Principles of Muhammadan Law. Page 460 to 476

MODES OF DISSOLUTION OF MARRIAGE

A valid Mohammedan marriage is dissolved by the death of husband or wife, by the act of parties and by judicial process. An irregular marriage also stands dissolved by apostasy of husband or wife or by the death of husband or wife or by canceling it either by husband or wife. So a valid and an irregular marriage stands dissolved if one of the following events happen:-

 

 

1. Death of either party:

A valid as well as an irregular marriage stands dissolved on the death of either party. But certain obligations during the period of Iddat are to be observed.

A Mohammedan marriage, not being a sacrament like a Hindu marriage, is terminated on the death of either party to marriage.

 

 

DISSOLUTION BY THE ACT OF PARTIES

1. BY THE HUSBAND

 

1. Option of Repudiation:

(i)  When a minor male is given in marriage by his father or grandfather, on attaining puberty, he has a right of repudiating such marriage, if the marriage is contracted fraudulently, carelessly and for the disadvantage of the minor, provided, the marriage is not ratified by the minor either expressly or impliedly.

(ii) When a minor female before she has attained the age of 15 years is given in marriage by her father or grandfather, she has a right of repudiating such marriage before attaining the age of 18 years, under* Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939.

 

1. Talaq/Divorce

 

Definitions:

1.       Divorce in its original sense means “dismission” or rejection but under Islamic law it is a release from the marriage tie either immediately or eventually. Divorce in legal sense means the dissolution of the marriage tie of the husband and wife.

2.       The legal dissolution of a marriage by a court or other competent body.

3.       The right given to a Muslim man to divorce his wife by mere unequivocal statement.

4.       Talaq is the exercise of absolute power of pronouncing unilateral (one sided) divorce on his wife by the husband. Both shias and sunnis recognise this authority of husband to pronounce talaq. The technical meaning of talaq is freedom from marital bond.

5.       Regarding the recognition of unilateral divorce in Mohammedan Law, Abdur Rahim says that with a view to regulating the matrimonial relations, predominant position to the husband is allowed.

6.       “Because, generally speaking, he is mentally and physically superior of the two; and some theorists would treat that dower payable to the wife as consideration for the alienation of her matrimonial freedom.”

Forms of Divorce:

1. Talaqar-Raji' / Sunnat: (revocable divorce)

 

1. وَاِذَا طَلَّقْتُمُ النِّسَاۗءَ فَبَلَغْنَ اَجَلَھُنَّ فَاَمْسِكُوْھُنَّ بِمَعْرُوْفٍ اَوْ سَرِّحُوْھُنَّ بِمَعْرُوْفٍ وَلَا تُمْسِكُوْھُنَّ ضِرَارًا لِّتَعْتَدُوْا ۚ وَمَنْ يَّفْعَلْ ذٰلِكَ فَقَدْ ظَلَمَ نَفْسَهٗ ۭ وَلَا تَتَّخِذُوْٓا اٰيٰتِ اللّٰهِ ھُزُوًا ۡ وَاذْكُرُوْا نِعْمَتَ اللّٰهِ عَلَيْكُمْ وَمَآ اَنْزَلَ عَلَيْكُمْ مِّنَ الْكِتٰبِ وَالْحِكْمَةِ يَعِظُكُمْ بِهٖ ۭ وَاتَّقُوا اللّٰهَ وَاعْلَمُوْٓا اَنَّ اللّٰهَ بِكُلِّ شَيْءٍ عَلِيْمٌ.231

جب تم عورتوں کو طلاق دو وہ اپنی عدت ختم کرنے پر آئیں تو اب انہیں اچھی طرح بساؤ یا بھلائی کے ساتھ الگ کر دو  اور انہیں تکلیف پہنچانے کی غرض سے ظلم اور زیادتی کے لئے نہ روکو جو شخص ایسا کرے اس نے اپنی جان پر ظلم کیا تم اللہ کے احکام کو ہنسی کھیل نہ  بناؤ اور اللہ کا احسان جو تم پر ہے یاد کرو اور جو کچھ کتاب و حکمت اس نے نازل فرمائی ہے جس سے تمہیں نصیحت کر رہا ہے اس سے بھی۔ اور اللہ تعالٰی سے ڈرتے رہا کرو اور جان رکھو کہ اللہ تعالٰی ہرچیز کو جانتا ہے۔

And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. And do not take the verses of Allah in jest. And remember the favor of Allah upon you and what has been revealed to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all things.

