Conditions of pronouncing Divorce

Question:  What are the conditions for pronouncing Talaaq?

Answer: 

1) Capacity: Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce talaaq. It is not necessary for him to give any reason for his pronouncement. A husband, who is minor or of unsound mind cannot pronounce talaaq. Talaaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then talaaq pronounced by him during “lucid interval” is valid. The guardian cannot pronounce talaaq on behalf of a minor husband. When insane husband has no guardian, the Qazi or a judge has the right to dissolve the marriage in the interest of such a husband.

2) Free Consent: Except under Hanafi law, the consent of the husband in pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage.

3) Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered by the husband or he may write a Talaaqnama. No specific formula or use of any particular word is required to constitute a valid talaaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient. It need not be made in the presence of the witnesses.

4) The words of talaaq must clearly indicate the husband’s intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.

Procedure of Talaaq/Divorce

Q: What is the legal procedure of registering Talaaq?

Answer:

Any man who wishes to divorce his wife shall, as soon as possible after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife. A talaq, shall not be effective until the expiration of ninety days from the day on which notice is delivered to the Chairman however if the wife is pregnant at the time of talaq is pronounced, talaq shall not be effective until the pregnancy ends. Within thirty days of the receipt of notice the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation. If the couple fails to reconcile in a period of ninety days following the written notification then the divorce is final.

Khula

Question: What is Khula?

Answer:

Khula is a right to terminate the marriage, possessed by women as against the right of talaaq in men. Khula is passed by the court when the Court comes to the conclusion it is no more possible for the spouses to live together within the limits ordained by God. The wife desirous of obtaining termination of marriage by way of Khula shall part with her dower or a part of some other property as compensation to the husband.

Women's right to divorce

Question:  Can I delegate right to divorce to my wife at the time of nikkah?

Answer:

Talaaq-i-tafweez is when Muslim husband delegates his power of pronouncing divorce to his. He may delegate the power absolutely or conditionally, temporarily or permanently. A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”.

Circumstances that are relevant in dissolution of marriage/marriage

Question: What are the grounds for decree for dissolution of marriage considered by the court?

Answer:

A women married under Muslim Law shall be entitled to obtain decree for the dissolution of her marriage on any of the  following grounds:

1)      that the whereabouts of the husband have not been known for a period of four years;

2)      that the husband has neglected or has failed to provide for her maintenance for a period of two years;

3)      that the husband has been sentenced to imprisonment for a period of seven years or upwards;

4)      that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

5)      that the husband was impotent at the time of the marriage and continues to be so;

6)      that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

7)      that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated;

8)      that the husband treats her with cruelty, that is to say, habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

9)      that he associates his wife with women of evil repute or leads an infamous life, or

10)    attempts to force her to lead an immoral life, or

11)    disposes of her property or prevents her exercising her legal rights over it, or

12)   obstructs her in the observance of her religious profession or practice, or

13)   if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran; and

14)   on any other ground which is recognized as valid for the dissolution of marriages under Muslim   law

 

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