Unilateral Divorce in Muslim Law

Consistently with the secular concept of marriage and divorce, the law insists that at the time of Talaq the husband must pay off the settlement debt to the wife and at the time of Khula she has to surrender to the husband her dower or abandon some of her rights, as compensation.”

EXPRESS DIVORCE AND ITS FORMS

When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The express talaq falls into two categories: (i) Talaq-ul-sunna (approved), and (ii) Talaq-ul-badai or talaq-ul-bidda (unapproved).

The talaq-ul-sunna has two forms: (i) ahsan and (ii) hasan. The former is most approved and the latter is approved.

The talaq-ul-bidda, also has two forms: (i) the triple divorce or three declarations at one time and (iii) one irrevocable declaration.

The basic difference distinction between the talaq-ul-sunna and talaq-ul-bidda is, that in the former case the pronouncement of divorce is revocable while in the latter, it is irrevocable. This seems to be the reason why the talaq-ul-sunna is considered to be approved divorce, and the talaq-ul-bidda is unapproved.

1) TALAQ-UL-SUNNA

(i) AHSAN TALAQ

Talaq-ul-sunna in the ahsan form is the most approved method of repudiation.At a time when the wife is not menstruating, in what is known as the tuhr period, the husband pronounces a single talaq. If he wishes the divorce to be final, he must then refrain from sexual intercourse with the wife he has divorced during the iddat period of three menstrual cycles. At the end of the iddat period, the marriage is terminated. The dissolution of marital tie arises directly from the unilateral talaq pronounced three months earlier. This form of repudiation provides an opportunity for revocation, as the husband can take back his wife at any time during this period. The ahsan formula is therefore categorised as revocable (raji). Revocation can be implied by conduct; resumption of intercourse clearly constitutes sufficient evidence of an intention to revoke.  The ahsan talaq, provided it is not the third of such ahsan talaq, is referred to as having smaller or lesser finality and is called the ‘little method’ (sughra), compared to the greater finality of three divorces, the ‘great method’ (kubra). The practical impact of this distinction is very important and explains the stress laid on the difference between the two categories. Where only one pronouncement of talaq has taken place and the divorce becomes final through the expiry of the iddat period and non-resumption of cohabitation, lesser finality and the man has the capacity to remarry his wife by contracting another marriage with her after the expiry of the iddat without an intervening marriage. In general, the practical implications of the ‘greater finality’ are so much more serious that it is to be avoided.

(ii) HASAN TALAQ

The talaq-ul-sunna in the hasan form, like the ahsan, is classified as an approved or good method of repudiation, accepted by all schools. However, this form is not considered as accepted as the ahsan form, mainly because the hasan forms leads to ‘greater finality’. The procedure is that the husband repudiates his wife three times. The first talaq is given during a tuhr period and the husband then pronounces two subsequent talaqs during the following two tuhr periods. As soon as the husband pronounces the third talaq, this divorce becomes irrevocable. This form of talaq is also revocable, but only until the third pronouncement. In other words, in the hasan form the marriage does not come to an end until the pronouncement of the third talaq. The third pronouncement, however, ends the talaqs. The wife then has to observe an iddat period after the third pronouncement; but the husband cannot revoke his decision to divorce the wife and if he wishes to remarry her, he can only do so if she concludes a contract of marriage with another man which is consummated and is itself validly dissolved.

2) TALAQ-UL-BIDDA

The talaq-ul-bidda came into vogue during the second century of Islam. Ameer Ali relates the historical background thus: “The Omayyid monarchs finding that the checks imposed by the Prophet on the facility of repudiation interfered with the indulgence of their caprice, endeavoured to find an escape from the strictness of law and found…a loophole to effect their purpose. In Hanafi law, the ‘triple talaq’ or talaq-ul-bidda may be used by the husband. Although disapproved by classical jurisprudence, it has the advantage, for the husband at least, of simplicity and finality. Doi (1984, p 179) says it “is usually done by ignorant Muslims to satisfy their selfish motives” and emphasises that it involves a heinous sin against the precepts of the Shari’a. However, such a divorce is legally valid, except for Shi’ites and the moral disapproval of this form has not stopped it from becoming popular in many parts of the Muslim world, for the obvious reason that it suits men. The talaq-ul-bidda has two forms: (i) the triple declaration of takaq made in a period of purity, either in one sentence, such as, “I divorce thee triply or thrice,” or in three such as, “I divorce thee, I divorce thee, I divorce thee”. The moment the pronouncement is made, the marriage stands dissolved irrevocably.  (ii) the other form of talaq-ul-bidda constitutes a single irrevocable pronouncement of divorce made in a period of purity or even otherwise. This also results in the irrevocable dissolution of marriage. The triple pronouncement is not an essential part of the talaq-ul-bidda; if the intention is clear, the divorce will take place. Thus, if a husband says to his wife, “I had divorced thee in talaq-ul-bidda or talaq-ul-bain form”, that is enough and an irrevocable divorce will result.