( Al Baqra 231)

 

 

1. فَاِذَا بَلَغْنَ اَجَلَهُنَّ فَاَمْسِكُوْهُنَّ بِمَعْرُوْفٍ اَوْ فَارِقُوْهُنَّ بِمَعْرُوْفٍ وَّاَشْهِدُوْا ذَوَيْ عَدْلٍ مِّنْكُمْ وَاَقِيْمُوا الشَّهَادَةَ لِلّٰهِ ۭ ذٰلِكُمْ يُوْعَظُ بِهٖ مَنْ كَانَ يُؤْمِنُ بِاللّٰهِ وَالْيَوْمِ الْاٰخِرِ ڛ وَمَنْ يَّتَّقِ اللّٰهَ يَجْعَلْ لَّهٗ مَخْرَجًا.2

پس جب یہ عورتیں اپنی عدت کرنے کے قریب پہنچ جائیں تو انہیں یا تو قاعدہ کے مطابق اپنے نکاح میں رہنے دو یا دستور کے مطابق انہیں الگ کر دو  اور آپس میں سے دو عادل شخصوں کو گواہ کر لو  اور اللہ کی رضامندی کے لئے ٹھیک ٹھیک گواہی دو  یہی ہے وہ جس کی نصیحت اسے کی جاتی ہے اور جو اللہ پر اور قیامت کے دن پر ایمان رکھتا ہو اور جو شخص اللہ سے ڈرتا ہے اللہ اس کے لئے چھٹکارے کی شکل نکال دیتا ہے.

And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah . That is instructed to whoever should believe in Allah and the Last day. And whoever fears Allah - He will make for him a way out۔

 (Surah Talaq , Ayat 2)

 

Raji’ has two types:

 

1. Talaq Ahsan: (the most approved divorce).

It is meant as a means to heal the breach between a couple and allow for the soothing of frayed nerves. It has three conditions. The husband must only pronounce one Talaq. The Talaq must be only pronounced when the wife is in a state of purity. The husband must abstain from sexual contact with his wife for the 'iddah (the waiting period) which is three months.

The ahsan form consists of one single pronouncement in a period of tuhr, followed by abstinence from sexual intercourse during idda’.

Where the parties have been away from each other for a long time, or where wife is old and beyond the age of menstruation, the condition of tuhr, is unnecessary.

A pronouncement of made in the ahsan form is revocable during ‘idda. This period is three months from the date of the declaration or, if the woman is pregnant, until delivery. The husband may revoke the divorce at any time during the ‘idda. Such revocation may be by express words or by conduct. The divorce is revoked under Hanafi as well as Ithna’ Ashari law.

After the expiration of the ‘idda the divorce becomes irrevocable. A Muslim wife, after divorce, is entitled to maintenance during the ‘idda and so also her child, in certain circumstances.

Ahsan Talak is the most approved and best form."Ahsan” means very' good. The best feature of this kind of Talak is that it is revocable, so hasty divorce can be prevented..

This type of Talak is less injurious to wife, remarriage between the parties is possible..

Following are the requirements of an Ahsan Talak:-

(1)      Marriage must be consummated.

(2)      A single pronouncement of Talak such as “ 1 have  divorced thee’’ must   be made.

(3)      Such pronouncement must be made during Tuhr, i.e. the period of purity between menstruations.

(4)      The requirement that pronouncement of Talak should be made during Tuhr applies to an oral divorce, but it does not apply to a written Talak.

(5)      The requirement that pronouncement of Talak should be made during Tuhr does not apply to a wife who has crossed the age of menstruation or the parties have been away from each other for a long period or when marriage has not been consummated.

(6)      There must be no sexual intercourse during Tuhr.

(7)      There must be no sexual intercourse during the period of Iddat. In case of a pregnant woman there must be no sexual intercourse till the birth of the child.

(8)      Talak can be revoked expressly or impliedly at any time.

 

1. TalaqHasan: (approved).

In this form divorce is pronounced in three successive periods. After the first two the husband has the right to take his wife back if they so desire to reunite but if he pronounces divorce a third time it becomes irrevocable. The wife must marry another at this time.

The hasan is also an approved form, but less approved than the first ahsan. It consists of three successive pronouncements during three consecutive periods of purity (tuhr). Each of these pronouncements should have been made at a time when no intercourse has taken place during that particular period of purity.

