Family LawLegal Soul BlogDivorce or Talaq

Divorce or TALAQ  طلاق

Talaq Meaning

• Separation by the will of husband and, without the intervention of a Court
• It means repudiation of marriage by the husband.

 

It is peculiar because Muslim Husband has unrestricted right to divorce without giving any reason. Muslim law does not require the existence of any fault or matrimonial offence as an excuse for divorce. It is applicable where it is impossible for the spouses to live together so they must separate peacefully. However, an indirect check upon this right is the obligation of husband to pay the dower upon the dissolution of marriage.

• CONDITIONS FOR A VALID TALAQ:

Capacity

1. Every Muslim husband of sound mind and who has attained the age of puberty is competent to pronounce Talaq. The guardian cannot pronounce Talaq on behalf of a minor husband.
2. Some jurists also consider that even Talaq pronounced against a minor or insane wife is void and ineffective.

 Free Consent:

Except under Hanafi law, the consent of the husband in pronouncing Talaq must be free. Under Hanafi law, a Talaq pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc. is valid and dissolved the marriage.

 

• Essential of Talaq under Sunni Law:

(a) Talaq may be in oral or in writing.

(b) No particular word is required to constitute Talaq but the expression should clearly indicate the husband’s desire to dissolve the marriage.

(c) It need not be made in presence of witnesses.

Essential of Talaq under Shia Law :

1. Talaq must be pronounced orally except where husband is unable to speak.
2. It must be pronounced in the presence of two competent witnesses (i.e. every Muslim male who has attained the age of puberty and is of sound mind).
3. Moreover in place of one male two adult female of sound mind may be substituted.
4. It requires the use of specific Arabic words in the specific formulae in the pronouncement of Talaq.
5. Express words: The words of Talaq must clearly indicate the under shia law
6.  The presence of wife at the time of pronouncement of Talaq is necessary. The name of wife must be specifically referred in the pronouncement. Where the husband has more than one wife he must specify and name the wife against whom he is pronouncing Talaq.

Conditional Divorce or Talaq Sunni Law:

A Talaq may either be absolute(i.e. unconditional) or subject to a condition or contingent(dependent upon happening of an uncertain future event).

A conditional or contingent Talaq becomes effective only upon fulfillment of the condition or happening of future event.

Under Shia Law  Conditional or contingent talaq is void and infective:

KINDS OF TALAQ under sunni law

1. Talaq Talaq–ul-Sunnat (Revocable)
2. Talaq Ahsan (Most Proper)
3. Talaq Hasan (Proper)
4. Talaq-ul-Bidaat (Irrevocable)

 

1. TALAQ-UL-SUNNAT (REVOCABLE TALAQ)

It is regarded to be the approved form of Talaq.

It is based on Prophet’s tradition (Sunna). The Prophet always considered Talaq as an evil. If at all this evil was to take place the best possible formula was one in which there was possibility of revoking the effects of this evil so the Prophet recommended revocable become Talaq final at as the once. consequences There is do possibility not of compromise and reconciliation between husband and wife. It is also called Talaq-ul-Raje.

It is followed by both Shia and Sunnis.

It may be pronounced either in Ahsan or Hasan form.

 

1. TALAQ-UL-AHSAN (MOST PROPER)

 

It is the most proper form of repudiation of marriage because there is possibility of revoking the pronouncement before the expiry of the Iddat period and the evil words of Talaq are to be uttered only once. In this Talaq there is single declaration during the period of purity followed by no revocation by husband for three successive period of purity. Formalities required:

Husband has to make single pronouncement of Talaq during the Tuhr of the wife (i.e. the period of purity which is the period between two menstruations). But if woman is not subjected to menstruation either because of old age or pregnancy, a Talaq may be pronounced anytime.

After this wife has to observe Iddat of three monthly courses. If she is pregnant at the time of pronouncement then Iddat is till the delivery of the child. For Talaq to become final and effective the husband should not revoke (either expressly or impliedly) the Talaq within the period of Iddat . Cohabitation with the wife is an implied revocation.

 

1. TALAQ HASAN (PROPER)

 

This is also regarded as proper and approved form of Talaq. Here also there is a provision of revocation but it is not the best mode because the evil words of Talaq are to be pronounced three times in the successive Tuhrs. Formalities Required:

1. The husband has to make a single declaration of Talaq in a period of Tuhr.
2. In next Tuhr there is another single pronouncement for second time.
3. If no revocation is made after first or second declaration then the husband has to make the third pronouncement in the third period of Tuhr. After this Talaq becomes irrevocable and marriage dissolves and wife has to observe Iddat period.
4. In order to make an effective Talaq the words must be

 

1. TALAQ-UL-BIDAAT (IRREVOCABLE TALAQ)

 

It is a disapproved mode of divorce. A peculiar feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. It is also called Talaq -ul-Bain. This mode of Talaq was introduced by the Omayyad Kings because they found the checks in the Prophet’s formula of Talaq inconvenient to them. It is in practice among Sunni Muslims. Under Shia law irrevocable Talaq is not recognized. Formalities required:

 

1. The husband may make three pronouncements in a period of purity(Tuhr ) saying
2. “I divorce thee, I divorce thee, I divorce thee”

• or he may also declare in one sentence saying

1. “I divorce thee thrice”
2. or
3. “I pronounce my first, second and third Talaq”.

• The husband may make only one declaration in a period of purity expressing his intention to divorce the wife irrevocably saying:
• “I divorcee thee irrevocably” or “I

 

Preparation of Divorce Papers  at “Legal Soul”

​If a Husband is seeking to give divorce to his wife or on the other hand if a wife is seeking to exercise her delegated right of divorce in her Nikha-Nama, then at ” Legal Soul” we provide the facility for the preparation of Divorce papers. If both parties agree to divorce each other then a mutual divorce deed or Mubarat Nama is  also prepared here at ” Legal Soul”.

A Divorce Deed is prepared wherein a brief history of marriage and child description is narrated, which is supplemented with terms and conditions of divorce if any. It is also mentioned that the amount of “Haq Meher” is returned by way of a cheque/ Pay order and the same is tendered along with original Divorce Papers. The Divorce Deed is couriered to the recipient and it is ensured that the same is received.

What Legal Soul can do Online for you?

• Draft Divorce Deed as per Pakistani Laws
• Acknowledgment of Service of Divorce Deed
• Application to the Concerned Union Council for registration of Divorce Deed
• Representation before the Union Council for Confirmation of Divorce

Obtaining Confirmation of registration of Divorce from the Union Council