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11.The All India Muslim Personal Law Board has published a Compendium of Islamic Laws and Part-II therein deals with the law of divorce. The preliminary note on "Divorce in Islam", reads thus:
"Marriage is a blessing, and when this relationship is established it is meant to subsist and be lasting. It is through this relationship that God grants children. Divorce terminates marital relationship and
leads to several problems in the family. Divorce in itself is, therefore, an undesirable act. However, it is also true that if there is no temperamental compatibility between the parties, or the man feels that he cannot as husband fulfil the womans rights, or because of mutual difference of nature Gods limits cannot be maintained, keeping the marriage intact in such situations or to compel the parties by legal restrictions to continue in the marital bond may be more harmful for the society. The Shariat, therefore, regards divorce as permissible although it is an undesirable act.
Thus, uncontrolled use of divorce without regard to the restrictions established by the Shariat is a sin. Similarly, imposing such restrictions on the right of divorce due to which the man is compelled not to divorce the wife despite his feeling that he cannot live a happy life with her is also not lawful. The decision whether a man can live a happy life with his wife or not and whether divorce is necessary or not relates to the sentiments of the husband. The decision in this regard can, therefore, be taken by the husband himself. If the man is sure that he cannot have cohabitation as per rules, e.g., if he is impotent, or cannot fulfil marital obligations, or any other such situation is there, it will be necessary for him to pronounce a divorce. To divorce the wife without reason only to harm her, or revengefully due to the non-fulfilment of his unlawful demands by the wife or her guardians, and to divorce her in violation of the procedure prescribed by the Shariat, is haram (absolutely prohibited)."
12.The Holy Quran (English translation to the meanings and commentary ...... and edited by the Presidency of Islamik Research IFTA was also placed before us by Shri Gulam Mustafa and our attention to the following provisions on divorce, was invited:
225.Allah will not Call you to account
For thoughtlessness
In your oaths,
But for the intention
In your hearts, 252
And He is
Oft-forgiving
Most Forbearing.
226.For those who take
An oath for abstention
From their wives,
A waiting for four months
Is ordained;
If then they return,
Allah is Oft-forgiving,
Most Merciful.
227.But if their intention
Is firm for divorce,
Allah heareth
And knoweth all things 253
228.Divorced women
Shall wait concerning themselves
For three monthly periods.
And it is not lawful for them
To hide what Allah
hath created in their wombs,
If they have faith
In Allah and the Last Day.
And their husbands
Have the better right
To take them back
In that period, if
They wish for reconciliation. 254
And women shall have rights
Similar to the rights
Against them, according
To what is equitable;
But men have a degree
Over them 255
And Allah is Exalted in Power,
Wise.
SECTION 29.
229.A Divorce is only 256
Permissible twice, after that,
The parties should either hold
Together on equitable terms,
Or separate with kindness. 257
It is not lawful for you,
(Men), to take back
Any of your gifts (from your wives),
Except when both parties
Fear that they would be
Unable to keep the limits
Ordained by Allah 258
If ye (judges) do indeed
Fear that they would be
Unable to keep the limits
Ordained by Allah,
There is no blame on either
Of them if she give
Something for her freedom
These are the limits
Ordained by Allah;
So do not transgress them
If any do transgress
The limits ordained by Allah,
Such persons wrong
(Themselves as well as others). 229
230.So if a husband
Divorces his wife (irrevocably), 260
He cannot, after that,
Re-marry her until
After she has married
Another husband and
he has divorced her.
In that case there is
No blame on either of them
If they re-unite, provided
They feel that they
Can keep the limits
Ordained by Allah.
Such are the limits
Ordained by Allah,
Which He makes plain
To those who know
231.When ye divorce 261
Women, and they (are about to) fulfil
The term of their (Iddat),
Either take them back
On equitable terms
Or set them free
On equitable terms:
But do not take them back
To injure them, (or) to take
Undue advantage; 262
If any one does that,
he wrongs his own soul.
Do not treat Allahs Signs
As a jest, 263
But solemnly rehearse 264
Allahs favours on you,
And the fact that He
Sent down to you
The Book
And Wisdom,
For your instructions.
And fear Allah,
And know that Allah
Is well acquainted
With all things.
SECTION 30
232.When ye divorce
Women, and they fulfil
The term of their (Iddat),
Do not prevent them 265
From marrying
Their (former) husbands,
If they mutually agree
On equitable terms.
This instruction
Is for all amongst you,
Who believe in Allah
And the Last Day.
That is (the course
Making for) most virtue
And purity amongst you.
And Allah knows,
And ye know not.
