, the Muslim Women (Protection Of Rights On Marriage) Act, 2019 was passed by Parliament. In the words of the Press Information Bureau, “The Muslim Women (Protection of Rights on Marriage) Act, 2019 declares the instant divorce granted by the pronouncement of talaq three times as void and illegal. It provides for imprisonment for a term up to 3 years and fine to the husband who practiced instant Triple Talaq.”[46]

Conclusion

The above article has discussed talaq as a practice, its mode, essentials and relevant-case law as applicable in India.

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^[1] See: Partial Translation of Sunan Abu-Dawud, Book 6, Number 2173, Available here

[2] See: Partial Translation of Sunan Abu-Dawud, Book 6, Number 2173, Available here

[3] Dr. P. Diwan, Muslim Law in Modern India, 13^th ed., 2018.

[4] Ibid.

[5] Supra, at note 3.

[6] Supra, at note 3.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Supra, at note 3.

[11] Section 2, Muslim Personal Law (Shariat) Application Act, 1937.

[12]Supra, at note 3.

[13] Ibid.

[14] Ezazur Rehman vs. Saira Banu, WP 3002/2015.

[15] Ibid.

[16] Surat An-Nisa [4:34], the Noble Quran, Available here

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20]Supra, at note 3.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25]Supra, at note 3.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Supra, at note 3.

[31] Tuhr is known as the purity period between two menstrual cycles for a woman.

[32] Supra, at note 3.

[33] Ibid.

[34] Factsheet on the Muslim Women (Protection Of Rights On Marriage) Act, 2019, Press Information Bureau of Government of India, (04/11/2021), Available here

[35] Supra, at note 3.

[36] Ibid.

[37] Ibid.

[38] (1879) ILR 4 Cal 588

[39] Ibid.

[40] 1972 JKLJ 8.

[41] 2001 (49) BLJR 1228.

[42] AIR 2017 9 SCC 1 (SC).

[43] Factsheet on the Muslim Women (Protection Of Rights On Marriage) Act, 2019, Press Information Bureau of Government of India, (04/11/2021), Available here

[44] Article 13(1), Constitution of India, 1950.

[45] Supra, at note 42.

[46] Supra, at note 34.

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