The husband pronouncetalaq on his wife for the first time during a period when wife is free from her menstrual courses. The husband and wife had not come together during this period of purity. This is the first talaq.

He resumes cohabitation or revokes this first talaq in this period of purity. Thereafter, in the following period of purity, at a time when no intercourse has taken place, husband pronounces the second talaq.

This talaq is again revoked by express words or by conduct, and the third period of purity is entered into. In this period, no intercourse having taken place, husband for the third time pronounces the formula of divorce.

The third pronouncement operates in law as a final and irrevocable dissolution of the marital tie. The marriage is dissolved; sexual intercourse becomes unlawful; ‘idda becomes incumbent; remarriage between the parties becomes impossible unless wife lawfully marries another husband, and that other husband lawfully divorces her after the marriage has been actually consummated.

The Ithna ‘Ashari and the Fatimid schools, however, do not recognize the remaining two forms and thus preserve the ancient conventions of the times of the Lawgiver.

The second is a form in which the Holy Prophet (PBUH) tried to put an end to a barbarous pre-Islamic practice. This practice was to divorce a wife and take her back several times in order to ill-treat her.

Hasan Talak is approved form. “Hasan" means good.

Following are the requirements of a Hasan Talak:-

(1)      Marriage must be consummated.

(2)      Three pronouncements of Talak (Such as “ 1 have divorced thee” for three times) must be made. Such pronouncements must be made three times (one during each Tuhr) during three successive Tuhrs.

(3)      The requirement that the pronouncement of Talak should be made during Tuhrs does not apply to a wife who has crossed the age of menstruation. In such a case, the pronouncement of Talak may be made after the 'interval of 30 days between the successive pronouncements.

(4)      There must be no sexual intercourse during all the three successive Tuhrs before making any pronouncement. In case of a pregnant woman, there must be no sexual intercourse till the birth of the child.

(5)      In case of an unconsummated marriage, a single pronouncement of Talak even made during a period of ' menstruation results into irrevocable Talak.

(6)      Hasan Talak becomes irrevocable on the third pronouncement of Talak.

 

1. Talaq al-Bain: (irrevocable divorce).

This is a divorce that with three pronouncements in successive sittings or at the same sitting or before the consummation of the marriage. There is no return allowed under these circumstances unless the woman has an intervening marriage.

"Talaq is a right available mainly to the husband, but not to the wife. Even though Islam allows divorce, the Prophet (pbuh) says: 'Of all things that Islam has permitted, divorce is the most hated by Allah.' Hasty and wanton use of the right of divorce is regarded as most condemnable in Islam."

 

1. اَلطَّلَاقُ مَرَّتٰنِ ۠ فَاِمْسَاكٌۢ بِمَعْرُوْفٍ اَوْ تَسْرِيْحٌۢ بِاِحْسَانٍ.229

یہ طلاقیں دو مرتبہ  ہیں پھر یا تو اچھائی سے روکنا  یا عمدگی کے ساتھ چھوڑ دینا

 

"A divorce is only permissible twice. After that the parties should either hold together on equitable terms or separate with kindness."

Surah Al-Baqarah 229:

 

 

This could be likened to the "three strikes and you're out" policy.

Talak-ul-Biddat is also known as Talak-ul-badai or bidda or bidat. Biddat means sinful. It is recognized only, under Sunni Law. In this type of Talak, the pronouncement of Talak is irrevocable. The historical background of this type of Talak depicted by Ameer Ali as:

“The Talak-ul-Biddat, as its name signifies, is the heretical or irregular mode of divorce, which was introduced in the second century of the Mohammedan era. ( The Omayyid monarch finding that the checks imposed by the Prophet (peace be upon him) on the facility of repudiation interfered with the indulgence of their caprice, endeavored to find and escape from the strictness of law and found a loophole to effect their purpose).

As a matter of fact the capricious and irregular the power of the divorce which was in the beginning left to the husband was strongly disapproved by the Prophet (peace be upon him). It is reported that when once news was brought to Him that one of his disciples had divorced his wife, pronouncing the Three Talaks at one and the same time the Prophet (peace be upon him) stood up in anger on his carpet and declared that the man was making the plaything of the words of God and made him to take back his wife.”

Though such divorces are theologically bad, .it is perfectly valid in law. This Talak is of following two kinds:

(a)      Single irrevocable Talak.       