SECTION 31
236.There is no blame on you
If ye divorce women
Before consummation
Or the fixation of their dower;
But bestow on them
(A suitable gift),
The wealthy
According to his means,
And the poor
According to his means;-
A gift of a reasonable amount
Is due from those
Who wish to do the right thing.
SECTION 39
282.O ye who believe!
When ye deal with each other,
In transactions involving
Future obligations
In a fixed period of time,
Reduce them to writing 329
Let a scribe write down
Faithfully as between
The parties: let not the scribe
Refuse to write: as Allah 330
Has taught him,
So let him write.
Let him who incurs
The liability dictate,
But let him fear Allah
His Lord
And not diminish
Aught of what he owes,
If the party liable
Is mentally deficient,
Or weak, or unable
Himself to dictate,
Let his guardian
Dictate faithfully,
And get two witnesses,
Out of your own men. 332
And if there are not two men,
Then a man and two women,
Such as ye choose,
For witnesses,
So that if one of them errs,
The other can remind her.
The witnesses
Should not refuse
When they are called on
(For evidence).
Disdain not to reduce
To writing (your contract)
For a future period,
Whether it be small
Or big; it is juster
In the sight of Allah,
More suitable as evidence,
And more convenient
To prevent doubts
Among yourselves
But if it be a transaction
Which ye carry out
on the spot among yourselves,
There is no blame on you
If ye reduce it not
To writing.
But take witnesses
Whenever ye make
A commercial contract;
And let neither scribe
Nor witness suffer harm.
If ye do (such harm),
It would be wickedness
In you. So fear Allah;
For it is Allah
That teaches you.
And Allah is well acquainted.
With all things. 333
[Sura II, Verses 225 to 232, 236, 282]
35.If ye fear a breach.
Between them twain,
Appoint (two) arbiters,
One from his family,
And the other from hers; 549
If they seek to set things aright,
Allah will cause
Their reconciliation:
For Allah hath full knowledge,
And is acquainted
With all things.
128.If a wife fears
Cruelty or desertion
On her husbands part,
There is no blame on them
If they arrange
An amicable settlement
Between themselves;
And such settlement is best;
Even though mens souls
Are swayed by greed. 638
But if ye do good
And practise self-restraint,
Allah is well-acquainted
With all that ye do.
129.Ye are never able
To do justice
Between wives
Even if it is
Your ardent desire:
But turn not away
(From a woman) altogether,
So as to leave her (as it were)
Hanging (in the air). 639
If ye come to a friendly
Understanding, and practise
Self-restraint, Allah is
Oft-forgiving, Most Merciful.
130.But if they separate
Allah will provide abundance
For each of them for His
All-reaching bounty:
For Allah is He
That careth for all
And is Wise.
[Sura IV, Verses 35, 128 to 130]
1.O Prophet!5503 When ye
Do divorce women, 5504
Divorce them at their
Prescribed periods, 5505
And count (accurately)
Their prescribed periods:
And fear Allah your Lord: 5506
And turn them not out
Of their houses, nor shall
They (themselves) leave, 5507
Except in case they are
Guilty of some open lewdness,
Those are limits
Set by Allah: and any
Who transgresses the limits
Of Allah, does verily
Wrong his (own) soul:
Thou knowest not if
Perchance Allah will
Being about thereafter
Some new situation. 5508
2.Thus when they fulfil
Their term appointed,
Either take them back
On equitable terms 5509
Or part with them
On equitable terms;
And take for witness
Two persons from among you,
Endued with justice,
And establish the evidence 5510
For the sake of Allah. Such
Is the admonition given
To him who believes
In Allah and the Last Day.
4.Such of your women
As have passed the age
Of monthly courses, for them
The prescribed period, if ye
Have any doubts, is
Three months, and for those
Who have no courses
(It is the same):5513
For those who are pregnant,
Their period is until
They deliver their burdens:
And for those who
Fear Allah, He will
make things easy for them. 5514
[Sura : 65 verses 1, 2 and 4]
13.Chapter-XVI in Mullas Principles of Mahomedan Law deals with the subject "divorce" and section 307 gives three forms of divorce viz. (1) by the husband at his will, without the intervention of a Court; (2) by mutual consent of the husband and wife, without the intervention of a Court; (3) by a judicial decree at the suit of the husband or wife. When the divorce proceeds from the husband, it is called Talak, when it is effected by mutual consent, it is called Khula or Mubaraat, whereas the third form of divorce by way of decree at the suit of the husband or wife is called as Faskh. The first form of divorce is called as "Talaq", the second one as "Khula". Talak literally means to remove a restriction or to put an end to the marriage with immediate or deferred effect by using any of the special words meant for it, whether those words are used by the husband himself or by his representative, or by the Qazi who in certain situations is regarded by the Shariat as the husbands deputy and is empowered to pronounce a divorce on his behalf without his consent. A Talak may be effected (1) orally (by spoken words) or (2) by a written document called a Talaknama.
