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24.However, there is a third form of oral Talaq and that is Bidai. This Talaq-e-Biddat or Bidai
(improper Talaq) within the meaning of section 12 of Islamic Laws and it 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 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 a woman past menopause. Though such a form is prohibited but if person pronounces such a Talaq it will be effective while the man will be guilty of severe sin. Thus, the Talaq-e-Biddat or Bidai form is sinful or may be described as barbaric or is prohibited but if the husband pronounces such a Talaq it would not be unlawful. Mr. R.K.Wilson, in his digest of Anglo-Mahomedan Law (5th Edition) at page 136 stated on the law of divorce in the following words: "The divorce called Talaq may be either irrevocable (bain) or revocable (rajai). A Talaq-e-bain, while it always operates as an immediate and complete dissolution of the marriage bond differs as to one of its ulterior effects according to the form in which it is pronounced. A Talaq-e-bain may be effected by words addressed to the wife clearly indicating an intention to dissolve the marriage either (a) once, followed by abstinence from sexual intercourse for the period called "Iddat" or, (b) three times during successive intervals of puberty i.e. between three successive menstruations, no intercourse taking place during any of the three intervals, or (c) three times at shorter intervals or even in immediate succession, or (d) once, by words showing a clear intention that the divorce shall immediately become irrevocable. The first name of the above method is called as
"Ahsan" (best), the second "Hasan" (good), the third and fourth are said to be "Biddat" (sinful) but are nevertheless regarded by Sunni Lawyers as legally valid.
In the case of "Syed Rashid Ahmed and another V/s Anisa Khatun and others" (supra) Ghiyas Uddin had given Talaq on 13th September, 1905 to Anisa Khatun by pronouncing the triple Talaq of divorce in the presence of witnesses. The words of divorce addressed to the wife, though she was not present, were repeated three times by Ghiyas Uddin "I divorce Anisa Khatun forever and render her Haram for me". These words clearly showed an intention to dissolve the marriage. The Privy Council held that there can be no doubt that the method adopted was the fourth, above described, and it was confirmed so by the deed of divorce which stated that the three divorces were given "in the abominable form"
i.e. "Biddat". The Privy Council also held that the High Court committed an error in treating the divorce as in the "Ahsan" form instead of "Biddat" form in which the divorce at once becomes irrevocable but irrespective of the Iddat and it is not necessary that the wife should be present when the Talaq is pronounced and her right to alimony may continue until she is informed of the divorce. The Privy Council also held that once the divorce is held proved such facts could not undo its effect. It is, thus, necessary that the factum of divorce is required to be proved and the conditions precedent for such valid or effective divorce are as stated in the Holy Quran, of reconciliation by the arbitrators or by appointing judges and for specific reasons unless the divorce is in the third and fourth form i.e. Biddat or Bidai and Rajazi.
Islam also recognises the husbands right to give Talaq in front of Qazi or the wifes father or two witnesses, both of them being man professing Islam or one of them being a man and other two being women all professing Islam and such a Talaq, either in the Ahsan or Hasan form will be irrevocable.
Nevertheless, in this form also the conditions for reconciliation and giving reasons for Talaq are required to be followed so that the husband and wife are restrained from an undesirable act of divorce which leads to several problems in the family. If the man is sure that he cannot have cohabitation as per rule, that if he is impotent or cannot fulfil marital obligations or any other such situation exists, it would be necessary for him to pronounce a divorce and in such a situation he may be justified in invoking the Talaq-e-Biddat or Bidai form of Talaq.
25. In the written form of Talaq there is no prescribed format but the conditions for effective or proper Talaq, as are applicable in the oral form of Talaq, are also applicable to the written form of Talaq and the pronouncements of divorce are required tobe communicated to the wife. In the absence of words, showing a different intention, a divorce in writing operates as an irrevocable divorce and takes effect immediately on its execution. Such a Talaq in writing is required to be addressed to the wife and absence of such an address leads to ineffective/ invalid Talaq.
The husband must address to his wife and pronounce the Talaq in writing. If such a pronouncement is not addressed to the wife it becomes ineffective and invalid.