Another form of the disapproved divorce is a single, irrevocable pronouncement made either during the period of tuhr or even otherwise. This form is also called at-talaq-ul-bain and may be given in writing. Such a bill of divorcement comes into operation immediately and severs the marital tie. This form is not recognized by the Ithna ‘Ashari or the Fatimid school.

Following are the requirements of a Single form of Talak.

(1)      Marriage must be consummated.

(2)      A single irrevocable pronouncement of Talak may be made, if a husband says to his wife, “I had divorced thee Talak-ul- Biddat form”. It is enough and an irrevocable divorce will come into effect.

(3)      Such pronouncement may be made any time either in a period of Tuhr or even during menstruation.

(4)      Such pronouncement may be made even if the husband had sexual intercourse with her since the last menstruation.

(5)      Marriage is dissolved immediately on the pronouncement of Talak irrevocable.

 

(b)      Triple irrevocable Talak.

In this form three pronouncements are made in a single tuhr, either in one sentence, e.g. ‘I divorce thee triply or thrice; or in three sentences, ‘ I divorce thee, I divorce thee’. Such a talaq is lawful, although sinful, in Hanafi law; but in Ithna ‘Ashari and the Fatimid laws it is not permissible. This called at-talaq-ul-bain, irrevocable divorce.

Following are the requirements of a triple form of Talak.

(1)      Marriage must be consummated.

(2)      Triple pronouncement of Talak must be made, such as “ I divorce thee, I divorce thee, 1 divorce thee’ or such pronouncement may be made in one sentence such as, “ I divorce thee thrice or triply, “ or the husband may say, I release you from the marital bond by giving three Talaqs.

(3)      Such pronouncement may be made any time, either in a period of Tuhr or during menstruations

(4)      Such pronouncement may be made even if the husband has sexual intercourse with her since the last menstruation.

(5)      Marriage is dissolved immediately on the pronouncement of Talak irrevocable

 

1. Talaq Al-Bida'h (Divorce of Innovation):

This was a type of divorce that made its appearance after the death of the Prophet (pbuh). It is where the man pronounces Talaq three times at one sitting or sends it in writing to his wife. This is a sin against the precepts of the Shari'ah and was severely denounced by the Prophet and Khalif `Umar would whip a husband who did such a thing.

ILLA

 

1. لِلَّذِيْنَ يُؤْلُوْنَ مِنْ نِّسَاۗىِٕهِمْ تَرَبُّصُ اَرْبَعَةِ اَشْهُرٍ ۚ فَاِنْ فَاۗءُوْ فَاِنَّ اللّٰهَ غَفُوْرٌ رَّحِيْمٌ۔

جو لوگ اپنی بیویوں سے (تعلق نہ رکھنے کی) قسمیں کھائیں، ان کی چار مہینے کی مدت  ہے پھر اگر وہ لوٹ آئیں تو اللہ تعالٰی بھی بخشنے والا مہربان ہے۔

For those who swear not to have sexual relations with their wives is a waiting time of four months, but if they return [to normal relations] - then indeed, Allah is Forgiving and Merciful.

Surah al baqra ayat 226

 

(i)       A Mohammedan marriage may be dissolved by lla on the expiry of the specified period, when a husband who is of sound mind and has attained puberty, swears that he will abstain from sexual intercourse for four months or more.

(ii)      The Ismailis agree that lla can be made only during Tuhr (a period of purity between menstruations). When there was no sexual intercourse, consummation of marriage is a condition precedent for making lla under Ithna Ashari Law.

(iii)     Before the expiry of the period of four months lla may be revoked either:

(a)      By resumption of sexual intercourse, or

(b)      By express words.

The husband swears not to have intercourse with the wife and abstains for four months or more. The husband may revoke the oath by resumption of marital life. After the expiry of the period of four months, in Hanafi law the marriage is dissolved without legal process, but in Itha‘ Ashari and Shafi’I law, legal proceedings are necessary.