In the oral form of Talak there are three different modes of Talak viz. (a) Talak Ahsan which consists of a single pronouncement of divorce made during tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of Iddat; (b) Talak Hasan which consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs (the first pronouncement should be made during a tuhr, the second during the next tuhr, and the third during the succeeding tuhr), and (c) Talak-ul-biddat or Talak-i-badai. This form consists of (i) three pronouncements made during a single tuhr either in one sentence, e.g., "I divorce thee thrice, - or in separate sentences e.g., "I divorce thee, I divorce thee, I divorce thee" or (ii) a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage e.g. "I divorce thee irrevocably". A Talak in Ahsan mode becomes irrevocable and complete on the expiration of the period of Iddat, whereas a Talak in Hasan mode becomes irrevocable and complete on the third pronouncement, irrespective of the Iddat; whereas a Talak in badai mode becomes irrevocable immediately it is pronounced, irrespective of the Iddat. Until a Talak becomes irrevocable, the husband has the option to revoke it which may be done either expressly, or implied as by resuming sexual intercourse. To utter by mouth any of the special words implying Talaq is of the essence in a Talaq. Just thinking of Talaq or silently deciding on it will not result into Talaq.
Talak in writing is a written mode of Talak reduced in a Talaknama which may only be the record of the fact of an oral Talak or it may be the deed by which the divorce is effected. The deed may be effected in the presence of a Qazi or the wifes father or of two witnesses. In the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce (Talak-i-bain) and takes effect immediately on its execution. Talak by a delegation is permissible and it is called as Talak by Tafweez.
14.Written Talaq may have several forms and some of them are (a) Kitabat-e-mustabinah (legible writing), It is of two kinds -- Mustabinah Marsumah (formal legible writing and Mustabinah Ghair Marsumah (informal legible writing). Kitabat-e-mustabinah Marsumah which is a formal divorce-deed or letter which is written with a title and the addressees name. Section 5 in Chapter-II of Part-II of the Compendium of Islamik Laws deals with conditions for effectiveness of Talaq let us refer to these provisions.
"Section 5 (a) The man pronouncing a Talaq should be sane and adult and should have pronounced the Talaq while he was awake and conscious. Therefore, a Talaq pronounced by a person who is a minor, insane, imbecile, overwhelmed, delirious, unconscious or asleep, will not be effective. (b) For the effectiveness of Talaq it is, in principle, necessary that the man pronouncing it should be in his senses. This demands that a Talaq pronounced in an inebriated condition should not be effective. However, if a person has unlawfully consumed an intoxicant by his own liking and habit, his Talaq will become effective by way of punishment. But if a person has consumed any intoxicant as a treatment, or under compulsion or strong pressure, or in ignorance, and pronounces Talaq in that state, it will not be effective. (c) If a person consumes something which in fact is not intoxicating but because of its unsuitability for his system he gets inebriated, a Talaq pronounced in such condition will not be effective. (d) It is also necessary that in the sentence used for Talaq the divorce must have been related to the wife, either expressly or by necessary implication. (e) It is further necessary that the woman divorced should be a proper object of Talaq, i.e., she must be either married to the man or observing for him "Iddat" of a revocable or irrevocable Talaq other than a triple Talaq. Section 6 states that if a person under compulsion or duress pronounces a Talaq it will be valid if it is verbal, but not otherwise. Section 11 in Chapter-III speaks of proper and improper Talaq and the first form is in section 11 whereas the second form is in section 12, which read as under: "PROPER AND IMPROPER TALAQ Section 11:
There are two conditions for Talaq-e-sunnat [proper Talaq] first, in a consummated marriage the wife should not be divorced during menstruation and the Talaq should be pronounced in a tuhr (period following one menstruation and preceding the next) before having coitus in it. Second, if the marriage has been consummated, only one revocable divorce should be pronounced in any single tuhr. If a man pronounces a single revocable Talaq in a single tuhr and keeps away from the woman till her "Iddat is over, this will be Talaq-e-ahsan (better divorce). If a single revocable Talaq is pronounced before coitus in a new tuhr till three talaqs are over, this will be Talaq-e-hasan (good divorce). Similarly, in a non-consummated marriage pronouncing a single Talaq even though when the wife is in menstruation will be Talaq-e-hasan. Pronouncing three Talaqs in three months on a minor or a woman past menopause is also Talaq-e-hasan.
Posted on 2002-08-28
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