This form of divorce in condemned. It is considered heretical, because of its irrevocability. The talaq-ul-bidda which is “good in law though bad in theology” is the most common mode of divorce prevalent in India.

IMPLIED AND CONTINGENT DIVORCE

Sometimes the words used in the pronouncement of talaq are not clear, for instance, when a husband says to his wife, “I give up all relations and would have no connection of any sort with you”, or “I have released thee from being my wife”, in such cases divorces will be implied if the intention to divorce is proved. According to Ameer Ali, “The word talaq in its different grammatical forms is regarded as express and other expression which may be construed as meaning repudiation of the marriage by the husband, but are also capable of other meanings, are regarded as allusive.  When express words are used no question can arise as to what was meant, but allusive words require construction”.

When a husband pronounces divorce so as to take effect on the happening of a future event, the talaq is known contingent, and it becomes effective on the happening of the event. The Shias do not recognise the implied and contingent talaq.

In the extra-judicial forms of Muslim divorce, the husband’s right of talaq can be either suspended or delegated. In the suspended or conditional talaq, the repudiation occurs automatically after a particular event. The most example of this form of delegated talaq occurs when the husband contracts a marriage with a second wife, in which case the second marriage will activate a suspended talaq. Stipulations generally are not very common, however. Interestingly, they have changed in nature, as detailed recent research confirms. If any particular condition is agreed upon, then to that extent the wife will have some protection, in that she can be sure to be released from a disagreeable marriage. The right of talaq in this situation is no longer the right of the husband, since it was the woman who inserted the stipulation.

TALAQ-I-TAFWID

The delegated talaq (talaq-i-tafwid) is also well recognised by all schools of law. In this form the Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power, absolutely or conditionally, temporarily or permanently. A permanent delegation of power is revocable, but a temporary delegation of power is not. The delegation must be distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. This has been thus illustrated by Ameer Ali: if a husband says, “choose thyself” or “choose a repudiation”, and if the wife answers. “I choose” or “I have chosen myself” or “I have chosen a talaq”, it would be sufficient. But if he were merely to say, “Choose” and the wife reply, “I have chosen,” this is not sufficient, and there is no talaq.

The power of talaq may be delegated to the wife, and as Fyzee observes, “This form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without intervention of any court is now beginning to be fairly common in India”. This form of delegated divorce is usually stipulated in pre-nuptial agreements. In a case under a pre-nuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s house without paying the expenses. The wife exercised the right and divorced herself. It was held that it was a valid exercise of the power of talaq delegated to her.

In the talaq-i-tafwid, though it is the person to whom the power is delegated who exercises the power of divorcing, the divorce in the eyes of the law is made by the husband. Thus, when a wife is delegated the power of divorce, and in exercise of that power she pronounces the divorce, the power is exercised on behalf of the husband who had delegated it to her, and therefore, in law it is a talaq of the wife by the husband.

CAPACITY TO DIVORCE

“Every divorce takes place except that pronounced by a minor”. Thus, said Prophet Mohammad. Muslim law lays down that a Muslim who is minor and of unsound mind has no capacity to pronounce divorce. It appears that age of minority is to be determined by Muslim law, which means that a Muslim male who has attained puberty can pronounce divorce. A talaq pronounced by a person of unsound mind or below the age of puberty is void. Such a talaq cannot become effective even if the guardian accords his consent.

The second requirement of capacity is that the person must be of sound mind.  A talaq pronounced by an idiot, lunatic or person of unsound mind is void. However, a person of unsound mind may validly pronounce talaq during lucid intervals. Muslim law authorities go to the extent of holding that a pronouncement of divorce made by a person who suffers from a disease which dulls his mind and makes him almost like person of unsound mind will not be valid.

