Talaq and the modes of dissolution of a Muslim marriage

1. Talaq: meaning and capacity

Talaq is the husband's power to dissolve the marriage by his own act. Under classical Sunni law any Muslim husband of sound mind who has attained puberty may pronounce talaq; no witnesses or reasons are required, and a talaq pronounced under compulsion or in intoxication was even held valid by Hanafi jurists. Shia law requires the pronouncement to be oral, in Arabic terms, before two witnesses, and with free consent.

The courts have read restraints into the power. In Shamim Ara v. State of U.P., 2002 INSC 416, (2002) 7 SCC 518, the Supreme Court held that a mere plea of an earlier talaq in a written statement in maintenance proceedings does not dissolve the marriage. The talaq must actually be pronounced, and, following the Quranic injunction, it should be for a reasonable cause and preceded by attempts at reconciliation by arbiters from both families.

2. Talaq-ul-sunnat: the approved forms

• Talaq ahsan (most approved). A single pronouncement made during a tuhr (the period between menstruations), followed by abstinence from intercourse for the period of iddat. The talaq can be revoked, expressly or by resuming cohabitation, at any time before the iddat ends; once it ends, the divorce is final. Where the marriage has not been consummated, or the wife is not subject to menstruation, a single pronouncement suffices.
• Talaq hasan (approved). Three pronouncements made during three successive tuhrs, without intercourse in any of them. The first two are revocable; the third pronouncement makes the divorce irrevocable at once, whatever the stage of the iddat. After it the parties cannot remarry unless the wife lawfully marries another man, the marriage is consummated and then dissolved, and she completes her iddat.

3. Talaq-e-biddat and Shayara Bano

Talaq-e-biddat (the disapproved or “innovated” form) consists of three pronouncements in a single sitting (“I divorce thee thrice”), or a single pronouncement made in clear terms of irrevocable divorce. It took effect immediately and could not be revoked. Hanafi law treated it as sinful but valid; Shia law never recognised it.

In Shayara Bano v. Union of India, 2017 INSC 785, (2017) 9 SCC 1, a five-judge Bench by a 3:2 majority set aside the practice of instant triple talaq.

• Nariman J. (with Lalit J.) held that the Muslim Personal Law (Shariat) Application Act, 1937 made the personal law, including talaq-e-biddat, a rule of decision, so the practice was “law in force” to be tested against Part III. Because it allows the marital tie to be broken whimsically and capriciously without any attempt at reconciliation, it is manifestly arbitrary and violates Article 14. Section 2 of the 1937 Act, to the extent it recognises triple talaq, was declared void.
• Kurian Joseph J. concurred in the result on a narrower ground: what is bad in the Quran cannot be good in Shariat, and triple talaq, being against the Quran, has no legal sanction.
• Khehar C.J. and Nazeer J. (dissenting) held it part of personal law protected by Article 25, but injuncted husbands from pronouncing it for six months and asked Parliament to legislate.

4. The Muslim Women (Protection of Rights on Marriage) Act, 2019

Parliament followed up with the 2019 Act, deemed to have come into force on 19 September 2018.

• Section 3: any pronouncement of talaq-e-biddat, or any other similar form of talaq having the effect of instantaneous and irrevocable divorce, by words spoken or written, or in electronic form, is void and illegal.
• Section 4: a husband who pronounces it is punishable with imprisonment up to three years and fine.
• Section 5: the wife is entitled to a subsistence allowance for herself and dependent children, fixed by the Magistrate.
• Section 6: she is entitled to custody of her minor children.
• Section 7: the offence is cognizable if information is given by the wife or a relative by blood or marriage; compoundable at the instance of the wife with the Magistrate's permission; and bail may be granted only after hearing the wife.

The talaq ahsan and hasan forms are untouched by the Act.

