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Various Modes of Divorce Under Muslim Law

This is an article in which author tried to explain various modes and practices of divorce under Muslim law.

Islam recognizes judicial and extrajudicial divorce. Divorce under Muslim law can be done in various ways depending on the parties to the divorce. The husband can divorce his wife in three ways, including if they did it mutually or if he did it by Talaq (repudiation) If the husband divorces his wife, the marriage ends.

Pronouncing Talaq means declaring one's intention to divorce his wife. Pronouncing the Talaq during the period when the wife is in the pure stage i.e., Tuhr period, should be pronounced during the interval between two menstruations.

Under Hanafi law, Talaq is valid if it is proclaimed under intimidation, impulse, unnecessary impact, extortion, and intentional toxication. In the event that the fulfillment has not happened, the husband may pronounce Talaq during the period in which the wife is in menses. The declaration of divorce must be clear with the intention that husband wants to dissolve the marriage. During declaration, the name of the wife must be referred to. In Ithna Ashari law, the Talaq must be pronounced before the presence of two male Muslim witnesses whereas, in Sunni law, it is not needed.

In Sunni law, Talaq can be in oral or in written text. In Ithna Ashari law, Talaq must be pronounced orally in Arabic tongue before the witnesses. The husband has ample opportunity to reconsider his divorce if he has given the divorce in hastiness.

Talaq e Ahsan- Talaq-e-Ahsan is the most considerable form of Talaq in Islam as it provides the husband with the adequate opportunity to reconsider his divorce if he has given the divorce in hastiness or under undue influence. Talaq is pronounced during the Tuhr period and it is pronounced thrice i.e., during three consecutive periods. After the third Talaq, Talaq becomes irrevocable.

Talaq-e Ahsan completes after period of iddah only. Iddah is the period of three menstrual courses after the declaration of the third Talaq or if until delivery if the wife is pregnant. Talaq pronounced in Ahsan form is revocable during the period Iddah. The revocation must be done either by words or by oral . If a person pronounces a single Talaq and then says that he has retained her or cohabiting with her is the form of revocation.

Talaq-e-Hasan- Talaq-e-Hasan is also considered to be the proper method though it is not proper as the previous method. The third Talaq proclaimed during the third Tuhr completes the divorce. The first Talaq is made during a Tuhr period, the followingly second pronouncement is made at the next Tuhr, and final or third pronouncement at the third.

Talaq-e-Hasan completes if any form of revocation has not been done during the in-between period. There should be continence from sexual intercourse during the period in between. Talaq pronounced in Hasan form could be revoked only until the pronouncement of the third Talaq and it becomes irrevocable after the third Talaq.

Talaq- al Biddat -Talaq al biddat has recently banned by supreme court of India . It is not considered as proper form of divorce in Islam because it came into practice during second generation of Islam. Practicing of Talaq al biddat free husband from his wife his liability and remedy that should provided to the wife. Islam jurist criticize such practices as unjustifiable and unlawful in nature. Talaq-AL biddat have two disapproved forms :

Triple Talaq- Also known as Talaq ul Bain where three pronouncements of Talaq are made in single Tuhr, by repeating I divorce three times consecutively a person gets divorced from his wife. There is no period of iddah and Tuhr which has to be followed.

Nikah Halala- Nikah Halala is a stringent condition laid down in order to restrict the husband to the form of Talaq-e-Biddat. The condition is that if the husband wants to remarry the wife to whom the Talaq is pronounced, He cannot remarry her unless the wife is married to another person and consummation must occur between them. Such a type of marriage is called Nikah halala. This is also called as tahleel marriage. Then after dissolution, the first husband could remarry his wife.

Talaq- E tafweez (mutual divorce)- Talaq–E-Tafweez is a form of divorce where the power of Talaq is delegated to the wife by the husband under an agreement between them. The Muslim wife at the time of the marriage can reserve a right for herself to dissolve the marriage under certain contingencies in the marriage deed. There are also other forms of divorce under Muslim law, such as Ila and zihar.

Written By: Skand Kumar Singh [B.A.,LL.B(H) 3rd YEAR Amity Law School, Noida]

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