Dumb Person. –A talaq pronounced by a dumb person is valid, provided it is expressed in positive and intelligible signs. Shia law lays down that a talaq pronounced by a dumb husband by signs sufficiently and clearly indicating to divorce is valid.

It appears that under Sunni law a person who is born deaf and dumb may pronounce talaq by intelligible signs or in writing. But a person whose dumbness is not congenital but supervening can do so only by a written deed.

Better opinion seems to be that when a dumb person is literate, he should pronounce divorce in writing.

Person in Delirium, in Faint or Sleep or Unconsciousness. –All schools of Muslim law agree that a talaq pronounced by a husband who is in delirium, in faint, in sleep or unconsciousness is totally invalid.

Talaq under Compulsion. –The most curious aspect of Hanafi law of divorce is that a talaq pronounced under compulsion or under intoxication is valid. So is a talaq pronounced to please one’s father. According to the Hedaya:

The foundation of this is that the man alluded to has the choice of two evils, one, the thing with which he is threatened or compelled, and the other, divorce upon compulsion and viewing both, he makes choice of that which appears to him the easiest, namely, divorce and this proves that he has an option, though he be not desirous that its effect should be established, or in other words, that divorce should take place upon it.

According to the Fatwa-i-Alamgiri--

A talaq pronounced by an adult and a sane Muslim male is valid even though pronounced under compulsion or even when it is uttered in sport or jest or inadvertently by a mere slip of tongue.

Thus it has been held that a talaq is valid even though given to satisfy some one, a relation or a friend. Similarly, when a Muslim, under compulsion, appoints another person to pronounce talaq on his behalf and if that person, in exercise of the authority so conferred, pronounced talaq on the wife, the talaq will be valid.

According to Ameer Ali for the validity of a talaq pronounced under compulsion, the following three conditions are necessary:-

(i) The compeller must be in a position to do what he threatens to,

(ii) there is a strong possibility of threat being carried out, and

(iii) the threat involves some imminent and serious danger to the man.

Mere trifling injury is not sufficient to establish compulsion. The question is, whether talaq is under compulsion against public policy. It appears that in Rashid v Anisa, the Privy Council said that since such a divorce is valid under Muslim law, the question of public policy did not arise.

A divorce under compulsion becomes valid, the moment it is pronounced.

It is also a curious aspect of Muslim law that when a talaq under compulsion is in writing is not valid. Similarly, a talaq obtained from a Muslim under detention or after giving him thrashing is not valid. In Nur Bibi v Ali Ahmed, the Allahabad High Court held that an acknowledgement of talaq under compulsion would be invalid if it was proved to be untrue. Confirmation of such a talaq is also no valid. On the other hand, a written compromise signed by the husband and wife addressed to the wife would amount to valid talaq, as it is not just an acknowledgement but pronouncement of talaq. But these are not cases of compulsion.

Shia, Shaifi and Maliki law. –The Shia law does not recognise talaq pronounced under compulsion, or by fraud or under the influence of liquor or drugs. The Malikis and the Shaifis also do not recognise talaq pronounced under compulsion or threat.

Talaq under Intoxication. –Under the Hanafi law there is some controversy as to whether a talaq pronounced under the influence of intoxicants is valid.

But when talaq is pronounced under involuntary intoxication, or in a state of perturbation, there is difference of opinion. One opinion that talaq pronounced in a state of voluntary intoxication will not be valid, if it caused by taking something for a necessary purpose, such as when opium or wine is taken as a medicine.

Under Shia law, talaq under the influence of intoxicants whether consumed voluntarily or involuntarily, is not to be valid.

It seem under Shafii law, talaq pronounced under a state of voluntary intoxication is valid.

Talaq in Jest or by Mistake. –The prophet said, “there were three things which whether done in joke or earnest, shall be considered as serious and effectual: one marriage, second divorce, third taking back.” From this tradition a rule of law is deduced that a divorce pronouncement in jest or sport is valid. The juristic principle on which this rule is based is the hypothesis that talaq from the point of view of the woman is restoration of her liberty. Thus, is Muslim law talaq pronounced in sport, in jest or inadvertently or by mere slip of tongue or in talking facetiously, is valid. Such is the ramification of this principle that a talaq pronounced carelessly is also valid.

The Shias, the Shafiis, the Malikis and Hanbals do not recognise this form of divorce. The Shia law insists that for effecting talaq free will and intention to divorce are essential.