5. Talaq-e-tafweez (delegated divorce)

The husband may delegate his power of talaq to the wife or a third person, absolutely or conditionally, temporarily or permanently. The delegation is often made in a pre-nuptial or post-nuptial agreement, for example that the wife may divorce herself if the husband takes a second wife or fails to maintain her for a stated period. The conditions must be reasonable and not opposed to public policy. When the condition occurs, the wife may exercise the power and the divorce is effective as a talaq by the husband. A permanent delegation is irrevocable. Tafweez is the most effective device a Muslim wife has for securing her position, and it has been upheld by the courts repeatedly.

6. Khula and mubarat

• Khula (“laying down”) is divorce at the instance of the wife, who gives or agrees to give consideration to the husband for her release, usually by giving up her dower. Once the husband accepts the offer it operates as a single irrevocable divorce, and the wife must observe iddat. The Kerala High Court (Division Bench, K.C. Moyin v. Nafeesa, 2021) held that a Muslim wife may effect khula without the husband's consent where he unreasonably refuses, after an offer to return the dower and an attempt at reconciliation.
• Mubarat is dissolution by mutual consent, where both parties desire the separation. Either may make the offer; on acceptance the divorce is irrevocable. Among Sunnis no particular form is needed; Shia law requires a formal pronouncement in Arabic before witnesses.

7. Ila, zihar and lian

• Ila: the husband swears not to have intercourse with his wife and abstains for four months. Under Hanafi law the marriage is dissolved on expiry of the four months without judicial process; under Shafi law the wife must sue. Resuming cohabitation within the period cancels the vow. Ila is practically obsolete in India.
• Zihar: the husband compares his wife to his mother or another woman within prohibited degrees. Until he performs expiation (freeing a slave, fasting for two months, or feeding sixty poor persons), the wife may refuse him cohabitation and may seek a judicial divorce.
• Lian: where the husband falsely accuses his wife of adultery, she may sue for divorce. The marriage is dissolved only by a decree of the court, and the husband may retract the charge before the hearing ends, which defeats the suit. A false charge of unchastity is also cruelty under section 2(viii) of the 1939 Act.

8. Judicial divorce: section 2 of the Dissolution of Muslim Marriages Act, 1939

A woman married under Muslim law may obtain a decree for dissolution on any of these grounds:

• (i) the husband's whereabouts have not been known for four years;
• (ii) he has neglected or failed to provide for her maintenance for two years;
• (iii) he has been sentenced to imprisonment for seven years or more;
• (iv) he has failed, without reasonable cause, to perform his marital obligations for three years;
• (v) he was impotent at the time of marriage and continues to be so;
• (vi) he has been insane for two years or is suffering from a virulent venereal disease (the Personal Laws (Amendment) Act, 2019 omits the words “leprosy or”, with effect from a date the Central Government notifies);
• (vii) option of puberty: she was given in marriage by her father or guardian before fifteen, repudiated the marriage before eighteen, and it was not consummated;
• (viii) cruelty, which includes habitual assault or cruelty of conduct even without physical ill-treatment, association with women of evil repute, attempting to force her into an immoral life, disposing of her property or obstructing her legal rights over it, obstructing her religious observance, and, if he has more wives than one, failing to treat her equitably as the Quran enjoins;
• (ix) any other ground recognised as valid for dissolution under Muslim law.

The provisos add that no decree on ground (iii) is passed until the sentence is final; a decree on ground (i) does not take effect for six months, and is set aside if the husband appears and is willing to perform his conjugal duties; and before a decree on ground (v) the husband may ask for a year to prove that he has ceased to be impotent. Section 4 provides that a wife's renunciation of Islam does not by itself dissolve the marriage. Non-payment of prompt dower is not by itself a ground, but it can support a plea under ground (ix) or justify the wife's refusal to cohabit.

How this is examined

“Talak and its modes” is set in almost every paper as a 10-mark essay: classify the modes, explain ahsan, hasan and biddat with the revocable/irrevocable point, then Shayara Bano and the 2019 Act, then tafweez, khula and mubarat. A separate question or short note asks for the grounds of divorce under the 1939 Act. Problems typically give a husband who sends “talaq talaq talaq” by message and ask about its validity and the wife's remedies: the talaq is void under section 3, the husband is liable under section 4, and the wife claims subsistence allowance and custody under sections 5 and 6.