26.The above discussion does indicate that mere pronouncement of Talaq by the husband or merely declaring his intentions or his acts of having pronounced the Talaq is not sufficient and does not meet the requirements of law. In every such exercise of right to Talaq the husband is required to satisfy the preconditions of arbitration for reconciliation and reasons for Talaq. Conveying his intentions to divorce the wife are not adequate to meet the requirements of Talaq in the eyes of law. All the stages of conveying the reasons for divorce, appointment of arbiters, the arbiters resorting to conciliation proceedings so as to bring reconciliation between the parties and the failure of such proceedings or a situation where it was impossible for the marriage to continue, are required to be proved as condition precedent for the husbands right to give Talaq to his wife. It is, thus, not merely the factum of Talaq but the conditions preceding to this stage of giving Talaq are also required to be proved when the wife disputes the factum of Talaq or the effectiveness of Talaq or the legality of Talaq before a Court of law. Mere statement made in writing before the Court, in any form, or in oral depositions regarding the Talaq having been pronounced sometimes in the past is not sufficient to hold that the husband has divorced his wife and such a divorce is in keeping with the dictates of Islam.
It is a fallacious argument that in case of a minor or a woman past menopause, the oral Talaq in the form of Ahsan or Hasan could be pronounced by the husband at any time or at his sweet will as in such cases there is no Iddat. However, the period of Iddat has been specifically defined and even in such cases there is a waiting period of three lunar months even though there is no occurrence of menstruation. The view taken by this Court in the case of Chandbi Ex W/o Bandeshah Mujawar (supra) cannot be accepted as a good law.
27.Pleadings before the Court, though made on oath, either in writing or in oral form, when disputed by the wife, are required to be proved and when it comes to proving all these pleadings the process is governed by the common law viz. the Civil Procedure Code and Evidence Act etc. and mere statement on oath, either in writing or in oral form itself does not prove the factum of divorce as well as valid or effective divorce. If the Talaq pronounced is ineffective or invalid it is no divorce under the Mahomedan Personal Law. It is also required to be noted, at this stage, that though the husband has the right to divorce his wife, he also has the right to revoke the said pronouncement and take her back, as his wife, provided the divorce has not become irrevocable. This also shows the tolerance of Islam that after having uttered divorce once, the wife is provided an opportunity for reformation/ correction and to take steps accordingly so that the institution of marriage is saved. It is possible that sometimes the husband pronounces Talaq in haste and subsequently repents for it and, therefore, before the Talaq has reached its irrevocable stage, the husband has the right to retrieve himself from such an extreme step and reconciliation with the situation and correct himself.
28.Even in case of irrevocable Talaq in the presence of a Qazi or the wifes father or two witnesses the factum of this form of Talaq is required to be proved, if challenged before a competent court in appropriate proceedings. This may involve examining either the Qazi or the father or the witnesses. If there are two witnesses, both of them must be professing Islam. If there is only one male witness and remaining two are women all of them must be professing Islam. Their presence, when the husband pronounced Talaq and his so pronouncing Talaq, are required to be proved if the factum of valid Talaq is questioned by the wife. Mere assertion by the husband, in any form, is not sufficient to hold that he has exercised the right to give Talaq legally and validly.
If any of the witnesses does not profess Islam, the Talaq given in his/ her presence shall be invalid and inoperative.
29.If the husband has not been able to prove his statement regarding divorce given earlier to making such a statement before the Court, there does not exist a Talaq in the eyes of law and such a statement cannot be taken as a fresh declaration of divorce; as mere declaration of divorce is not sufficient, by itself, for a valid divorce. Even if such statement in writing or made orally before the Court is supported by a Talaknama, which may be a record of the fact of an oral Talaq or may be the deed by which the divorce is effected but that supportive document by itself does not lead to a conclusion that the Talaq was valid, effective and legal. Under the Wakf Act there is also a provision of registration of Talaq and a certificate to that effect is issued by the Qazi. In most of these cases, the Talaknamas are customary and unless the factum of Talaq is proved, these documents in isolation have no sanctity in support of a valid Talaq. Mere existence of this document does not make the Talaq valid or legal and, therefore, it is necessary that the factum of Talaq and the stages it is preceded by, are required to be proved before the Court, if disputed by the wife and mere intentions of the husband while making such a statement before the Court cannot be accepted tobe a valid Talaq from the date such a statement was made before the Court and in any form.
Posted on 2002-08-28
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