Under the Hanafi law, talaq pronounced by a Muslim under a mistaken belief that the woman is not his wife, while in fact she is, is valid. On the other hand, if a Muslim under a mistaken belief that the woman whom he is pronouncing a divorce is his wife, while in face she is nobody to him, then his wife does not stand divorced. Similarly, a person pronounces talaq on a woman who is not his wife, but subsequently, he marries her, no divorce takes place.

Talaq during Sleep or Unconsciousness. –All schools of law agree that a talaq pronounced by one who happens to be delirious, or in faint or asleep, unconscious or in stupor or lost in astonishment is invalid.  Such a talaq will not become valid if such a person ratifies it on recovering full sense.

EFFECT OF TALAQ

Regarding the effect of talaq, an important point is the exact moment in time when the divorce takes effect. This moment differs depending on the form of talaq. In the ahsan form, the talaq is effective at the expiry of the iddat period. In the hasan form, it is effective on the third pronouncement, while in the al-bidda form, is effective at once. As soon as the divorce is irrevocable, the marital relationship is over. Indeed, any intercourse at this stage will be viewed as zina. A revocable divorce, of course, is subject to the iddat period. On important effect which arises as a result is that if the party dies during this period of iddat, the rights of inheritance are preserved. Inheritance rights inter se do not exist after the pronouncement of talaq-al-bidda, even if one of the parties dies during the iddat period following such divorce. The iddat period following the talaq-al-bidda and the third pronouncement of the talaq-ul-sunna in the hasan form enables the wife to obtain maintenance from her former husband. A woman has no capacity to contract herself in marriage to another man during the iddat period.

FORMALITIES OF TALAQ

There are no fixed formalities in the classical Sunni Law, laying down the manner in which the repudiation is pronounced. There is no requirement of witnesses and the wife need not be even be present. The talaq can either be oral or in writing and any words can be used. In one old Indian case, the husband said to his wife, “Thou art my cousin, daughter of my uncle, if thou goest.” Evidence was presented to the Court, and accepted, that this statement meant that if or when the wife left the house, she would be no other relation to the man than a cousin, which she was, indicating clearly that she would no longer be regarded as his wife. In this case, therefore, effect was given to the intention of the husband to pronounce a talaq-ul-bidda. On the other hand, the Shias insist that divorce must be pronounced orally and in the presence of two competent witnesses. The specific formula of divorce must be pronounced. The Sunnis permit divorce in writing, too, but the Shias insist that talaq should be oral, unless the husband is physically incapable of pronouncing it orally. The Ithana Ashris also require that certain Arabic words must be used in the formula of divorce, though mispronunciation is tolerated, and vernacular is permitted if the husband does not know Arabic language.  In contract with this position, in the Hanafi law a divorce pronounced by way of jest is valid.  Indeed, in this law even a divorce pronounced when drunk, or by mistake, or under duress is valid. The justification for this rule in Hanafi law is that this law looks to the act rather that the intent. Among the Hanafis, the talaq may be oral or in writing, so long as the intention is clear, no specific form is necessary. Any words may be used. Thus, the words like these: “Thou are divorced”, or “I have divorced thee”, are enough and will result in the dissolution of marriage. When the words clearly denote talaq, the intention of the husband is inconsequential. Thus, when a man says to his wife, “I have divorced you”, either in her presence, or in her absence, it means that the man has divorced his wife. Not merely this, in the proceedings for maintenance, or in the written statement in the wife’s suit for restitution of conjugal rights or in proceedings under section 125 of the Code of Criminal Procedure, 1973, if the husband takes the plea that he had pronounced talaq on his wife, that is enough and results in divorce. If the words used in the pronouncement of talaq are not clear or ambiguous, then the proof of intention is necessary. Thus if words like, “Thou art my cousin, my uncle’s daughter, if thou goest” or “I give up all relations and will have no connection of any sort with you” are used, the proof of intention to divorce is necessary. It is not necessary that the talaq should be pronounced in the presence of wife; not a notice of divorce is required. It is also not necessary that it should be addressed to her.  Bu the wife must be named, if she is not named, talaq will not be valid. Although for validity of talaq the presence of the wife is not necessary, for certain purposes communication of talaq is required. Since, on divorce, dower becomes payable and the wife has to undergo the iddat, the communication of talaq is necessary. The period of limitation for the purpose of recovery of her deferred dower will start running only from the date when the communication of talaq reaches her.  She can also claim maintenance from her husband till such time the communication of talaq reaches her.

