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WHAT IS TALAQ ? MODES OF TALAQ AND CONDITION OF TALAQ.

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TALAQ means dissolution of marriage tie. TALAQ in its original sense means repudiation or rejection but under Muslim Law, it means a release from the marriage tie, immediately or eventually. It is a generic name for all kinds of divorce, but it is particularly applied to the repudiation by or on behalf of husband.

Moonshee Buzloor Rahim Vs. Laleefutoon Nisa

In this case it was said that under Muslim Law TALAQ is the mere arbitary act of a Muslim husband who can pronounce the word TALAQ at any time. It is not a necessary for him to obtain prior approval of his wife for the dissolution of his marriage.

So TALAQ is an act of repudiation of marriage by the husband in exercise of his power which has been conferred on him.

CONDITION FOR THE VALIDITY OF TALAQ

  1. AGE OF HUSBAND: Any Muslim husband who has attained puberty can give his wife ” TALAQ”.
  2. SOUND MINDED: Any Muslim person of sound mind, who has attained puberty can give ”TALAQ” his wife.
  3. DUMB PERSON PRONOUNCING TALAQ: A dumb may also effect TALAQ by intelligible signs.
  4. TALAQ WITH AN OPTION: According to Sunni Law reputation can’t be qualified by option. But according to Shia Law if TALAQ to which an option or a condition is attached then it is absolutely void.
  5. WITNESS: Under Sunni Law TALAQ do not require the presence of witness but in Shia Law it require.
  6. TALAQ UNDER COMPULSION : Under Muslim Law TALAQ pronounced under compulsion is void.

DIFFERENT MODES OF TALAQ

A TALAQ may be effected by the husband in any of the following modes———–

  1. TALAQ-UL-SUNNAT,
  2. TALAQ-UL-BIDDAT,
  3. ILA,
  4. ZIHAR.

TALAQ-UL-SUNNAT: TALAQ which is effected in accordance with the traditions of Prophet Muhammad , is known as TALAQ-UL-SUNNAT. Following are the two sub-division of TALAQ-UL-SUNNAT———-

a. Ahsan,

b. Hasan

AHSAN : The Arabic word ”AHSAN” means ‘best’ or ‘very proper’. So it is the best kind or most approved mode of TALAQ. The conditions to be in AHSAN form are as follows——

  1. The husband must pronounce the formula of TALAQ in a single sentence.
  2. The husband must pronounce the word TALAQ in the state of purity or in TUHR. TUHR means a period when a woman is free from her menstrual course.
  3. The husband must abstain from sexual intercourse for the period of IDDAT.

HASAN: The Arabic word HASAN means ‘good’ or ”proper”. A TALAQ pronounced in HASAN form is of lesser worth than the TALAQ in AHSAN form. To be in HASAN form ,the conditions are as follows—-

  1. There must be three successive pronouncement of the formula of divorce,
  2. In the case of menstruating wife, the first pronouncement should be made during a period of TUHR, the second during the next TUHR. And the third during the succeeding TUHR.
  3. In the case of non-menstruating wife, the pronouncement should be made during the successive interval of 30 days.
  4. No sexual intercourse should take place during these three periods of TUHR.

TALAQ-UL-BIDDAT: TALAQ-UL-BIDDAT is disapproved mode of TALAQ. It is sinful and irregular form of divorce. It was introduced by OMEYYADS to escape the strictness of law.

Shias and Malikis sect. of Islam do not recognize TALAQ-UL-BIDDAT.

Shias and Malikis sect. of Islam do not recognize TALAQ-UL-BIDDAT. But the Sunni Law recognize TALAQ-UL-BIDDAT , though it is sinful for them.

WHAT ARE THE REQUIREMENTS TO BE INCLUDED IN TALAQ-UL-BIDDAT ?

  1. Three pronouncement made during a single TUHR either in one sentence,
  2. A single pronouncement made during a TUHR clearly indicating an intention irrevocable to dissolve the marriage.

