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Section 12
Talaq-e-bidat [improper Talaq] includes: in a consummated marriage divorcing the wife during menstruation, or divorcing her in a tuhr after coitus, or pronouncing an irrevocable divorce, or pronouncing more than one Talaq in a single tuhr - and in an unconsummated marriage pronouncing together more than one Talaq, or pronouncing more than one Talaq in a single month on a minor or woman past menopause." It is also necessary to refer to the rules of revocable and irrevocable Talaq and they are in sections 17, 18, 19 and 20 and they read, as under: "Section 17:
In a revocable Talaq the husband can take back the wife during "Iddat" without her consent and without a remarriage; but after the expiry of "Iddat" she will become irrevocably divorced and can be lawfully taken back only by a fresh marriage.
Section 18:
Revocation may be either by conduct --
e.g., if the husband has had coitus, kissing and caresses with the wife --- or by spoken words, e.g. if the husband says that he has taken back his wife and informs her of the same. Revocation by words is preferable in the presence of witnesses (two men or a man and two women).
Section 19:
An irrevocable Talaq, whether express or implied, (words of implication are explained hereinafter) is of two kinds: bainunat-e-khafifah (minor separation) and bainunat-e-ghalizah (major separation).
Less than three Talaqs effect bainunat-e-khafifah, otherwise there will be bainunat-e-ghalizah.
Section 20:
In bainunat-e-khafifah though the wife goes out of the marital bond but the parties may by mutual consent remarry during or after the "Iddat". In bainunat-e-ghalizah remarriage is possible only where after the
expiry of "Iddat" the woman has married another man who has either died or divorced her and the "Iddat" of death or divorce has expired."
Section 23:
For proposal and acceptance it is necessary to utter such words which seem to signify immediate establishment of relationship between the parties, whether those words affirm this meaning literally or by implication or usage and whether the language is Arbic or non-Arabic -- as Nikah (marriage), Zawaj (matrimony), Biyah (marriage), Hiba (gift), Baksh dena (giving away) Malik bana dena (make master), etc. On the contrary, if words like Ariyat (lease) or Ijara (rent) are used, there will be no marriage.
Section 24:
To establish a marriage it is also necessary that no such words are mentioned in the proposal and acceptance which signify that the marriage is for a fixed period.
Section 30:
The parents and offspring of the groom and the bride can also be witnesses to the marriage, but it is better to have others as witnesses.
Explanation:
If ascendants or descendants act as witnesses, the marriage will be established but their evidence will not be admissible to prove the marriage in a court and, therefore, it is better to have others as witnesses.
15.The term "Iddat" literally means numeration and it may be described as the period during which it is incumbent upon any woman whose marriage has been dissolved to remain in seclusion and to abstain from marrying another husband. The abstinence is imposed to ascertain whether she is pregnant by the husband so as to avoid conclusion of the parentage. The Act of 1986 has defined the term "Iddat Period" in section 2 (b) and it means in the case of a divorced woman (1) three menstrual courses after the date of divorce, if she is subject to menstruation; (ii) three lunar months after her divorce, if she is not subject to menstruation; and (iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy, whichever is earlier.
Iddat of a divorced woman, if she menstruates is three complete menstrual courses and if she does not due to young or old-age it is three lunar months. If the divorced woman is pregnant her Iddat period is till the end of pregnancy. If the Iddat does not begin on the first day of the month, 30 days will be counted for each month and in that case total days of Iddat will be 130 in the case of death and 90 in the case of divorce/dissolution of marriage and mutual repudiation (Mutarakat).
16.Under the Mahomedan Law the Qazi was chiefly a judicial officer and may be said to have duties corresponded to the present day judge or magistrate.
In addition, however, to his functions under the Mahomedan Law, the Qazi in this country, before the advent of the British Rule, appears to have performed certain other duties partly of secular and partly of religious nature. On the advent of British Rule, judges and magistrates took the place of Qazis who, in his judicial capacity, disappeared. However, the office of the Qazi was not abolished even in the British regime. By certain regulations passed from time to time the appointment of Qaki-ul-Kuzzat and Qazis by the State was provided for and the performance of non-judicial duties was recognised by law. The duties of the Qazi, under these regulations, comprised some functions like celebrating marriages and presiding at divorces as well as performing various rites and ceremonies.
Under these circumstances it appeared no longer necessary that the Government should appoint these officers. Qazis Act, 1864 was formulated and some provisions therein raised certain difficulties and, therefore, the Qazis Act, 1880 came tobe enacted specifying the limited duties of a Qazi.
17.Under the Wakf Act, 1954 as well as the amended Wakf Act, 1995 there is a provision for granting certificate of divorce and the divorce is registered at the office of Qazahat. The certificate is in the prescribed form and it contains the columns for (1) reason of Talaq/ Khula (Divorce), (2) date of divorce/ Talak/ Khula, (3) names of witnesses with fathers name, ages, residences and occupations, signature of divorcer, (4) certificate of Qazi or presiding officer of the Court, (5) name of wife with fathers name, age, residence and occupation etc.
18.Having considered the relevant provisions, as applicable to Talaq under the Muslim Personal Law, let us now go to the views of eminent Muslim Scholars/ Jurists in that regard. (a) Maulana Mohammad Ali in his commentary on the Holy Quran has stated:
"Divorce is one of the institutions in Islam regarding which much misconception prevails, so much so that even the Islamic Law, as administered in the Courts, is not free from these misconceptions."
"Some Muslim jurists and scholars point out that from the very beginning of the recognition of the principle of unilateral divorce, forces had been at work which has restricted and limited its free and unnecessary use."
On the meaning and scope of Sura IV verse 35 of the Holy Quran the said author has commented as under:
"This verse lays down the procedure to be adopted when a case for divorce arises. It is not for the husband to put away his wife; it is the business of the judge to decide the case. Nor should the divorce case be made too public. The Judge is required to appoint two arbitrators, one belonging to the wifes family and the other to the husbands. These two arbitrators will find out the facts but their objective must be to effect a reconciliation between the parties. If all hopes of reconciliation fail, a divorce is allowed. But the final decision rests with the Judge who is legally entitled to pronounce a divorce. Cases were decided in accordance with the directions contained in this verse in the early days of Islam."
"From what has been said above, it is clear that not only must there be a good cause for divorce, but that all means to effect reconciliation must have been exhausted before resort is had to this extreme measure. The impression that a Muslim husband may put away his wife at his mere caprice, is a grave distortion of the Islamic institution of divorce."
Posted on 2002-08-28
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