 

 

 

 

1. Zihar:

اَلَّذِيْنَ يُظٰهِرُوْنَ مِنْكُمْ مِّنْ نِّسَاۗىِٕــهِمْ مَّا هُنَّ اُمَّهٰتِهِمْ ۭاِنْ اُمَّهٰتُهُمْ اِلَّا اڿ وَلَدْنَهُمْ ۭ وَاِنَّهُمْ لَيَقُوْلُوْنَ مُنْكَرًا مِّنَ الْقَوْلِ وَزُوْرًا ۭ وَاِنَّ اللّٰهَ لَعَفُوٌّ غَفُوْرٌ.2

تم میں سے جو لوگ اپنی بیویوں سے ظہار کرتے ہیں (یعنی انہیں ماں کہہ بیٹھتے ہیں) وہ دراصل ان کی مائیں نہیں بن جاتیں، ان کی مائیں تو وہی ہیں جن کے بطن سے وہ پیدا ہوئے،  یقینًا یہ لوگ ایک نامعقول اور جھوٹی بات کہتے ہیں۔

Those who pronounce thihar among you [to separate] from their wives - they are not [consequently] their mothers. Their mothers are none but those who gave birth to them. And indeed, they are saying an objectionable statement and a falsehood. But indeed, Allah is Pardoning and Forgiving.

وَالَّذِيْنَ يُظٰهِرُوْنَ مِنْ نِّسَاۗىِٕهِمْ ثُمَّ يَعُوْدُوْنَ لِمَا قَالُوْا فَتَحْرِيْرُ رَقَبَةٍ مِّنْ قَبْلِ اَنْ يَّـتَـمَاۗسَّا ۭ ذٰلِكُمْ تُوْعَظُوْنَ بِهٖ ۭ وَاللّٰهُ بِمَا تَعْمَلُوْنَ خَبِيْرٌ.3

جو لوگ اپنی بیویوں سے ظہار کریں پھر اپنی کہی ہوئی بات سے رجوع کرلیں  تو ان کے ذمے آپس میں ایک دوسرے کو ہاتھ لگانے سے پہلے  ایک غلام آزاد کرنا ہے، اس کے ذریعے تم نصیحت کئے جاتے ہو اور اللہ تعالٰی تمہارے تمام اعمال سے باخبر ہے۔

And those who pronounce thihar from their wives and then [wish to] go back on what they said - then [there must be] the freeing of a slave before they touch one another. That is what you are admonished thereby; and Allah is Acquainted with what you do.

فَمَنْ لَّمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ مِنْ قَبْلِ اَنْ يَّتَمَـاۗسَّا ۚ فَمَنْ لَّمْ يَسْتَطِعْ فَاِطْعَامُ سِـتِّيْنَ مِسْكِيْنًا ۭ ذٰلِكَ لِتُؤْمِنُوْا بِاللّٰهِ وَرَسُوْلِهٖ ۭ وَتِلْكَ حُدُوْدُ اللّٰهِ ۭ وَلِلْكٰفِرِيْنَ عَذَابٌ اَلِيْمٌ.4

ہاں جو شخص نہ پائے اس کے ذمے دو مہینوں کے لگا تار روزے ہیں اس سے پہلے کہ ایک دوسرے کو ہاتھ لگائیں اور جس شخص کو یہ طاقت بھی نہ ہو اس پر ساٹھ مسکینوں کا کھانا کھلانا ہے۔ یہ اس لئے کہ تم اللہ کی اور اس کے رسول کی حکم بردری کرو، یہ اللہ تعالٰی کی وہ حدیں ہیں اور کفار ہی کے لئے دردناک عذاب ہے

And he who does not find [a slave] - then a fast for two months consecutively before they touch one another; and he who is unable - then the feeding of sixty poor persons. That is for you to believe [completely] in Allah and His Messenger; and those are the limits [set by] Allah . And for the disbelievers is a painful punishment.

Surah At-Talak Ayat 2, 3, and 4.

(i)       A Mohammedan marriage may be dissolved by Zihar if a husband who is of sound mind and has attained puberty, compares his wife with a woman within the degrees of his prohibited relationship.

(ii)      In such a case the wife acquires a right to refuse cohabitation with her husband till he performs penance

In Zihar, the husband swears that to him the wife is like ‘the back of his mother’. If he intends to revoke this declaration, he has to pay money by way of expiation, or fast for a certain period. After the oath has been taken, the wife has the right to go to the court and obtain divorce or restitution of conjugal right on expiation.

(iii)     Under Ithna Ashari Law of Shias, Zihar must be made before two competent witnesses during Tuhr (a period of purity between- menstruations) followed by abstinence of sexual intercourse.

(iv)     On performing penance, Zihar stands revoked.