3. ILA: WHAT IS ILA ?

ILA means vow of continence. When a sound minded ,major husband will have not have sexual intercourse with his wife and leaves the wife, to observe IDDAT ,he is said to be make ILA. It is valid ILA if the husband says to his wife,” I swear by God, that I shall not approach tee’.

WHAT ARE THE INGREDIENTS OF ILA ?

  1. The husband must be of sound mind and must have attained majority.
  2. The husband should take a vow or by God,
  3. The husband will not have sexual intercourse with his wife,
  4. The husband should abstain from sexual intercourse.

KINDS OF TALAQ-UL BIDDAT

  1. WRITTEN DIVORCE,
  2. TRIPLE DIVORCE.

WHAT IS WRITTEN DIVORCE ?

Written divorce is generally done through ”TALAQNAMA” with the presence of witnesses.

TRIPLE DIVORCE

It is recognized but disapproved form of divorce. The children born after the triple divorce are illegitimate.

ZIHAR

Zihar means injurious Assimilation. If a sane and adult husband compares his wife to his mother or any other female within a prohibited degree, the wife has a right to refuse herself to him until he has performed penance. In default of expiation by the penance, the wife has a right to apply for a judicial divorce, called MULLA.

WHAT ARE THE LEGAL EFFECTS OF ZIHAR ?

  1. Sexual intercourse becomes unlawful,
  2. Husband is rendered liable to expiation by penance,
  3. The wife can claim judicial separation if the husband persists in wrong doing.

This form of divorce is no longer used.

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THE SHARIAT ACT 1937.

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The Muslim Personal Law ( SHARIAT ) Act, 1937 ,is by far the most important legislation in the closing years of British rule in India. The SHARIAT Act,1937 came into operation on 7th October ,1937. It applies to every Muslim of India. This Act is applicable throughout India except the State of Jammu and Kashmir.

This Act aimed at correcting the defects of previous Muslims Acts. The main aim of the SHARIAT Act was to abrogate customs which were contrary to Muslim Law, if appears curious, to say the least ,that many things have been left on the sweet wish of parties for the inclusive of this provision. This Act is not retrospective.

WHAT ARE THE APPLICATIONS OF THE SHARIAT ACT,1937 ?

It is an Act to make provision for the application of the Muslim Personal Law ( SHARIAT) to Muslims in India. Prior to it, different rules were applicable in different parts of this country . Hence to govern all the Muslim law by a Uniform Muslim Law was necessary. The objects of this Act was to make provision for the application of the Muslim Personal Law (SHARIAT) to Muslims in India.

Now in India all the Muslims are governed by the Muslim Personal Law , notwithstanding any custom or usage. But all the rules of Muslim Law are not applicable in India.

WHAT ARE THE SUBJECTS IN WHICH THE SHARIAT ACT,1937 IS APPLICABLE ? Following are the subjects in which the SHARIAT Act,1937 is applicable——-

  1. Intestate succession,
  2. Special properties of females,
  3. Marriage ,
  4. Dissolution of marriage,
  5. Maintenance,
  6. Dower,
  7. Guardianship,
  8. Gifts,
  9. Trust and trust properties,
  10. Waqfs.

WHAT ARE THE SUBJECTS IN WHICH THE MUSLIM PERSONAL LAW ( SHARIAT) ACT IS NOT APPLICABLE ?

In the following subjects the Muslim Personal Law ( SHARIAT) Act 1937 is not applicable——————