TALAQ IN WRITING

As has been stated earlier, the Sunnis recognise written talaq which may be in two forms: manifest talaq and unusual talaq. When the talaqnama is properly written so as to be legible and clearly indicating to whom and by whom it is addressed, it is in the customary form. This is known as manifest talaq. It may be executed in the presence of the Qazi, the wife’s father, or any other relation or witnesses. If the talaqnama is not subscribed in the aforesaid manner, it is called unusual, and the intention to divorce has to be proved. If the talaq is manifest, it operates to dissolve the marriage immediately and irrevocably, as in a talaq-ul-bidda, even though not communicated to the wife. But the communication of written talaq is necessary, for the purpose for which the communication of oral talaq is required.

A Sunni husband may also make a written acknowledgement of divorce, in which case, the divorce is operative, at least, from the date of acknowledgement.

As has been already stated, the Shias recognise written divorce only when the husband is physically incapable of pronouncing oral talaq.

INTERPRETATION OF THE MUSLIM LAW OF TALAQ BY THE INDIAN JUDICIARY

The views of judiciary on the subject of talaq have been different at different points of time. The following cases have critically analyzed so as to lay down the Muslim law on talaq and especially talaq-e-bidda(Triple Talaq) as practiced in India.

Justice Baharul Islam through the paramount source of Islamic Authority has given a right meaning to law of divorce under Islam. He attempted a bold break through to reveal the true meaning and connotation of talaq as envisaged in the Holy Quran. Finally, he projected the true concept of talaq as enjoined by the great light that:

Talaq must be for reasonable Cause;

It must be preceded by “attempts at reconciliation; and

It “may be effected” if the said effects fails.       

In arriving at this conclusion, Baharul Islam J. considered various verses of the Quran and opinions of scholars and jurists such as Mohammad Ali, Yusuf Ali, Ameer Ali and Fyzee. The learned Judge went on to hold: In other words, an attempt at reconciliation by two relatives - one each of the parties, is an essential condition precedent to ‘talaq’.

In a subsequent decision of a Division Bench (Baharul Islam CJ & D Pathak J) of the Gauhati High Court in the case of Mst Rukia Khatun v Abdul Khalique Laskar, the decision in Jiauddin Ahmed case was held to have correctly laid down the law on the subject and the decisions of the Calcutta and Bombay High Courts in ILR 59 Calcutta 83335 and ILR 30 Bombay 53736 were observed to be not correct law.

Also Krishna Iyer J in the case of A Yousuf Rawthher v Sowramma held that it is a popular fallacy that Muslim Male has unbridled power of divorce as it is against the injunction of Holy Quran and that the Muslim law as applied in India has taken a course contrary to the spirit of Islam. Further in the case of Riaz Fatima v Mohammad Sharif the Delhi High Court, held triple talaq to be invalid in the eyes of law. And recently in the case of Masroor Ahmad v State (N.C.T of Delhi) & Anotherthe question before the court was about the validity of Triple talaq under the Muslim law. The Court held that triple talaq (talaq-ul-bidda) ought to be regarded as one talaq revocable during the period of iddat. Further emphasis was laid on the importance of reconciliation before the procedure for divorce is to be started.

The attempt at reconciliation which is recommended under the Shariat, has been assigned a key role by the Supreme Court. After Shamim Ara v State of Uttar Pradesh, the position of the law relating to talaq, where it is contested by either spouse, is that, if it has to take effect, first of all the pronouncement of talaq must be, then reasonable cause must be shown as also the attempt at reconciliation must be demonstrated to have taken place. This would apply to ahsan talaq, hasan talaq as also talaq-e-bidda.38An issue which needs to be un-knotted is - does the attempt at reconciliation necessarily have to precede the pronouncement of talaq or can it be after the pronouncement also? The two Gauhati High Court decisions and that of the Supreme Court in Shamim Ara have gone on the understanding that the attempt at reconciliation must precede the pronouncement of talaq itself. But, those decisions did not consider the distinction between a revocable and an irrevocable talaq. Those decisions, in my respectful view, proceeded on the basis that the talaq in each of the cases was of an irrevocable nature. Once a talaq is of the irrevocable kind, it is obvious that the effort at reconciliation must precede its pronouncement. But, where a talaq is revocable, the attempts at reconciliation can take place even after the pronouncement. This is so, because, in a revocable talaq, the dissolution of marriage does not take place at the time of pronouncement but is automatically deferred till the end of the iddat period. This duration is specifically provided so that the man may review his decision and reconciliation can be attempted. A hasan talaq is revocable. So also are the first two talaq pronouncements in the case of ahsan talaq Now, talaq-e-bidda has also been held by to be operative as a single revocable talaq. In all these cases of revocable talaq, the attempt at reconciliation may, in my view, take place after the pronouncement of talaq. The crucial point is that for a pronouncement of talaq to result in the dissolution of the marital tie there must be an attempt at reconciliation. In the case of an irrevocable talaq, it must precede the pronouncement and in the case of a revocable talaq, it may precede or it may be after the pronouncement but before the end of the iddat period. Also the husband has to duly establish that he has properly followed the procedure of divorce as laid down in the Holy Quran.

CONCLUSION

There is no doubt that under the Mahomedan law the commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognised by the law. Among the pre- Islamic Arab, the power of divorce possessed by the husband was unlimited and was of frequent occurrence without any regard to the marital obligations. They could divorce their wives at any time, for any reason or without any reason. This may have been an advantage to the husband but was a heinous atrocity on the women. In order to curb this social evil, the Prophet framed laws governing marriage and divorce. Accordingly he allowed the exercise of power of divorce under certain conditions and permitted the parties to divorce the parties three distinct and in separate time periods within which they might endeavour to become reconciled; but should all attempt to reconcile prove unsuccessful, then in the third period the final separation become effective.  This is the Quranic injunction on the law of divorce as practiced in Muslim Law.  In the present times, especially in India, it is a major fallacy that it is thought a Muslim husband has an unbridled authority to pronounce talaq on his wife whenever he wants for no reason whatsoever. The courts too in the beginning interpreted the Quran in way that accorded the Muslim husband this very right. The basic reason for this attitude of the judiciary could be due to the fact that judiciary in British India believed that the Muslims in India have faith that there law is of ‘divine origin, therefore is infallible, immutable and unchallengeable There was reluctance among the judiciary on the account that a decision should not hurt the feeling of the general Muslim they inspite of realizing the deficiency could not contribute meaningfully.

But later on the trend changed due to the study of true Islamic law and writing of many authors like Ameer Ali, Yusuf Ali and it was contradicted that the law of divorce in Islam gave arbitrary and whimsical power to husband to divorce his wife. As it has been already mentioned that the true Islamic philosophy of Talaq as enunciated in Quran reveals that there is no scope of arbitrary and easy divorce in Islam and the same started being applied by the Indian Judiciary and it laid three basic requirements which need to be fulfilled in order to bring a valid divorce.  These are first of all the pronouncement of talaq must be proved (it is not sufficient to merely state in court in a written statement or in some other pleading that talaq was given at some earlier point of time), then reasonable cause must be shown as also the attempt at reconciliation must be demonstrated to have taken place Also the husband has to duly establish that he has properly followed the procedure of divorce as laid down in the Quran. Therefore, we see, that only that talaq will be validated by the Court which is in consonance with the basic tenets of the Holy Quran and any procedure that is against the injunction of the Holy Quran will not be accorded the validity of law. At the same time, it needs to be highlighted that under Muslim law, even though marriage is a contract, the husband and the wife are under a moral and legal obligation to fulfil their duties towards each other and cannot cut off their marital ties whenever they want without any legitimate reason. A husband while practicing his right to pronounce divorce on his wife should follow the said procedure as laid down in the Holy Quran and avoid as far as he can to exercise this right.

It will be in the betterment of the Muslim Community if the customary law of talaq is codified by the Parliament just like the Hindu Marriage Act. Such a law will not only create an awareness of the correct procedure as ordained in the Quran but will also make sure that the Muslim husband while exercising his right to pronounce divorce does not abrogate his wife’s fundamental rights. Such a law would remove the misgivings and fallacies that exist in Islam on this particular subject of talaq and will bring about a clarity which will not only help the cause of the Muslim women but the entire Muslim Community as a whole.

BIBLIOGRAPHY

Abdur Rahim, Principles of Muhammadan Jurisprudence ( All-Pakistan Legal Decisions Lahore 1958).

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Asaf AA Fyzee, Cases in Muhammadan Law of India, Pakistan and Bangladesh (2nd edn, Oxford University Press 2005).

Asaf AA Fyzee, Outlines of Muhammadan Law (2nd edn, Oxford University Press London 1955).

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