  1. Any matter arising before the Act,
  2. Custom alone superseded which does not affect any statutory provision superseding the Muslim Law.
  3. Question relating to following kinds of waqfs—–a. Charitable and religious institutions, b. Charities and Charitable institutions.
  4. Matters which are not expressly covered by the Act,
  5. Questions relating to agricultural land——Gift and family settlement of agricultural land will continue to be subject to customary law. INTERPRETATION OF THE SHARIAT ACT,1937 Before this Act , the position of Muslim women ,in few cases ,was seriously undermined by the prevailing customs. The object of this Act is firstly to abrogate custom and usage ,which may be contrary to the principles of Muslim Law. section 2 of this Act refers to trusts and waqfs. Thus on the one hand ,if a Khoja Muslim who is governed by the Hindu Law in matters of succession, can give away the whole of his property by way of will notwithstanding the provision of the SHARIAT Act,1937. The Act differentiates adoptions, wills and legacies from other subjects of personal law mention in section 2. The SHARIAT Act 1937 is not retrospective. It means it has no validity prior to the 7th October,1937; the date of its commencement. After passing this Act the Muslim KHOJA community are governed by Muslim Law in all matters enumerated in section 2 of this Act including intestate succession. Thus a KHOJA can still dispose of whole of his property by way of will. After this Act, the Merchant community of Islam are governed by Muslim Law .And the Muslim Community MEMONS are governed by Hanafi Law in all matters ,only those exceptions that are allowed under this Act.
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WHO IS A MUSLIM ? WRITE ABOUT THE APPLICATION OF MUSLIM LAW IN INDIA ?

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A Muslim is a person ———————-

  1. who believes in the mission of Mohammad as Prophet, or
  2. who says that there is one God and Mohammad is his Prophet,
  3. Who believes in a number of other essential beliefs in God and Mohammad. According to Amir Ali, a Muslim is a person who accepts the unity of God and the prophetic character of Mohammad. So a Muslim is a person who believes that God is one and Mohammad is the Prophet. Thus to be a Muslim only two beliefs is required————– a . Allah is one, and b. The prophethood of Mohammad. A person can be a Muslim by origin and by conversion. Muslim by conversion may be further subdivided into the followings categories——-1. Muslims who profess Islam, 2. Muslims who undergo formal conversion. So from the above discussion we can come to the conclusion that a person who subscribe the basic tenets of Islam ,is a Muslim. The basic tenets of Islam are the following two————-1. God is one, 2. Mohammad is the Prophet of God. CASE LAWS RELATED TO THE CONCEPT ‘ WHO IS A MUSLIM ” Case Law 1… Bhaiya Sher Bahadur v. Bhaiya Ganga Baksh Singh In this case the Privy Council held that the illegitimate son of a Hindu by a Muslim lady, who was brought up as a Hindu and married to a Hindu girl according to Hindu rites, was held to be a Hindu. Case Law 2.. Jiwan Khan Vs. Habib In this case the Lahore High Court held that people of Shia Community boycotts first three Caliphs but they trust in one God and the Prophethood of Mohammad , therefore, they too are Muslims. WHAT IS THE ORIGIN OF MUSLIM LAW Muslim Law originates from divinity. Muslim Law is a result of communication of God and men’s act. The place of Muslim Law’s origin is Arabia where Prophet Mohammad promulgated Islam. The word Islam does not express any association with a particular person, people or country. In secular sense Islam means ” establishment of peace”. Religiously Islam means ” submission to the will of God”. So to create a sense of obedience and submission to Allah , the Muslim Law was originated. WHAT ARE THE APPLICATIONS OF MUSLIM LAW IN INDIAN LEGAL SYSTEM ?

In India Muslims are governed by their own personal law. Generally in India the Muslim Law is not applicable in all matters. The Parliament and various State Legislatures have passed various enactments which are applicable to all citizens irrespective of their caste and creed.

In India Muslim Law is administered by Civil Courts, High Courts and the Supreme Court. In India Muslim Law is treated as Native Law. Muslim Law is considered to be the part and parcel of the Indian Legal System.

WHAT ARE THE MATTERS OF INDIA WHERE MUSLIM LAW IS APPLICABLE ?

In the following cases Muslims are governed by their personal law:

  1. Marriage,
  2. Dower,
  3. Divorce,
  4. Family matters,
  5. Adoption,
  6. Minority ,
  7. Guardianship,
  8. Bastardy,
  9. Succession,
  10. Inheritance,
  11. Female’s property,
  12. Wills,
  13. Legacies,
  14. Gifts,
  15. Joint family’s matters,
  16. Partition,
  17. Any other religious usage or institution.

WHAT ARE THE MATTERS WHERE MUSLIM LAW IS NOT APPLICABLE TO INDIAN MUSLIM ? In India Muslims are not governed by their traditional law in the matter of crimes and law of evidence.